The U.S. Railroad Retirement Board said, “we refuse to reconsider our decision to deny a railroad worker disability benefits.” The Supreme Court replied, “Fine. Federal courts can review your refusal.” The vote was 5:4. The majority’s decision is another win for those—like me—who generally favor judicial review of administrative action. But the win is a shaky one; the Justices disagreed about how to interpret a single clause in an Act of Congress, and both interpretations are intrinsically valid.Read More »
Yesterday morning, a three-judge panel of the Third Circuit Court of Appeals in Philadelphia dismissed Donald Trump’s lawsuit challenging the state’s ballot-counting and -certification process. Trump’s next move would be to head to the Supreme Court, just as his legal team has proclaimed all along. But don’t be fooled; Trump’s chances of getting any Justice to take his case seriously are as bad as Rudy Giuliani’s oral argument performance (calamitous by “any standard of review!”). The case is dead on arrival.Read More »
The Supreme Court has a new mixed drink: it’s five parts formalism to four parts functionalism, with a dash of Humphrey’s Executor. This new drink was on full display in Seila Law LLC v. CFPB, in which five Justices concluded that Congress violated the separation of powers when it placed limits on the president’s power to fire the CFPB’s director. Those five Justices used what’s called the “formalist” approach, prevailing over the competing “functionalist” approach adopted by the four dissenting Justices. Throughout history, the Court has oscillated between formalism and functionalism, especially in cases involving the president’s power to remove public officials. For the latter half of the 20th century, functionalism appeared to be the dominant approach to removal-power cases—until two recent decisions from the Roberts court. Might formalism now be seeing a resurgence?
In an historic decision yesterday, Chief Justice Roberts held for a 7:2 majority that a sitting president isn’t absolutely immune from a state grand jury subpoena seeking the president’s private documents, and that a state prosecutor need not show a “heightened need” for such documents. It is a resounding legal defeat for President Trump, who had challenged the authority of a state district attorney to subpoena Trump’s personal and corporate financial records. But the decision may be a political win; more likely than not, Trump will be able to stave off the release of his tax records until after the November election. Here is a recap of the Court’s decision in Trump v. Vance.
Fides et ratio, or “faith and reason,” was the penultimate encyclical of Pope John Paul II. He argued that faith and reason do—and must—go hand in hand. Doubtless, among those who would agree with this principle are the Montana parents who sued in Espinoza v. Montana Dept. of Revenue to send their children to parochial schools after winning tax-credit-funded scholarships. At first, the parents lost; the Montana Supreme Court invalidated the entire scholarship program. Last week, however, the U.S. Supreme Court reversed that decision by a 5:4 vote, concluding that it violates the Free Exercise Clause of the First Amendment to strike down the program under a version of the Blaine Amendment in the Montana state constitution. Here’s my analysis.
Last Monday, the Supreme Court in June Medical Services, L.L.C. v. Russo struck down a Louisiana abortion law as unconstitutional. Abortion always makes for a blockbuster topic at the high court, but this decision was about as narrow as it could have been. The case hinged entirely on the vote of Chief Justice Roberts, whose opinion rested on an extraordinary application of stare decisis. What does this mean for Louisiana and, more importantly, future abortion cases at the Court? Read more to find out:
Last week, Justice Gorsuch held that Title VII of the 1964 Civil Rights Act outlaws workplace discrimination on the basis of sexual orientation or gender identity. To some it was gold leaf, a vindication of the decades-long fight for gay and transgender rights. To others it was blasphemy, an abdication of the constitutional duty of a judge. But leaving politics aside, it highlights a debate over one of the central theories of statutory interpretation: textualism. Both Gorsuch in the majority and Alito in dissent claim textualism is on their side. The fact that they come to dueling interpretations of a one-sentence statute suggests that textualism will yield unpredictable outcomes in statutory interpretation cases for years to come, irrespective of the typical “conservative” and “liberal” labels given to each of the Justices. Here is my analysis of Bostock v. Clayton County.
Yesterday, Chief Justice Roberts concluded that the Trump administration violated the Administrative Procedure Act when it attempted to rescind Deferred Action for Childhood Arrivals, or DACA. Roberts’ opinion is momentous—both in what it says and in what it does not say. For example, Roberts is coy on whether DACA itself is legal. He concludes only that the manner in which the Trump administration sought to cancel it did not follow the proper administrative procedure. On the other hand, three Justices—Clarence Thomas, Samuel Alito, and Neil Gorsuch—were not shy in saying the opposite, bluntly declaring that DACA is illegal and that there’s no other justification required to terminate it. For now, Roberts’ opinion keeps DACA on the books and its recipients in the country. Their dream remains alive, albeit temporarily. Read more for an in-depth analysis of the Court’s decision in Department of Homeland Security v. Regents of the University of California.
On April 27, the Supreme Court issued its long-awaited decision in its only Second Amendment case of the term. But what some thought would be a blockbuster decision instead landed with a dull thud; six Justices voted to dismiss the case as “moot” (i.e., no longer presenting a live controversy). Why? Well, after the Court agreed to decide the case, the gun law at issue was repealed. Since the Court cannot adjudge the constitutionality of a law that is no longer on the books, the case was dead. Justice Kavanaugh penned a short concurrence, and Justice Alito authored a long, curious, and (at times) odd dissent. Here’s an in-depth analysis of the Court’s decision and the doctrine of “mootness.”