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The Supreme Court blog
When the Senate and the President Disagree on Judges, History Shows What Follows With Democrats set to take the Senate on January 3, 2027, history shows how divided government shapes judicial nominations and what a President can still do. Roberts Said Judges Call Balls and Strikes. Conservatives Still Argue Over It Roberts's umpire metaphor captures judicial modesty, but conservatives split over whether modesty means deferring to laws that violate the Constitution. Standing Explained, the Doorway Rule That Keeps Courts Out of Politics A federal court can decide a dispute only if the plaintiff shows a real injury the court can fix, and that doorway rule is why judges are not legislators. Robert Jackson Left the Supreme Court to Prosecute the Nazis at Nuremberg A justice with one year of law school became the chief American prosecutor at Nuremberg, and his career shows what law is for, which is restraining power. Everson v. Board of Education, the school bus case that changed church and state A 1947 ruling on bus fares applied the Establishment Clause to the states for the first time, and conservatives still argue about what it did. Twelve Strangers, How Trial by Jury Crossed the Atlantic to America Colonists named trial by jury again and again as a right. Its path from Magna Carta to Duncan v. Louisiana shows why the Constitution protects it three times. Ten Words the Press Uses About the Supreme Court, Translated for Normal People Activist, extreme, supermajority, rogue and six more words carry arguments inside them. Each is defined, tested against named cases and given a verdict. How the Press Covers Supreme Court Decisions, and What the Stories Leave Out Court coverage tells you who won, not what the opinion held. Test three famous frames against the actual rulings, then learn to read a syllabus in ten minutes. Brandenburg v. Ohio Protected a Klansman's Speech, and It Protects Yours Too The 1969 ruling that a Klan leader's speech could not be punished set the modern incitement test, and it shields every unpopular speaker, conservatives too. A Supreme Court of 435 Justices, Where Court-Packing Logic Leads A labelled thought experiment follows tit-for-tat Court expansion to 435 seats, then checks it against the 1937 Senate report, the 1869 Act and Article III. Bond v. United States, a Jilted Wife and a Chemical Weapons Treaty Prosecutors used a chemical weapons treaty law on a woman who put irritants on a rival's doorknob. The Court said no, and it speaks to overcriminalization. If Your Lease Were Read Like a Living Constitution, a Satire in Five Clauses A labelled thought experiment about a landlord who treats a lease as an evolving document, and what it shows about fixed meaning, Marbury and Article V. Hard Questions for Originalists, Answered From the Text and the Record Twelve fair objections to originalism, from whose meaning counts to the Ninth Amendment and Article V, answered from the text and the historical record. INS v. Chadha Killed the Legislative Veto and Left Congress Fewer Tools A student's deportation case ended the one-house veto in 1983 and showed why lawmaking must pass both chambers and reach the President's desk. How to Follow a Supreme Court Oral Argument, From the Line to the Transcript Seven plain steps that take you from the argument calendar to the final opinion, so you can judge a Supreme Court case yourself instead of trusting a headline. A Snapchat Post, a Cheer Squad and the Limits of School Power Mahanoy v. B.L. (2021) held 8 to 1 that a school could not punish a teen's profane weekend post. Why that limit protects every family, conservatives included. James Wilson Lectured on Natural Law While Washington Was President A signer of both founding documents and an original justice told America where law comes from, with the President reportedly in the room. He was right. Ramos v. Louisiana and the Jim Crow Roots of Split-Jury Convictions In 2020 the Court held that state criminal juries must be unanimous, ending a rule born in Louisiana's 1898 convention, and the originalist case is strong. Garland in 2016 and Barrett in 2020, and What Advice and Consent Really Means The Senate treated Garland and Barrett differently because consent is a power it may give or withhold, and the hypocrisy charge needs answering point by point. The Nuclear Option of 2013 and 2017, and How Filibusters for Judges Ended The judicial filibuster died in three stages, each side blamed the other, and the real question is what a simple majority for judges means for whoever loses. Social Security is not your property, and Flemming v. Nestor said so The Supreme Court held in 1960 that workers have no contractual right to Social Security benefits, so every promise about them is a political one. Seven Myths About the Roberts Court, Tested Against Its Own Opinions The story of a Court voting in partisan lockstep fails when you read the opinions, so here are seven popular claims, each checked against the record. How the Bill of Rights Came to Bind the States, One Right at a Time A dated timeline of incorporation, from Barron v. Baltimore in 1833 to Timbs v. Indiana in 2019, and what the long road teaches about liberty. Justice Harlan Said Our Constitution Is Color-Blind in 1896, and He Was Right A close reading of Harlan's Plessy dissent, the case behind it, and why its principle, not race-conscious policy, is the road to equality. SEC v. Jarkesy Put the Jury Back Between Citizens and Agency Courts The 2024 Supreme Court case holding that the Seventh Amendment guarantees a jury when the SEC seeks civil fraud penalties, and what follows. Are Conservative Justices the Real Activists? A Rebuttal in Six Points Striking down a law is not activism. Activism is departing from text and history, and the record shows which judges do that. North Carolina's dental board, teeth whitening and the Supreme Court When dentists on a state board shut out whitening rivals, the Supreme Court held in 2015 that such boards face antitrust law unless the state supervises them. What Jacobson v. Massachusetts Actually Held About State Health Powers Jacobson v. Massachusetts is cited as a blank check for health orders, but a close reading shows it limits state power and never mentions federal agencies. INS v. Chadha Wiped Out the Legislative Veto in Nearly 200 Laws at Once One house of Congress undid a deportation ruling alone, and the Court held in 1983 that the Constitution's lawmaking steps are not optional. The Slaughter-House Cases Gutted the 14th Amendment's Best Clause in 1873 Five years after ratification, the Court read the Privileges or Immunities Clause into near irrelevance, and later courts reached for due process instead. Equal Justice Under Law, From the Fourteenth Amendment to the Courthouse One standard for the powerful and the powerless is older than the Constitution, and selective prosecution of anyone, left or right, corrupts the whole system. Korematsu Was Finally Repudiated in 2018, and Its Lesson Is About Deference The Court upheld the exclusion of Japanese Americans in 1944 by deferring to wartime claims it never tested, and the danger of that habit outlived the decision. Chisholm v. Georgia Lost in 1793 and the States Answered With the 11th Amendment When the Supreme Court let a South Carolina man sue Georgia in 1793, the states amended the Constitution within two years. Here is how and why. In re Debs and the 1894 Pullman Strike That Made the Labor Injunction The Court unanimously upheld the injunction against Eugene Debs in 1895, and the case warns every conservative who likes emergency power in the right hands. The Ninth Amendment Is Neither a Blank Check for Judges Nor a Dead Letter Conservatives split over the Ninth Amendment. Read with Madison and Federalist 84, it is a binding rule of construction, not a judicial license. The Supreme Court Did Not Get Its Own Building Until 1935, a Timeline For 145 years the Court borrowed rooms, from a New York exchange to a basement and the old Senate chamber, and the wait says much about the weakest branch. Samuel Chase's 1805 Impeachment and Why Judges Are Not Removed for Their Rulings The only Supreme Court justice ever impeached was acquitted in 1805, setting the rule that judges go for misconduct, not for opinions the majority dislikes. The Exceptions Clause Gives Congress a Power Over the Courts It Rarely Uses Article III lets Congress make exceptions to the Supreme Court's appellate jurisdiction, a check the Founders wrote in deliberately, best used rarely. Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not Courts must refuse to apply unconstitutional laws in the cases before them, but that duty does not make the Court sole interpreter for the other two branches. Washington v. Glucksberg and the 9-0 refusal to find a right to assisted suicide In Glucksberg (1997) every justice rejected a constitutional right to assisted suicide, and its history test later shaped Dobbs. The facts and what followed. The Emergency Docket Explained, and Why Both Parties Complain About It Emergency applications now carry some of the Court's weightiest work, decided fast without full briefing, and the complaints switch sides with the White House. Five Supreme Court Dissents That Later Became the Law of the Land A dissent is an appeal to the future; five lone or minority voices, from Harlan to Black to Rehnquist, were later vindicated, and each carries a lesson. Janus v. AFSCME for Teachers, Eleven Questions About Union Fees Since Janus v. AFSCME no public school teacher can be forced to pay a union as a job condition. Eleven plain answers on dues, opt-outs and the contract. Fifty years from Roe to Dobbs in twenty dated turns of the law Twenty dated turns of the law between Roe in 1973 and Dobbs in 2022, each with a line on why it moved the ground under both movements. What Happens in the Supreme Court's Conference Room After Oral Argument Nine justices meet alone, speak by seniority and vote, then the writing begins; here is how the Court really decides, from argument to the June opinions. After Chevron fell, ATF rules lost the deference they quietly relied on Loper Bright ended judicial deference to agency readings of statutes, and that matters most where an ATF rule can put a citizen in prison. Four Votes to Hear a Case, Five to Win It, Inside the Supreme Court's Docket Thousands of petitions reach the Court and few are heard; the rules that sort them, from Rule 10 to the rule of four, shape American law as much as rulings do. Why Rucho Was Right to Keep Federal Judges Out of Partisan Map Fights Rucho v. Common Cause (2019) sent partisan gerrymandering back to legislatures, state courts and Congress, and the Constitution's text backs that result. Moore v. Harper and the Independent State Legislature Theory That Lost The Court rejected the strongest independent legislature theory in 2023 yet kept a federal check on state courts, and the holding repays close reading. When Dentists Policed Teeth Whitening, the Supreme Court Said No A licensing board run by working dentists shut out teeth-whiteners, and in 2015 the Supreme Court held it was not above antitrust law without state supervision. From Bracton to 1868, the legal history Dobbs put back on the record Dobbs rests on a historical finding about abortion at common law and in the states of 1868. The authorities, the statutes, Roe's account and the dissent. The Death Penalty in the Supreme Court, a Timeline From Furman to Bucklew A dated walk through the Supreme Court's capital punishment cases from 1972 to 2020, with what each decision settled and what it left open. Dred Scott, Roe and the danger of a Court deciding who counts as a person Twice the Supreme Court drew a line around who counts under the Constitution, and the people undid it. The history, and the honest limits of the comparison. Justice Stevens's Heller dissent, stated fairly and answered point by point The best case against an individual right to arms, from Justice Stevens in Heller, stated fairly and answered with text, history and state constitutions. Qualified Immunity Divides Conservatives, and Both Sides Have a Point Some conservatives defend qualified immunity; others call it judge-made and unsupported by the 1871 statute. Both get a fair hearing, then a verdict. Purcell v. Gonzalez and Why Judges Should Not Rewrite Election Rules Late In Purcell v. Gonzalez (2006) the Supreme Court told lower courts not to upend election rules weeks before voting. Here is the case, its reach and its critics. Gonzales v. Raich and the Marijuana Case That Split Conservative Justices Raich let Congress ban homegrown medical marijuana that never crossed a state line, and the Court's conservatives divided over it. Eighteen-Year Term Limits for Justices Sound Tidy Until You Read Article III Term limits for justices would take an amendment, and conservatives disagree on whether that is wise. Both views get a hearing before the Founders' design. Nine Justices Since 1869, and Why the Number Should Stay Nine Congress changed the Court's size repeatedly in its first 80 years, often for political reasons. The 1869 settlement held because both parties learned the cost. Six Myths About the Federalist Society, From Secret Lists to Party Orders The Federalist Society is a debate society that takes no case positions. Six common claims about it, tested against how it actually works, each with a verdict. Scalia's Lone Dissent in Morrison v. Olson Saw the Independent Counsel Mess Morrison v. Olson upheld the independent counsel law 7 to 1 in 1988. Scalia's dissent proved right enough that Congress let the law die in 1999. Printz v. United States and the sheriffs who refused to be drafted by Washington Two sheriffs won a 1997 ruling that Congress cannot order local officers to run federal background checks. Printz is a landmark for federalism more than guns. What the 2018 Kavanaugh Hearings Taught About the Presumption of Innocence The 2018 Kavanaugh fight shows how fast a Senate hearing can drop basic fair-process rules, a lesson for every party and for the habit of presuming innocence. Clarence Thomas Went From Pin Point, Georgia, to the Court's Leading Originalist From a Georgia marsh town to 1991 confirmation and decades of solo opinions, Clarence Thomas became the justice most willing to ask what the text first meant. How a Texas student's gun at school produced the Court's Commerce Clause limit United States v. Lopez (1995) held that carrying a gun near a school is not commerce. It was the first real brake on Congress's commerce power in decades. The 1987 Bork Hearings Turned Supreme Court Confirmation Into a Campaign Robert Bork's defeat in 1987 turned confirmation from a review of credentials into a campaign over a nominee's philosophy. Here is the story and its cost. A 94-Year-Old Lost Her Condo Over a Tax Debt and the Court Said Enough In Tyler v. Hennepin County a unanimous Supreme Court held that a county cannot keep a seized home's value beyond the tax debt, a plain property-rights win. Presidential Immunity in Trump v. United States, Read Like a Law Student Trump v. United States set three tiers of criminal immunity. Read the opinion, Barrett and the dissent, and judge it as a rule for every future president. Students for Fair Admissions Ended an Experiment That Began With Bakke in 1978 Forty-five years after Bakke, the Court ended race-conscious admissions. Here is the path from Powell to Roberts, and what schools may still do. Coach Kennedy's Prayer at Midfield and the End of the Lemon Test Kennedy 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 Ironic Chevron 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 Agencies Schechter 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 Plants Congress 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. The Supremacy Clause Makes Federal Law Supreme Only When Made in Pursuance Federal law beats state law only when Congress acts within its powers, and Washington may never draft state officers to run its programs. Bostock Was Written as Textualism, and Textualists Split Over It Gorsuch 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 States Shelby 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. Qualified Immunity Explained, From the 1871 Klan Act to Today's Fights Qualified immunity is a judge-made shield on a Reconstruction statute that never mentions it. How it grew and why conservatives split. John Roberts Called the Mandate a Tax, and Conservatives Still Argue About Why Roberts's 2012 vote in NFIB v. Sebelius rested on the saving construction, and conservatives split over whether that was restraint or rewriting. The Amistad Captives Won Their Freedom at the Supreme Court in 1841 Africans who seized a Spanish schooner were claimed as property; a former president argued they were free. The facts and holding of The Amistad. Five Myths About Citizens United That Still Show Up in Stump Speeches Corporate personhood, foreign money, unlimited gifts and the end of disclosure: five common claims about Citizens United tested against the opinion. Justice Thomas stood alone in Rahimi, and his dissent deserves a careful reading Eight justices upheld the federal ban on guns for people under domestic-violence orders. Justice Thomas dissented, and conservatives can learn from both sides. The Takings Clause Explained, From Public Use to Just Compensation The Fifth Amendment protects property in two phrases, public use and just compensation, and courts have stretched the first while shrinking the second. Tennessee v. Garner and the End of the Old Fleeing Felon Rule Tennessee v. Garner ended the old rule letting officers kill any fleeing felon. The history shows why it had to change and where the Court drew the line. From Plessy to Chevron, a Timeline of Precedents the Court Was Right to Overrule A dated timeline of eight reversals, from Gobitis to Loper Bright, answering the claim that overruling precedent is radical. Brutus Warned in 1788 That Unelected Judges Would Swallow the States The Anti-Federalist Brutus predicted judges would read the Constitution by its spirit and enlarge national power. Which predictions came true? Caetano v. Massachusetts and the stun gun that defended a mother's rights In Caetano the Supreme Court unanimously vacated a ruling that stun guns fall outside the Second Amendment because they postdate 1791. Modern arms are covered. Graham v. Connor and the Officer's View in a Split Second Graham v. Connor says police force is judged by a reasonable officer on the scene, not by hindsight. Here is the case, its three factors, and its critics. Stare Decisis Explained, and the Factors Justices Weigh Before Overruling Precedent deserves respect, not worship, and the Court keeps a working list of factors for deciding when a past mistake must be corrected. Neither Force Nor Will, Hamilton's Federalist 78 Read Line by Line Federalist 78 says judges have neither force nor will but merely judgment. Read in order, it is a standard every judge can be measured against. Dobbs v. Jackson Read Closely, From Alito's History to the Joint Dissent A 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. Article III Lets Congress Shape the Federal Courts, and It Rarely Does Article III creates one Supreme Court and hands Congress the rest. Here is the text, the history and the tools Congress holds but seldom uses. Cruikshank, Colfax and how the Court left freedmen disarmed in 1876 Cruikshank held the Second Amendment bound only Congress, after the 1873 Colfax massacre. Freedmen stayed exposed until McDonald fixed incorporation in 2010. Roe v. Wade Was Weak Law Even to Scholars Who Liked the Result The 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 Penumbras Griswold 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. Miller, the one-sided 1939 case that muddled gun law for years Miller upheld a tax on short-barreled shotguns after no lawyer argued for the defendants. Lower courts misread it as militia-only, and Heller set it right. King v. Burwell and the Four Words the Supreme Court Chose to Rewrite In King v. Burwell (2015) the Court read "established by the State" to include federal exchanges, and what the case teaches about Congress, agencies and courts. United States v. Lopez Was the First Commerce Clause Limit Since the New Deal In 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. The Line-Item Veto Died in 1998 Because the Presentment Clause Says So Clinton v. City of New York struck down the line-item veto because a president may sign or veto a whole bill and nothing in between. Conservatives should cheer. Lochner v. New York Divides Conservatives More Than Progressives Admit Lochner 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. Humphrey's Executor Created a Fourth Branch the Constitution Never Mentions A 1935 ruling that a President could not fire an FTC commissioner created agencies answerable to no one. The facts, the reasoning and the case for overruling. 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. Boumediene v. Bush and the Day Habeas Corpus Reached Guantanamo Bay The 2008 five-to-four decision gave enemy detainees habeas review, and conservatives said it put judges in charge of a war. The text, dissents, aftermath. Biden v. Nebraska and the Limits of a Secretary's Power to Cancel Debt Biden v. Nebraska held a 2003 emergency law did not let the Education Secretary cancel hundreds of billions in student loans, because Congress holds the purse. Five Times the Court Told an Agency That Big Questions Belong to Congress The major questions doctrine grew over 23 years. Five cases, each with the agency claim, the statute and the holding, and an answer to the invention charge. Marshall Gave Up William Marbury's Commission to Win the Bigger Argument In 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 Walls Marshall read Necessary and Proper broadly in 1819 but insisted on limits, and later courts kept the breadth and dropped the walls. The Prize Cases of 1863 and How Lincoln Fought a War Before Congress Met The Court's 5-4 decision upholding Lincoln's blockade defined when a president may meet an attack without waiting for Congress, and where that power stops. Dred Scott Is the Warning Every Fan of Judicial Supremacy Should Read The 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. Youngstown Sheet and Tube Is the Case That Tells a President No in Wartime In 1952 the Court stopped Truman from seizing the steel mills during the Korean War, and Justice Jackson's three zones became the map for war power disputes. Justice Harlan's Lone Dissent in Plessy and the Colorblind Constitution One Justice stood alone against Plessy in 1896, and his reasoning became the ancestor of the colorblind-Constitution argument. A Muslim inmate's half-inch beard and the 9-0 ruling against Arkansas Holt v. Hobbs (2015) held unanimously that Arkansas could not ban a short beard grown for religious reasons. Liberty for one faith is liberty for all. Excessive Bail Shall Not Be Required, and What the Founders Meant by It The Eighth Amendment bars excessive bail, and the Founders paired bail with a power to hold the dangerous. Read the clause, the history and the cases. Can an Originalist Defend Brown v. Board? Yes, and Here Is the Case The Fourteenth Amendment's text and the Reconstruction record support Brown v. Board, even though the Court's own opinion left that argument aside. A Brooklyn Poultry Firm Beat the New Deal Nine to Nothing in 1935 Schechter Poultry v. United States struck down the NIRA codes unanimously. The facts, the opinions and why no statute has fallen on nondelegation grounds since. Five Serious Objections to Originalism and the Answers That Hold Up The best critiques of originalism deserve a fair hearing, and each one has an answer in the text, the cases and the record. Hospitals Went to Court to Keep Their Prices Secret, and They Lost The hospital industry sued to block the federal price transparency rule, lost in two courts, and the case shows who benefits when prices are hidden. The 1985 Debate Between Edwin Meese and William Brennan That Revived Originalism In 1985 an Attorney General and a Justice traded speeches that launched the modern argument over how to read the Constitution. Wong Kim Ark and the 1898 Birthright Case, Read Fairly From Both Sides United States v. Wong Kim Ark is narrower than its fans claim and stronger than its critics admit, and a fair reader should see the text on both sides. Textualism and Originalism Are Cousins, Not Twins, and the Difference Matters Textualism reads statutes and originalism reads the Constitution, and keeping them apart clears up most public arguments about judges. Employment Division v. Smith and the Scalia rule that still splits conservatives Smith held that neutral, generally applicable laws need no religious exemption. Conservative jurists still argue both sides, and both deserve a fair hearing. The Necessary and Proper Clause Was Never Meant to Be a Blank Check The Necessary and Proper Clause carries out the listed powers and adds none. Madison and Hamilton both said so in 1788, and Marshall agreed in 1819. Knick v. Scott Township Reopened the Federal Courthouse to Landowners For 34 years a rule locked landowners out of federal court on takings claims. Knick ended it in 2019, 5 to 4, and the Fifth Amendment is stronger for it. The Chinese Exclusion Case and How the Court Found a Sovereign Power to Exclude Chae Chan Ping v. United States rests a nation's power to exclude on sovereignty itself, a principle worth keeping even as we condemn the law that produced it. Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen A judge who may update the Constitution answers to no one, so fixing its meaning at ratification keeps judges under the same law as everyone else.