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The Courts and the Rule of Law
75 posts, newest first (page 3 of 4).
303 Creative Was About Compelled Speech, Not a License to Refuse Customers303 Creative v. Elenis held that Colorado cannot force a designer to write messages she rejects, a rule that protects speakers of every view. Coach Kennedy's Prayer at Midfield and the End of the Lemon TestKennedy v. Bremerton protected a coach's brief private prayer and retired the Lemon test. Here is the history, the holding, and the dissent's best argument. Chevron Began as a Win for Reagan's EPA, Which Makes Its Fall So IronicChevron deference was born in a case the Reagan administration won, and conservatives defended it for years. Here is how the right changed its mind. The Sick Chicken Case of 1935 and the Doctrine That Could Rein In AgenciesSchechter Poultry struck down part of the NIRA because Congress gave away its lawmaking power. The Court has not used that rule since, but the fight goes on. The Major Questions Doctrine Explained, From Tobacco to the Power PlantsCongress must speak clearly before an agency claims power over a vast part of the economy. Here is where the rule came from and where Gorsuch and Barrett part. Bostock Was Written as Textualism, and Textualists Split Over ItGorsuch and Alito both claimed the text of Title VII in Bostock and reached opposite results. Here is why, and which reading of textualism is sounder. Shelby County v. Holder Asked Whether Old Data Could Still Govern the StatesShelby County did not repeal the Voting Rights Act. It held that a formula built on 1960s turnout data could not keep singling out states. Section 2 stands. John Roberts Called the Mandate a Tax, and Conservatives Still Argue About WhyRoberts's 2012 vote in NFIB v. Sebelius rested on the saving construction, and conservatives split over whether that was restraint or rewriting. Five Myths About Citizens United That Still Show Up in Stump SpeechesCorporate personhood, foreign money, unlimited gifts and the end of disclosure: five common claims about Citizens United tested against the opinion. The Takings Clause Explained, From Public Use to Just CompensationThe Fifth Amendment protects property in two phrases, public use and just compensation, and courts have stretched the first while shrinking the second. From Plessy to Chevron, a Timeline of Precedents the Court Was Right to OverruleA dated timeline of eight reversals, from Gobitis to Loper Bright, answering the claim that overruling precedent is radical. Stare Decisis Explained, and the Factors Justices Weigh Before OverrulingPrecedent deserves respect, not worship, and the Court keeps a working list of factors for deciding when a past mistake must be corrected. Dobbs v. Jackson Read Closely, From Alito's History to the Joint DissentA close reading of Dobbs, the Mississippi law behind it, the history test it used, its five-factor case for overruling Roe, and the best of the dissent. Roe v. Wade Was Weak Law Even to Scholars Who Liked the ResultThe first serious legal critics of Roe supported legal abortion, which shows that the objection was about constitutional method, not politics. Griswold v. Connecticut and the Right to Privacy Built From PenumbrasGriswold struck down a law almost no one defended, but the method it used, rights found in penumbras, became the template for Roe, and that is the problem. United States v. Lopez Was the First Commerce Clause Limit Since the New DealIn 1995 the Court held that a federal gun-free school zone law exceeded the commerce power, and the case still draws the line between Congress and the States. Lochner v. New York Divides Conservatives More Than Progressives AdmitLochner struck down a bakers' hours law, and conservatives still split over whether it was activism or a defence of the right to earn a living. Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right?Hamilton's essay is the charter for judicial review and the measure for judging judges, so read it passage by passage and test it against two centuries. Marshall Gave Up William Marbury's Commission to Win the Bigger ArgumentIn Marbury v. Madison the Chief Justice refused an order he had no power to give, and that restraint is what made judicial review last. McCulloch v. Maryland Opened a Door, and Marshall Swore It Had WallsMarshall read Necessary and Proper broadly in 1819 but insisted on limits, and later courts kept the breadth and dropped the walls. Dred Scott Is the Warning Every Fan of Judicial Supremacy Should ReadThe Court that tried to settle slavery by decree in 1857 was catastrophically wrong, which is why no court should be the final word on the Constitution. Justice Harlan's Lone Dissent in Plessy and the Colorblind ConstitutionOne Justice stood alone against Plessy in 1896, and his reasoning became the ancestor of the colorblind-Constitution argument. Can an Originalist Defend Brown v. Board? Yes, and Here Is the CaseThe Fourteenth Amendment's text and the Reconstruction record support Brown v. Board, even though the Court's own opinion left that argument aside. Five Serious Objections to Originalism and the Answers That Hold UpThe best critiques of originalism deserve a fair hearing, and each one has an answer in the text, the cases and the record.
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