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.
Supreme Court
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.
Is Censuring a Legislator a First Amendment Violation?
"The First Amendment was never intended to curtail speech and debate within legislative bodies."
Thoughts on Sixth Circuit OSHA Vax-or-Test Mandate Stay Decision and What Comes Next (Updated)
The question of whether to stay the BIden Administration rule requiring large employers to mandate vaccinations or testing is now before the Supreme Court.
Injunction Against Health Care Worker Vaccine Mandates Unlikely to Be Stayed Before 2022
The Supreme Court has asked for responses to the federal government's stay request.
Mail-Order Abortion Pills, Now Officially Authorized by the FDA, Pose an Insoluble Problem for Legislators Who Want To Ban the Procedure
Federal regulators have permanently lifted a requirement that mifepristone be dispensed in person.
Cops Held Two Innocent Boys at Gunpoint, Forced Them to Lie on the Ground, Handcuffed Them, and Searched Them. That's Fine, the 8th Circuit Said.
The Institute for Justice wants the Supreme Court to review the case—and to clarify the proper scope of "investigatory stops."
A Conversation with Jonah Goldberg on Court Reform
I've heard that breaking constitutional norms is a bad thing
Taking a Page From the Texas Abortion Ban, California's Governor Threatens To Attack Gun Rights With Private Lawsuits
Gavin Newsom is exploring legislation to authorize private civil actions against people who sell "assault weapons" or gun kits.
Biden's Supreme Court Commission 'Takes No Position' on Court Packing
“There is profound disagreement over whether Court expansion at this moment in time would be wise.”
Supreme Court Denies Breeze Smoke Stay Application
The justices show little interest in vaping regulation on the shadow docket, but may yet review the FDA's behavior in the regular course.
California Governor Calls for S.B. 8-Style Legislation Targeting Firearms
In response to the Supreme Court's ruling largely precluding pre-enforcement challenge of the Texas abortion law, Governor Newsom calls for similar action on guns.
How Narrow is the Pathway the Supreme Court Left for Suits Challenging SB 8 and Other Similar State Laws?
Things are far from completely clear. But Justice Gorsuch's opinion may give preenforcement challenges to SB 8 and other similar laws a good deal more wiggle room than many think.
SCOTUS Says State Judges and Court Clerks Can't Be Sued To Block Enforcement of the Texas Abortion Ban
The Court allowed claims against health care regulators to proceed, but that will not prevent the private civil actions authorized by the law.
A Murky Decision in the Texas SB 8 Case
The Court rules that the lawsuit against SB 8 can proceed by targeting state licensing officials. But the implications for future cases are far from completely clear.
Breaking: Supreme Court Allows Slim Pathway to Challenge Texas S.B. 8
The private litigation against some defendants may proceed, but the federal lawsuit is gone.
School Choice Returns to the Supreme Court
The justices heard oral arguments this week in Carson v. Makin.
Ohio Prosecuted a Taxidermist for Asking an Inspector to Come Back Later
Regulators insist Fourth Amendment protections don’t apply to administrative searches.
Biden Supreme Court Commission Issues Final Report
The report doesn't endorse court-packing or term limits. But it's generally more favorable to the latter than the former. It also provides valuable overview of a wide range of SCOTUS-related issues.
A New Opportunity for the Government To Screw Up Abortion Law
Plus: A reminder to Bill de Blasio of what "incentive" really means
The Laissez Faire Origins of the Supreme Court's Abortion Precedents
“All of those…just come out of Lochner.”
