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.
Supreme Court
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.”
Maybe Cops Should Be 'Pulling Back'
Abolishing qualified immunity is a crucial step in holding police accountable for violating our rights.
The Attorney General's Overblown Fears About Scrapping Qualified Immunity
It's not likely to have the chilling effect he expects. Unfortunately, it might not do as much as criminal justice reformers expect either.
3 Supreme Court Cases to Watch This Month
The justices weigh abortion, school choice, and federal anti-discrimination law.
Participants in Defined-Benefit Retirement Plan Lack Standing to Sue Over Alleged Mismanagement
The Supreme Court shows a willingness to enforce limits on Article III standing.
John Roberts Does Not Think California's Special Restrictions on Religious Services Discriminate Against Churches
As SCOTUS declines to issue an injunction, the chief justice says the state's COVID-19 control measures seem consistent with the First Amendment.
Roberts Accuses Kavanaugh of Judicial Activism in Coronavirus Church Closure Case
"Although California's guidelines place restrictions on places of worship," Roberts wrote, "those restrictions appear consistent with the Free Exercise Clause of the First Amendment."
Should the Supreme Court Reconsider Keller v. State Board of California?
Do mandatory, integrated state bar associations violate the First Amendment? Two justices would like the Court to reconsider this question.
The Supreme Court Has a Chance To End Qualified Immunity and Prevent Cases Like George Floyd's
The Supreme Court could announce as early as Monday that it's revisiting qualified immunity, a doctrine that shields rotten cops from civil rights lawsuits.
Do Pandemic-Inspired Bans on Religious Services Violate the First Amendment? Circuit Courts Are Split.
Supreme Court precedent suggests COVID-19 restrictions that discriminate against churches are presumptively unconstitutional.
This Judge Is Wrong About Economic Liberty and the Constitution
A flawed argument for judicial passivity in cases of government regulation.
Justice Department Asks Supreme Court To Block Judge's Order To Release Inmates at Ohio Federal Prison
A federal judge ordered officials at Elkton to stop "thumbing their nose" at their own authority to release inmates at risk of coronavirus.
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.
Two Cops Were Given Qualified Immunity After Allegedly Stealing $225,000. SCOTUS Won't Hear the Case.
But the high court may consider other cases that could overturn the outrageous legal doctrine.
Supreme Court Won't Hear Suit Saying Facebook Helped With Hamas Attack
Hamas "used and relied on" Facebook "as among its most important tools to facilitate and carry out its terrorist activity," the plaintiffs claimed.
Textualism, Title VII, and "Discrimination . . . Because of Such Individual's Sex"
Does the text of Title VII prohibit discrimination on the basis of sexual orientation or transgender status?
State Supreme Courts Stand Up for Economic Liberty While SCOTUS Falls Down on the Job
"We have long interpreted the Georgia Constitution as protecting a right to work in one's chosen profession free from unreasonable government interference."
A Nondelegation Challenge to Trump's Border Wall
An under-the-radar environmental lawsuit could provide the Supreme Court another opportunity to revive the nondelegation doctrine.
10 Ways a Roadside Police Stop Can Go Wrong
What could happen—and what to do about it—if you get pulled over by the cops
Justice Thomas Takes Aim at State Standing
In a brief exchange during a recent oral argument, the Justice suggested the Court should reconsider giving states "special solicitude" under Massachusetts v. EPA
The Penalty-less Individual Mandate Is Severable from the Rest of the ACA No Matter How You Look at It.
We submitted another strange bedfellows amicus brief on severability in the Texas ACA case.
Will Breyer Side With Trump in Congressional Subpoena Fight?
The Supreme Court weighs the congressional subpoena power in Trump v. Mazars.
Will SCOTUS Revoke Its License for Police Abuse?
This week the justices are considering 13 petitions involving the pernicious doctrine of qualified immunity.
"Valid Legislative Purpose"
Do legislative subpoenas really need a limiting principle?
Is There Any Limit on the Congressional Subpoena Power?
There was a potentially pivotal exchange in today's Supreme Court oral argument over the House subpoenas seeking the President's financial records.
How Supreme Court Doctrine Protects Cops Who Kill (or Otherwise Use Excessive Force)
A Reuters report suggests changes in qualified immunity doctrine have immunized police officers sued for misconduct.
Did Louisiana Enact a Bogus Health Law as a Pretext for Banning Abortion?
The Supreme Court will consider the constitutionality of a Louisiana law that requires physicians who perform abortions to have admitting privileges at local hospitals.
Courts Grant Qualified Immunity to Cops in More Than Half of Cases When Invoked
A Reuters investigation reveals courts "growing tendency" to grant cops immunity from civil rights lawsuits.
Supreme Court Can Put a Stop to Rule Compelling Anti-Prostitution Speech From Anti-HIV/AIDS Groups
The anti-prostitution pledge is unconstitutional when applied to U.S. nonprofits. But the feds say it's still OK to compel speech from these groups' foreign affiliates.
Supreme Court Justices in Texas and Pennsylvania Emphasize That COVID-19 Lockdowns Require Judicial Scrutiny
Not everything that states do in the name of protecting public health is consistent with the Constitution.
When Are COVID-19 Control Measures 'Arbitrary' and 'Unreasonable'?
Courts so far have not been inclined to ask that question.
Will the Trump Administration Finally Abandon Its Bizarre Position in the Texas ACA Case? (Update: No)
CNN reports that Attorney General Barr is (again) voicing opposition to DOJ's argument that zeroing out the mandate penalty should upend the entire law.
It's 'Access' to Birth Control Versus Employer Beliefs Again at the Supreme Court
The Obamacare contraception mandate continues to cause legal trouble.
When the Supreme Court Upheld a Compulsory Vaccination Law
Infectious disease, public health, and the Constitution
A Virus Makes the Supreme Court More Transparent
Unprecedented live audio streaming of oral arguments could signal more openness.
Deeming a Lawsuit Moot, SCOTUS Passes Up a Chance to Correct Judicial Disrespect for the Second Amendment
The Court decided that New York City's revision of its restrictions on transporting guns gave the plaintiffs what they sought.
Supreme Court Rules That Georgia Can't Copyright Its Annotated Code
A long-running legal battle ends with a victory for open government.
Supreme Court Orders Government To Fund $12 Billion Obamacare Bailout
The ruling says health insurers are owed money that Congress never appropriated.
A Quite Unusual 5-4 Split on the Supreme Court
Three opinions, no blockbusters, but an odd (and unprecedented?) 5-4 split - and interesting order on Congressional subpoenas.
Why Was the Wisconsin Primary Election a Federal Case in the First Place
Most of the commentary on the Supreme Court's rejection of last minute judicial intervention glossed over the underlying constitutional question.
Do We Really Need the Supreme Court to Decide the "Faithless Elector" Cases Now?
The Court could have, and probably should have, pushed these cases over to the 2020-21 Term
Supreme Court Upholds Broad Reading of Clean Water Act
Environmental groups were worried the Court would curtail CWA jurisdiction in Maui v. Hawaii Wildlife Fund. It didn't.
Fordham Urban Law Journal Symposium on Knick v. Township of Scott
I have a contribution (coauthored with Shelley Ross Saxer) in this symposium on last year's important Supreme Court takings decision.
Supreme Court Rules Non-Unanimous Jury Verdicts in Criminal Cases Unconstitutional
A 50-year-old precedent was tossed, which caused three justices to dissent.
Unusual Supreme Court Lineup Holds that Jury Verdicts in (Most) Criminal Cases Must Be Unanimous
All three of today's Supreme Court decisions featured unusual alignments among the justices.
Can Trump Order Congress Home and Unilaterally Fill Vacancies Via the Recess Appointment Power?
The president contemplates a sweeping exercise of executive authority.
