May the President Prospectively Appoint a Supreme Court Justice to a Seat that Is Not Yet Vacant? (Updated)
A newly released memo from the Office of Legal Counsel suggests the answer is "yes."
Judiciary
Ketanji Brown Jackson's 'Partial Tribute to the Judicial Philosophy of Originalism' Earns Conservative Praise
“I believe that the Constitution is fixed in its meaning,” said the Supreme Court nominee.
3 Questions for Supreme Court Nominee Ketanji Brown Jackson
The SCOTUS contender should discuss her views on congressional power, unenumerated rights, and qualified immunity.
Should Ketanji Brown Jackson Recuse in Harvard Admissions Case?
Does her position on Harvard University's Board of Overseers require or counsel her recusal once she is confirmed?
Do Circuit Courts Have "Supervisory Power" Over District Courts?
An interesting concurrence to one of today's Supreme Court decisions.
Biden Nominates Ketanji Brown Jackson to the Supreme Court
The SCOTUS pick has shown admirable judgment in criminal justice cases.
The Supreme Court Fight We Should Be Having
There are more productive things to argue about than identify politics.
Stephen Breyer's Retirement Is Good News for the Fourth Amendment
Breyer’s deference to law enforcement often led him to sell the Fourth Amendment short.
What Progressives Get Wrong About Judicial Review
Without judicial review, liberals confronting a Republican-controlled legislature will have no opportunity to seek constitutional redress in federal court.
How Big a Mark Will President Biden Make on the Federal Judiciary? (Updated)
The Biden Administration is off to a fast start nominating and appointing federal judges, but will this continue?
The Laissez Faire Origins of the Supreme Court's Abortion Precedents
“All of those…just come out of Lochner.”
Abortion, Marbury v. Madison, and What's "Written in the Constitution"
The oft-heard argument that something isn't "written in the Constitution" is not as compelling as it might seem. Sometimes, it's outright false.
Overheated and Inaccurate Commentary on Courts and Climate
Demand Justice's Balls and Strikes provides more heat than light.
Federal Judges Failed to Recuse in Hundreds of Cases
A Wall Street Journal report shows that federal judges do not always recuse when cases implicate their financial holdings.
The Justice Department May Have Found a Winning Argument Against the Texas Abortion Law
“The Supreme Court has repeatedly recognized the authority of the United States...to seek equitable relief to vindicate various federal interests and constitutional guarantees.”
Justice Breyer Thinks Supreme Court's Refusal to Intervene in SB8 Litgation Was "Very Bad"
The Justice continues his media book tour without commenting on his potential retirement.
Judge Don Willett on Supreme Stalemates
An interesting exploration of what happens when high courts are evenly divided.
Stephen Breyer Makes the Liberal Case Against Court Packing
In his new book, the 83-year-old justice warns court-packing advocates to “think long and hard before embodying those changes in law.”
Are Supreme Court Term Limits Coming Soon?
Biden’s Presidential Commission on the Supreme Court seems to favor judicial term limits.
Trump Judicial Appointees Clash Over Qualified Immunity and 'the Woke Constitution'
The fight over qualified immunity divides "conservative" judges on the 5th Circuit.
Why Is It So Hard To Sue a Bad Cop?
"Redress for a federal officer's unconstitutional acts is either extremely limited or wholly nonexistent."
Is Microsoft 'Out To Get Conservatives'? And Is That Jim Jordan's Business?
Plus: Biden to back bill ending crack/cocaine sentencing disparity, the truth about tech startup creation, and more...
The Trouble With 'Common Good Originalism'
A new conservative faction embraces "authoritative rule for the common good."
Is Stephen Breyer About To Retire? His Clerk-Hiring Spree Suggests Otherwise.
Progressive activists are pushing the 82-year-old justice to step down.
Joe Biden, Who Says He's 'Not a Fan of Court Packing,' Just Created a Presidential Commission to Study Court Packing
The Presidential Commission on the Supreme Court of the United States will examine “the membership and size of the Court.”
Trump's Bump Stock Ban Just Lost Big in Federal Court
“It is not the role of the executive—particularly the unelected administrative state—to dictate” the terms of criminal law, said the 6th Circuit.
'If You Wear a Federal Badge, You Can Inflict Excessive Force on Someone With Little Fear of Liability,' Complains Judge Don Willett
A federal judge protests the Supreme Court’s “rights-without-remedies” Bivens doctrine.
A Libertarian Judge Champions Privacy Rights Against Warrantless Police Searches
Justice Clint Bolick dissents in Arizona v. Mixton.
Biden's Judicial Picks Should Include Lawyers Who Battled the Government in Court
The incoming president can bring some much-needed professional diversity to the federal bench.
The Trouble With John Roberts' Brand of Legal Conservatism
Is the chief justice just a politician in robes?
"Tear Down This Judicial Paywall"
The federal judiciary should not be charging for access to public court records.
The GOP's Great Self-Beclownment
What to say to a political party that keeps trying to overturn the results of an election?
This Woman Permanently Lost Her Second Amendment Rights Because She Lied on Her Taxes
Is this the Supreme Court’s next big gun rights case?
Should Justice Barrett Recuse from 2020 Election Litigation? (Updated)
There's no precedent for a recusal, but there's also no precedent for the current situation.
How Big Can the Ninth Circuit Get?
The Judicial Conference is recommending additional judges for what is already the largest
Coronavirus in Congress Won't Stop Barrett Confirmation Hearings, Which Start Today
Plus: $150,000+ in fines in NYC's first weekend of new shutdowns, California ballot-box confusion, and more...
What to Expect From a Joe Biden Supreme Court Pick
What sort of judicial nominee can we expect from the Democratic candidate?
When Joe Biden Tried To Paint Clarence Thomas as a Crazy Libertarian
The episode reflects poorly on Biden.
John Roberts Just Annoyed Everybody. Is He the New Anthony Kennedy?
The chief justice has managed to infuriate every major political faction.
How Gorsuch Took a Page From Scalia in an LGBT Employment Discrimination Case
"Only the written word is the law, and all persons are entitled to its benefit."
Criminal Justice Divides the 'Conservative' Judiciary
Pundits often speak of the judiciary in terms of liberal or conservative judges issuing liberal or conservative opinions. The reality is far more complicated.
These Judges Defend Qualified Immunity as 'a Deferential Rule' That Protects the Police
“Officers don’t have the time to pull out law books and analyze the fine points of judicial precedent.”
This Judge Is Wrong About Economic Liberty and the Constitution
A flawed argument for judicial passivity in cases of government regulation.
Do Tattoo Shops Have a First Amendment Right To Remain Open During a Pandemic?
The idea is not so far-fetched.
Another State Supreme Court Stands Up for Economic Liberty
Following Georgia's ruling in favor of a lactation consultant, Pennsylvania’s high court reviews another “unreasonable” occupational licensing scheme.
