Standing in West Virginia v. EPA Revisited
Why the arguments the Supreme Court lacks jurisdiction to hear the latest climate change case likely lack merit.
Supreme Court
Rights and Wrongs of Replacing Traditional Affirmative Action with Preferences for Descendants of Slaves
This approach would avoid many of the flaws of traditional racial preferences. But it has some downsides of its own.
Assessing the State of the Struggle to Reform Qualified Immunity
The Institute for Justice offers a generally pessimistic appraisal of the situation under state law, but some optimism about prospects in the Supreme Court.
The Potential Biden SCOTUS Pick Who Is No Friend to Criminal Justice Reform
Civil libertarians have reason to be wary of Judge J. Michelle Childs.
The Supreme Court's Alabama Redistricting Ruling Looks Like a Holding Pattern, Not a Power Grab
Contrary to some of the more breathless reactions, it doesn't suggest a conspiracy to help Republicans win elections by disenfranchising black voters.
Neil Siegel on "The Trouble With Court-Packing"
The Duke law professor posts an important and insightful article on this subject.
Will Biden's Supreme Court Nominee Need Republican Votes to Get Confirmed?
Supreme Court confirmation votes have become increasingly partisan. Will this create a problem in a 50-50 Senate?
Member of #TeamJackson Allegedly Edited Wikipedia Bios of Potential Supreme Court Nominees
A former clerk to Judge Ketanji Brown Jackson is accused of burnishing her Wiki bio, while sabotaging those of other contenders to replace Justice Breyer.
Should a Christian Group Be Allowed To Fly a Flag Outside Boston City Hall?
The Supreme Court will soon decide a case that tests the limits of expression on government property and religious toleration.
Judge Ketanji Brown Jackson's First Circuit Court Opinion
A unanimous panel rejects a Trump Administration change to rules on collective bargaining for government workers.
The Supreme Court Fight We Should Be Having
There are more productive things to argue about than identify politics.
Does the Supreme Court Have Jurisdiction to Hear West Virginia v. EPA?
The Solicitor General and NGO respondents argue that the petitioners lack appellate standing to challenge the D.C. Circuit's interpretation of the Section 111 of the Clean Air Act.
The EPA Has Spent 15 Years Blocking This Couple From Building a Home. Will the Supreme Court Come to the Rescue?
Michael and Chantell Sackett say they shouldn't have to spend years—and hundreds of thousands of dollars—just getting permission to build on their suburban lot.
Georgetown Suspends Ilya Shapiro, Student Protesters Demand Place to Cry
More than 100 law professors agree that "academic freedom protects Shapiro's views."
The Media's Censorial Freakout Over Joe Rogan
Plus, Supreme Court nominations and affirmative action in schools
A Border Patrol Agent Assaulted Him and Violated His First Amendment Rights. He May Never Get To Sue.
It is almost impossible to hold a rogue federal officer accountable. The Supreme Court may make it even harder.
Georgetown Should Not Fire Ilya Shapiro for a Bad Tweet
“I regret my poor choice of words, which undermine my message that no one should be discriminated against for his or her gender or skin color,” Shapiro tells Reason.
My New Article on "Rethinking the Supreme Court's Impact on Federalism and Centralization"
The article challenges longstanding conventional wisdom. It is coauthored with political scientist Michael Dichio (University of Utah).
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.
An Opportunity to Diversify the Supreme Court in More Ways than One (Updated)
President Biden has promised to nominate the first Black woman to the Supreme Court. He should also consider a nominee with legal experience current justices lack.
Don't Believe OSHA When It Threatens To Turn Its Rescinded Vaccine Mandate Into a Permanent Rule
That process takes a long time, and the result would face the same legal objection cited by the Supreme Court.
Justice Breyer, Democracy, and Expertise
His judicial philosophy emphasized promotion of democracy, a theme in tension with his emphasis on the need for deference to expertise.
Biden Administration Withdraws Business Vaccine Mandate After Losing Supreme Court Case
SCOTUS rejected attempt to bypass Congress with an emergency regulation.
Stephen Breyer Is Retiring from the Supreme Court, Reports Say
Assuming Biden can replace him, the Court's ideological composition probably won't change much.
A Federal Judge's Satirical Opinion Highlights Disrespect for the Second Amendment
After more than a decade of subversion, the Supreme Court has a chance to rectify this situation.
Why the Supreme Court's Decision in NFIB v. OSHA May Be Even Worse News for Climate Regulation than You Thought
Insofar as the Court was concerned about pretext, it may be more difficult for the EPA to reduce greenhouse gases using regulatory authority to control emissions.
Supreme Court To Hear 2 Cases Challenging Race-Based College Admissions
The Supreme Court could decide the fate of affirmative action at public and private universities.
There Is Nothing 'Conservative' About Letting Police Violate Our Rights
Virginia Gov. Glenn Youngkin's support for qualified immunity is in opposition to the principles he says he stands for.
Bad Politicians Think Elections Are Illegitimate if They Don't Like the Winner
Democracy means accepting results you're not happy about.
Starbucks Rescinds Employee COVID-19 Vaccine Mandate
Starbucks has decided the vaccine mandate isn't good for their business
How Many Supreme Court Justices Must Deny NPR's Reporting Before Media Outlets Believe Them?
John Roberts, Neil Gorsuch, and Sonia Sotomayor have all denied Nina Totenberg's story about a SCOTUS dispute over masking.
License Plates, Flagpoles, and Editorial Discretion
On government curation and government speech.
OSHA's Vaccine Mandate Illustrates the Perils of Reflexively Deferring to Government Experts
The question for the Supreme Court was not whether the policy was wise but whether it was legal.
Are the Supreme Court Justices "Happy Campers"?
Nina Totenberg reports on potential strains among the justices and Justice Gorsuch's decision not to wear a mask at argument.
The Important Choice of Law Questions Lurking in Tomorrow's Stolen-Pissarro Argument
The applicability of Klaxon v. Stentor Electric Manufacturing -- no, wait! I promise it's important . . . .
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.
In the Case That Blocked OSHA's Vaccine Mandate, the Justices Disagreed About When COVID-19 Counts As a Workplace Hazard
The crux of the argument is the distinction "between occupational risk and risk more generally."
Additional Thoughts on the Supreme Court's Covid-19 Mandate Decisions
Assorted observations on yesterday's opinions, what they mean, and what comes next.
Supreme Court Blocks Biden Vaccine Mandate: 'This Is No "Everyday Exercise of Federal Power"'
Separately, the court upheld Biden's mandate that health care workers must be vaccinated to work at medical facilities receiving Medicare and Medicaid funding.
BREAKING: SCOTUS Stays OSHA Vax-or-Test Rule, Allows CMS Vaccine Mandate for Health Care Workers to Take Effect
By divided votes, the justices entered stayed t the OSHA Emergency Temporary Standard and stayed the lower court injunctions against the mandate that Medicare and Medicaid service providers require their employees to get vaccinated.
The Eviction "Tsunami" that Wasn't
Defenders of the CDC eviction moratorium predicted a "tsunami" of evictions would happen if the policy were rescinded. That hasn't happened.
COVID-19, Major Questions, and Pouring New Wine from Old Bottles
Does it matter that the year Congress enacted the Occupational Safety and Health Act was as proximate to the Spanish Flu as to today?
Defending OSHA's Vaccine Mandate, Sonia Sotomayor Says 'I'm Not Sure I Understand the Distinction' Between State and Federal Powers
The justice's reference to a national "police power" raised some eyebrows.
Sloppy Arguments Over COVID Mandates at SCOTUS (UPDATED)
The caliber of questioning by the justices was not up to the usual standards, but the justices seemed to understand the two rules at issue present different questions.
My Law 360 Article on the Texas SB 8 Case and Prospects for the Future
The article explains why SB 8 potentially poses a threat to constitutional rights far beyond the abortion context, and how future court decisions could potentially mitigate it.
My NBC Column on the Vaccine Mandate Cases Argued before the Supreme Court Today
In my view, the Court should uphold the CMS health care worker vaccination requirement, but rule against the overreaching OSHA rule imposed on employers with 100 or more workers.
The Supreme Court Seems Inclined To Block OSHA's Vaccine Mandate
Most of the justices appear to be skeptical of the argument that the agency has the power it is asserting.
Justice Sotomayor Exaggerated the Number of Severe COVID-19 Cases Among Children
"We have over 100,000 children, which we've never had before, in serious condition and many on ventilators," said the justice, wrongly.
