Supreme Court

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• SOURCE: Washington Post
  6/1/2023
  

  Kagan, Sotomayor Join SCOTUS Cons in Sticking it to Unions

  By an 8-1 vote, with only Ketanji Brown Jackson in dissent, the Court allowed employers to bypass the National Labor Relations Board to seek potentially crippling tort judgments against unions for business losses related to strikes, removing a major incentive for good-faith negotiation by employers. 

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• SOURCE: Slate
  6/1/2023
  

  New Evidence: Rehnquist Pretty Much OK with Plessy v. Ferguson

  by Richard Hasen and Dahlia Lithwick

  A 1952 memo that Rehnquist wrote defending "separate but equal" was raised during his Supreme Court confirmation hearings and dismissed as work-for-hire. It is now clear that he supported the narrow interpretation of the 14th Amendment that the current court majority hopes to use to undermine civil rights. 

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• 5/28/2023
  

  The Modern Relics in Crow's Cabinet of Curiosities

  by Matthew Dennis

  Understanding Harlan Crow's collection, including Nazi memorabilia, as a set of relics (and not trophies or investments) helps to clarify the unease Americans feel about his understanding of power and cultivation of relationships with people of influence over the federal judiciary.

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• SOURCE: NPR
  5/22/2023
  

  The Rise of the SCOTUS "Shadow Docket"

  An increasing amount of the court's consequential business is being conducted through emergency orders in response to lower court rulings, without public argument or signed opinions, argues legal scholar Steve Vladek. Although there are reasons for fast action in some cases, the court's public legitimacy is undermined.

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• SOURCE: Made By History at the Washington Post
  5/19/2023
  

  After Dobbs, Abortion Politics are Straining the Republican Coalition

  by Daniel K. Williams

  When the party could focus on appointing anti-Roe judges, the Republicans could make abortion a political issue without having to decide matters of policy that inevitably leave parts of their coalition angry and disappointed. Have they lost by winning? 

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• SOURCE: Associated Press
  5/2/2023
  

  LOC Opens Personal Papers of Justice John Paul Stevens to Public

  The justice's personal papers show, among other things, that Antonin Scalia and Anthony Kennedy were upset that the harshness of dissenting opinion in Bush v. Gore would lead to public criticism of the conservative justices who helped George W. Bush to the White House. 

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• SOURCE: Bloomberg
  4/1/2023
  

  On the History, Alito's Wrong: Attacks on Justices Nothing New

  by Kevin M. Kruse

  Even if Samuel Alito or Clarence Thomas were burned in effigy or impeached, those challenges to their judicial integrity would be very much precedented. 

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• SOURCE: Roosevelt Institute
  5/2/2023
  

  Missouri Group's Claim to Standing in SCOTUS Debt Relief Case Based on False Claim of Harm

  In Biden v. Nebraska, the court used the "shadow docket" to accept a case for review without verifying the facts presented in the complaint. As it turns out, the claim by a Missouri-based student loan servicing agency that it would be harmed by debt relief appears to be flatly untrue. 

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• SCOTUS's Stay of Mifepristone Ruling a Win for Abortion Rights, but Shows Dangerous Power of "Shadow Docket"

  Important judicial decisions are increasingly made through the procedural rulings the Court makes on lower-court decisions, without extensive briefings, arguments, or publicity. Law professor Steve Vladek explains why this matters, and why Samuel Alito is mad at him.

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• SOURCE: The New Republic
  4/21/2023
  

  Liberal SCOTUS Judges are Calling Out the Court's Crisis of Legitimacy. Why Aren't Dem Politicians?

  by Simon Lazarus

  A Washington legal veteran argues that the judicial branch has always been political. The liberal ideal of a branch separate from partisan concerns is a historical oddity that the conservative legal movement has rejected in substance; legal liberals must do the same. 

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• SOURCE: The Atlantic
  4/13/2023
  

  SCOTUS Seems Ready to Reject Independent State Legislature Idea in a Win for Democracy

  by J. Michael Luttig

  The retired federal jurist observed oral arguments in a case that would allow state legislatures to reject judicial review in setting the rules of elections, potentially leading to politically-motivated mayhem in federal elections. He thinks that the Court will reject the theory. 

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• SOURCE: Politico
  4/18/2023
  

  The Scandal isn't in Clarence Thomas's Corruption, but His Jurisprudence

  by Corey Robin

  It's a mistake to ask if receiving gifts from a wealthy benefactor has shaped the Justice's rulings. His rulings have paved the way for the power of money in America. 

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• 4/9/2023
  

  SCOTUS Arguments in Debt Relief Cases Show the Fracturing of the Bipartisan "Education Myth"

  by Jon Shelton

  Two Justice's preoccupation with the fairness of relieving student debt proclaimed a concern that the government not pick economic winners and losers. But the student debt crisis reflects a decades-long bipartisan sales pitch, backed by policy, that college is the individual's path to prosperity. That pitch is now wearing thin. 

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• 3/26/2023
  

  The History of State Interposition Shows Federalism is a Deliberative Process, not a Set of Rules

  by Christian G. Fritz

  The efforts of state legislatures to oppose federal law have been varied. In sum, they show that the Supreme Court cannot dictate the distribution of power under federalism; Americans will have to keep figuring it out as we go, through political deliberation.

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• SOURCE: The Atlantic
  3/6/2023
  

  SCOTUS Leak "Investigation" Shows Longstanding Need for Real Oversight

  by Glenn Fine

  A veteran executive branch watchdog says the effort to find who leaked the Court's Dobbs decision draft was doomed to fail from the start and reflects the impunity that the Justices enjoy. 

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• SOURCE: New York Times
  2/15/2023
  

  Did Lewis Powell Sign a Slow Death Warrant for Affirmative Action?

  The Times court reporter Emily Bazelon dives into the decision by Justice Powell to decide the 1978 Bakke case through reference to "diversity" instead of racial justice, a rationale that stripped away much of the unjust history of higher education. 

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• SOURCE: Slate
  2/15/2023
  

  We Don't Need to Pretend Clarence Thomas Can Read the Founders' Minds

  by Heidi Li Feldman and Dahlia Lithwick

  The approach to "original intent" laid out in recent gun control rulings imagines the founders as capable only of the most cramped and limited understanding of the function of law in a society, argue a legal scholar and veteran court reporter. 

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• SOURCE: The Atlantic
  2/9/2023
  

  Originalism Will Kill Women

  by Madiba K. Dennie

  "Originalist ideology glorifies an era of blatant oppression along racial, gender, and class lines, transforming that era’s lowest shortcomings into our highest standards."

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• SOURCE: Harvard Gazette
  1/31/2023
  

  Harvard Law Symposium on Roe 50 Years Later

  A conference hosted by the Radcliffe Institute convened legal and historical scholars to discuss the future of reproductive rights. 

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• SOURCE: New York Times
  1/30/2023
  

  The Latest SCOTUS Case to Privilege Religion Over Civil Society

  by Linda Greenhouse

  Historically, the Supreme Court has viewed workplace accommodations for religious workers in terms of protecting minority faiths and relieving undue burdens on employers and coworkers. A pending case brought by a Christian postal worker promises to upend that balance.