SCOTUSreport

A Mixed Bag: Michigan Federal Judge Grants Injunctive Relief in an HHS Mandate Challenge

William J. Haun — Thu, 01 Nov 2012 20:50:25 +0000

Last evening, Judge Richard Cleland of the U.S. District Court for the Eastern District of Michigan granted an injunction against the HHS contraceptive mandate in Legatus v. Sebelius. The order is here. The case is a challenge to the HHS mandate that employers provide health insurance coverage of contraceptives and abortion-inducing drugs, and is brought [...]

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Don Franzen Interviews Justice Scalia on Reading Law

SCOTUSreport — Wed, 24 Oct 2012 15:17:37 +0000

The Los Angeles Review of Books features Don Franzen’s extensive interview of Justice Scalia on his new book, Reading Law: The Interpretation of Legal Texts. The interview begins: FRANZEN: Your Honor, there are already so many treatises written on interpreting text and canons of interpretation, why did you and your co-writer Professor Garner feel that [...]

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A Response to Dale Carpenter on the Second Circuit and Same-Sex Marriage

Ed Whelan — Tue, 23 Oct 2012 15:40:21 +0000

I disagree with Dale Carpenter’s claim that the First Circuit’s ruling invalidating the Defense of Marriage Act is in any significant way “more limited and incremental” than the Second Circuit’s ruling. I have critiqued both rulings at length on National Review Online’s Bench Memos (First Circuit here and here, Second Circuit here) and will limit [...]

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The Second Circuit and Same-Sex Marriage

Dale Carpenter — Mon, 22 Oct 2012 21:04:43 +0000

In 2007, after 40 years together, New York residents Edith Windsor and Thea Spyer were married in Canada. Two years later, Spyer died, leaving her estate to Windsor. But Windsor was denied the spousal deduction for federal estate taxes because the Defense of Marriage Act prohibits federal recognition of same-sex marriages. On top of her [...]

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West Virginia Congressional Districts and Population Equality

William Baude — Tue, 02 Oct 2012 14:49:16 +0000

Last Tuesday the Supreme Court issued a short, per curiam opinion in Tennant v. Jefferson County, which rejected a challenge to West Virginia’s recently redrawn Congressional districts. The one-person-one-vote doctrine requires that legislative districts be close to the same size (so that each person’s vote is approximately the same share of the total), and there [...]

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FedSoc Teleforum 9/6 on Bickel’s “The Least Dangerous Branch”: Still Relevant 50 Years Later?

SCOTUSreport — Wed, 05 Sep 2012 15:31:38 +0000

In a recent SCOTUSblog symposium marking the 50th anniversary of the publication of Alexander Bickel’s The Least Dangerous Branch, Roger Pilon argued that the twin themes that emerged from that important volume — the “countermajoritarian difficulty” and the “passive virtues” — were especially influential in shaping the constitutional thought of Bickel’s colleague, Robert Bork. Whatever their differences, Bork subsequently [...]

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The Case for “Constitutional Backdrops”

Stephen Sachs — Wed, 29 Aug 2012 20:12:37 +0000

In the last few decades, the Supreme Court has increasingly relied on legal theories–especially originalism–that put heavy emphasis on the Constitution’s text. One common criticism of these theories, though, is that the text leaves too many important questions unanswered. Can the Houses of Congress punish citizens for contempt? Can the President remove executive officers? Can [...]

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Tom Goldstein on the Evolution of SCOTUSblog

SCOTUSreport — Mon, 20 Aug 2012 14:11:44 +0000

GoverningWorks features a fascinating interview of Tom Goldstein, the founder of SCOTUSblog. Here’s an excerpt from the transcript: [W]e can track all of our in-bound readers, unless someone takes the highly unusual step of hiding where they’re coming from. And the Supreme Court doesn’t hide itself. It has the IP [Internet Protocol] address “Supreme Court [...]

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More on EPA’s Coercion of the States

Damien M. Schiff — Wed, 08 Aug 2012 13:13:16 +0000

An astute reader argues, contrary to my earlier position, that coercion of the states is always unconstitutional because it always amounts to an indirect “commandeering” of the state’s legislative or executive arm. With respect to Texas’s lawsuit against EPA challenging the agency’s command that the states incorporate greenhouse gas provisions into their state implementation plans, [...]

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NFIB v. Sebelius, Coercion, and the Unconstitutional Conditions Doctrine

Damien M. Schiff — Mon, 06 Aug 2012 12:38:10 +0000

In NFIB v. Sebelius, the Supreme Court held that the Affordable Care Act would be unconstitutional if interpreted to condition the entirety of a state’s Medicaid funding on its decision whether to accept the Act’s expansion of Medicaid services. The Court, through Chief Justice Roberts, explained that such a condition would impermissibly coerce the states and [...]

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