The Harvest Rock Petitioners should file a motion for reconsideration, and seek an injunction pending appeal.
Given the likely trajectory of COVID-19, the Court may never have to decide a pandemic case on the merits.
Barr's appointment of Durham mostly tracks Rosenstein's appointment of Muller
But 28 C.F.R. § 600.3 requires special counsels to be "selected from outside the United States Government." (Barr did not rely on 600.3)
Update your predictions for the tumultuous OT 2020 Case
James Phillips and I are working on an article about circuit judges who strategically time their taking of senior status.
"In determining that plaintiffs are unlikely to succeed on the merits of their Free Exercise claim, we also have no need to rely upon either" South Bay or Jacobson
The Journal of the Supreme Court includes the name of every member admitted, as well as the name of every member who is subject to discipline.
There is a nice discussion of his appointment of Justice Sotomayor, once sentence about his appointment of Justice Kagan, and a rebuke of Justice Alito's Ledbetter Decision
Hybrid learning went much better than I anticipated, and online classes became surprisingly normal.
The Court halted the 10- and 25-person limits, but left in place the 25% and 33% occupancy limits.
The Court's analysis was really, really thin. I think this question will be answered in Fulton.
For the 2021 Barnett/Blackman Supplement
The Chief Justice could step down, and let President Biden replace him with a sharply divided Senate.
What happens now?
The Court doesn't crack down on the arbitrary distinction between "essential" and "non-essential" businesses--yet.
From South Bay to Diocese.
The majority held that New York could reimpose the restrictions at any point. There was no need to wait.
But the per curiam opinion stops short of adopting Justice Kavanaugh's "most favored right" framework.
Justice Gorsuch's reading of Jacobson tracks my own, almost to a tee. And Chief Justice Roberts acknowledges that he did not adopt Justice Harlan's constitutional framework.
In six months, Chief Justice Roberts's South Bay concurrence was cited 114 times. The 115th citation sank it.
Chief Justice Roberts dissented from Roman Catholic Diocese of Brooklyn v. Cuomo.
Jacobson v. Massachusetts, Buck v. Bell, and NFIB v. Sebelius
Now, Circuit Justice Alito can deny the pending application from Pennsylvania without referring the case to the full Court
Lawrence, Windsor, Obergefell
Massachusetts fined people who refused to get vaccinated. But the Supreme Judicial Court recognized it was "not in [the state's] power to vaccinate [Jacobson] by force."
Casey, Whole Woman's Health, and June Medical
The ad hoc creation of red and orange zones are capable of repetition, but will evade review.
And would judges have to notify the parties about this coordination?
The Leading Case Note, and three other publications in the Supreme Court issue, cited my work.
Griswold and Casey
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