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The Latest Breaking News from Scalia

On Monday, the Supreme Court heard oral argument in Murthy v. Missouri. Justices Kavanaugh and Kagan--who both worked in the White House--stated that it was fairly common for government officials to "berate" the press. Justice Kavanaugh observed that "experienced government press people throughout the federal government . . .. regularly…

Reason

Judges Make Law, But . . .

I was revising a paper on the relationship between equity and property, and I had occasion to look up this classic line from Justice Scalia: I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense "make" law. But…

Reason

Why Does The Phrase "Not Herein Otherwise Provided For" Appear In The Appointments Clause?

Earlier in the Constitutional Convention, the legislature had the power to appoint judges, ambassadors, and the treasurer. But that power was later stripped.

Reason

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In Trump v. Anderson, the Respondents' Theory Would Render Unconstitutional Every Speaker and President Pro Tempore Since 1789, as Well as President Grant's VP and Presidential Candidate George McGovern

Justice Scalia erred because there are no “Officers of the United States” appointed outside Article II, Section II.

Reason

Natelson on the Offices and Officers of the Constitution in 1788 and 1868

"Mr. Tillman has been joined by another legal scholar, Josh Blackman. Together, they have tried to reconstruct the meanings of all these words and phrases."

Reason

The 6/13/2000 Memorandum to Chief Justice Rehnquist: "Compensation Increase for Justices—Response to Justice Thomas—Guidance Needed"

Some actual reporting by ProPublica.

Reason

Jefferson Davis: President of the United States?

Five Responses to the Jefferson Davis Horrible

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Farewell to the Mayflower

Next year, the Federalist Society National Lawyers Convention will (likely) be at the Washington Hilton.

Reason

Michigan Court of Appeals Upholds Ban on Guns at University of Michigan

From Wade v. Univ. of Michigan, decided yesterday by the Michigan Court of Appeals (Judges Mark Cavanagh and Deborah Servitto); the ban covered all university property, which I take it includes dorms and open spaces: In Bruen, the Court stated that it was "settled" that arms carrying could be prohibited…

Reason

Conservatives Should Not Be Surprised By Justice Barrett's Cautious Approach

Barrett was added to the SCOTUS short-list only seventeen days after she was confirmed to the Seventh Circuit.

Reason

Progressives Should Be Grateful For President Trump's Not-So-Conservative SCOTUS Picks

Recently, Ron DeSantis, the Governor of Florida and GOP presidential candidate, offered a mild criticism of President Trump's three Supreme Court nominees. "I respect the three [Trump] appointees," DeSantis said, "but none of those three are at the same level of Justice Thomas and Justice Alito." DeSantis is not wrong.…

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Roberts the Creditor, Roberts the Debtor

Kavanaugh the follower.

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Justice Thomas Declines To Extend Non-Originalist Confrontation Clause Precedent

Don't act surprised when Thomas narrowly reads made-up Brennan decision from 1968 that itself reversed precedent.

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Justice Stevens's Papers Reveal How The Fortune Cookies Were Baked In Lawrence v. Texas

Believe it or not, Justice Kennedy's final opinion toned down some of the "awkward language."

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A Tale of Two Originalists

Justice Gorsuch v. Justice Thomas in Brackeen.

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From Windsor to Brackeen

Scalia was right: "The only thing that will 'confine' the Court's holding is its sense of what it can get away with."

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Roberts Waves the White Flag of Textualism in Allen v. Milligan

Justice Scalia would be rolling over in his grave.

Reason

Does a Footnote in Sackett II Indicate How SCOTUS Will Resolve the Affirmative Action Cases?

Could the Court treat Justice Powell's Bakke opinion the way it treated Justice Kennedy's Rapanos opinion?

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Justice Kavanaugh's "Principal Concurrences"

On the Supreme Court, there is a hierarchy for listing opinions. The majority opinion always comes first. When the Court is fractured, and there is no clear majority, the opinion with the most support is usually listed first. When the case is an absolute cluster, sometimes the opinion by the…

Reason

In Sackett v. EPA, the Supreme Court Cuts Back Federal Regulatory Authority Over Wetlands

The Clean Water Act decision was a unanimous win for the Sacketts, and a 5-4 victory for Justice Scalia's 2006 Rapanos v. United States plurality.

Reason

Just How Bad was that New York Times Piece on Supreme Court Justices Teaching at Scalia Law?

This bad: The documents show how Scalia Law has offered the justices a safe space in a polarized Washington — an academic cocoon filled with friends and former clerks, where their legal views are celebrated, they are given top pay and treated to teaching trips abroad, and their personal needs…

Reason

Can the Supreme Court "Develop and Apply Customary International Law"?

Justice Gorsuch raises the question that the majority elides.

Reason

The Good and Bad of the Fifth Circuit's Abortion Pill Ruling

The appeals court's unpublished order avoids some of the district court's errors, but still has some significant problems, especially with regard to standing.

Reason

Law School Free Speech, Wokeness, and "The Etiquette of Equality"

A different take.

Reason

"Viability" in Lucas v. South Carolina Coastal Council and Planned Parenthood v. Casey

Justice Blackmun: "Viable is a good medical term, it isn't a legal term, but the lawyers have taken it over and the judges too."

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