July 21, 2022
The Supreme Court’s conservative Justices unapologetically asserted their power this term. Over one week in June, they eliminated the constitutional right to abortion, expanded the right to carry a gun outside the home, and gutted federal authority to combat climate change. Americans reacted with fury and shock. They wondered how the Court’s conservatives could be…
March 13, 2021
Editor’s Note: This piece is the first in our new series covering the Supreme Court’s “shadow docket” — emergency orders and summary decisions outside the Court’s main docket of argued cases and decisions. In November, the Supreme Court ruled in favor of the plaintiff in a qualified immunity case in Taylor v. Riojas. Commentators wondered whether Riojas would…
November 11, 2020
Last Term, sixteen Supreme Court cases cited pieces published in the Harvard Law Review. The works cited were published over the course of the Law Review’s 134-year history, touching on a variety of different topics including statutory interpretation, constitutional law, and tort law. Please see a complete list of the Articles the Court cited below….
March 31, 2020
On March 4, 2020, the Supreme Court heard oral argument in June Medical Services, LLC v. Russo, one of the most contentious cases on its current docket. June Medical is an appeal from a Fifth Circuit decision upholding a Louisiana law requiring physicians who perform abortions to have admitting privileges at nearby hospitals. The Fifth…
February 4, 2020
The Supreme Court has just heard oral argument in Espinoza v. Montana Department of Revenue, a high-profile case involving a Montana private school voucher program that a number of families used to enroll their children in religious schools. The Montana Supreme Court struck down the program, ruling that it violates a Montana constitutional provision that forbids any public funding to be…
December 29, 2019
The Thompson v. Hebdon per curium opinion is the latest example of the Roberts Supreme Court’s hostility to reasonable money in politics reforms like contribution limits, and its insistence on ignoring empirical data about campaign finance. In Thompson v. Hebdon, the Court remanded the case so that the Ninth Circuit could “revisit whether Alaska’s contribution…
October 21, 2019
Lost in the shuffle of a busy October at the Supreme Court—one filled with high profile developments concerning the right to abortion and the treatment of LGBT workers—was a single, ominous sentence buried away on page eleven of the Court’s first orders list of the Term: “The Respondents’ Suggestion of Mootness is denied.” Despite its opacity, this single sentence is…
October 23, 2018
Some dressed as characters from The Handmaid’s Tale, the dystopian novel about a society in which women are valued only if their ovaries are viable. Others chanted “This isn’t over” while holding signs that said “WE DO NOT CONSENT” and “UNFIT TO SERVE.” That was the scene that greeted Justice Brett Kavanaugh when he arrived…
October 22, 2018
These are perilous times even for those who think that federal courts have no business messing with how state legislatures draw lines for legislative and congressional districts and that the issue is best left up to each state’s political system. Now that Justice Anthony Kennedy has left the stage, it is unlikely that the Court…
July 31, 2018
The Roberts Court’s election law jurisprudence is a puzzle to scholars of the Court. The conservative Justices purport to approach their task modestly, invoking analogies to baseball umpires and the duty to call balls and strikes. But their work product is inconsistent with this purported aspiration. The Roberts Court seems to have particular views about…
July 24, 2018
The fate of our democracy may very well hang on the vote of Justice Kennedy’s replacement. If a newly constituted Supreme Court were to overrule (or limit to a vanishing point) Roe v. Wade, it would only matter if state legislatures restricted abortion rights. Undocumented men and women brought to this country as children and…
July 3, 2018
The press and the rest of the commentariat have fallen into the habit of referring to the work of Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch as “conservative.” That is wrong. In several of the most controverted areas that the Court has entered and in which its decisions have had a profound effect…
June 29, 2018
Although it was not exactly a headline-grabbing ruling, the Supreme Court’s decision last Friday in Ortiz v. United States will likely receive a fair amount of academic attention, especially from Federal Courts casebooks, thanks to its long-overdue analysis of the types of disputes (and nature of the tribunals) over which the Court may exercise direct…
June 27, 2018
In the aftermath of the Supreme Court’s decision in Trump v. Hawaii, the travel ban or Muslim ban case, it is unfortunately necessary to engage—or continue to engage—in the process of assigning blame. Starting during the presidential campaign and continuing into his presidency, Donald Trump gave much reason to fear that he had “animus,” to…
April 27, 2018
Coming out of Wednesday’s arguments in Trump v. Hawaii, the dominant view—see, for example, here, here, and here—was that the federal government was likely to prevail and the Proclamation would be upheld. I was less sure; my impression was that if the Court reached the Establishment Clause question—a big if—there was a good chance that…
April 23, 2018
The third version of the Travel Ban (“EO-3”)—also known as the Muslim Ban—added two non-Muslim countries to the list, but that by no means immunized it from legal challenge. The Supreme Court is set to hear oral argument tomorrow in Trump v. Hawaii and will ultimately determine whether the Travel Ban is a lawful exercise…
March 22, 2018
After waiting, and waiting, and waiting, the United States Supreme Court finally answered the question whether it would heed Pennsylvania Republicans’ calls to put on hold the Pennsylvania Supreme Court’s order redrawing the state’s congressional district lines to cure a partisan gerrymander. The answer was no, with no explanation. And in that silence the Court…
February 28, 2018
Yesterday, the Supreme Court heard arguments in the Microsoft Ireland case – the high-profile dispute between Microsoft and the United States regarding the reach of the warrant authority under the Stored Communications Act. The more than 30-some amicus briefs filed in the case highlight the case’s significance. With good reason. The outcome matters to our…
February 13, 2018
This post is the first in a series about the redistricting cases moving through the courts. In the Spring of 2013, two prominent election lawyers, a Republican and a Democrat, visited my Election Law class. I asked them what were the great unsettled questions in the field, especially governing redistricting. They were united in their…
December 1, 2017
Laws banning discrimination on the basis of sexual orientation — like laws banning discrimination on the grounds of race, sex, and other significant statuses — are a moral and social good, properly expressing the intrinsic and radical equality of every human person. Marriage, however, by law and by custom, is not a statement about an…
Next week’s oral argument in Masterpiece Cakeshop involves a familiar story: Three customers walk into a small business that sells specialty foods. The owner is said to be an “artist” for his unique culinary skills and believes his religious convictions imbue his work. The owner turns the customers away entirely or denies them access to…
October 17, 2017
In the high-flying corporate world, employees from time to time suspect that a colleague or boss may be violating federal securities laws. But they may shy away from reporting these violations — from “blowing the whistle” — either to the employer or relevant authorities, because of a risk of retaliation. When Congress passed the Dodd-Frank…
