The Latest Breaking News from Gorsuch

Let's move on to other variants. One looks at whether a law has any exceptions at all, and, if religious reasons are not among those exceptions, automatically applies strict scrutiny. It was proposed by Justice Kavanaugh in his dissent in Calvary Chapel Dayton Valley v. Sisolak, and possibly embraced by…

Here I will consider how the MFN theory was expanded to its present bloated proportions. Recently members of the Court, and sometimes a majority, have developed variants of MFN that are far more far-reaching and skeptical than the modest heightened scrutiny suggested by Lukumi. The key innovation, pioneered by Justice…

Eugene has kindly invited me to contribute a series of posts, briefly describing my taxonomy of new variants of the most-favored-nation theory of religious liberty (forthcoming in the Iowa Law Review). I'm particularly pleased by the invitation, because I wrote the piece in conscious emulation of the kind of careful…

The major questions doctrine inverts the Chevron doctrine, is indeterminate, and, as a practical matter, will encourage courts to engage in something more akin to political punditry than law.

As (yet another) Texas v. U.S. slides from the shadow docket to the rocket docket

Both laws seek to evade judicial review by delegating enforcement exclusively to private parties.

Today the Respect for Marriage Act passed the House by an unexpectedly large margin. And there is movement afoot to see if the bill will garner ten Republican votes to break a Senate filibuster. Ilya addressed the bill here. I'd like to add five more thoughts. First, one of the…

Justice Gorsuch embraces Worcester v. Georgia, while Justice Kavanaugh rejects the great Chief Justice.

In Oklahoma v. Castro-Huerta, the majority and dissent vigorously disagreed about the scope and meaning of federal Indian law. In particular, Justices Kavanaugh and Gorsuch contested how certain precedents, construed over the course of two centuries, should be read. Indeed, the majority and dissent bickered about what those cases actually…

I've now finished reading Oklahoma v. Castro-Huerta. I'll say this much: I found Justice Gorsuch's dissent here far more persuasive than I found his majority opinion in McGirt. Yet, if McGirt had come out the other way, there probably would have been no need for the Court to decide Castro-Huerta.…

A famous line from NFIB v. Sebelius shows up in U.S. v. Taylor