Category Archives: Supreme Court

“Will Justice Barrett Switch Sides on Independent State Leg. (ISL) Theory?”

July 4, 2022, 12:04 pmlegislation and legislatures, Supreme CourtDan Tokaji

Interesting post on Daily Kos, claiming: “[B]ack when ACB was trying to get the GOP nominee elected president [in 2000], she argued AGAINST the ISL theory. Had the ISL theory been applied in her case, her side would’ve lost, and… Continue reading

“Trust in Supreme Court falters after Roe decision”

July 4, 2022, 5:14 amSupreme CourtDan Tokaji

WaPo on Dobbs and the cert grant in Moore v. Harper: The abortion ruling came amid a string of high-profile decisions, including ones expanding gun rights and curtailing the Environmental Protection Agency’s ability to curb carbon emissions. On Thursday,… Continue reading

“How the Founders Intended to Check the Supreme Court’s Power”

July 4, 2022, 4:47 amSupreme CourtDan Tokaji

A historical case for court packing and jurisdiction stripping, from Politico Magazine: Acting in concert, the president and Congress may shape both the size and purview of the court. They can declare individual legislative measures or entire topics beyond… Continue reading

“It’s Hard to Overstate the Danger of the Voting Case the Supreme Court Just Agreed to Hear”

June 30, 2022, 10:14 amSupreme CourtRick Hasen

I have written this piece for Slate on today’s cert grant in Moore v. Harper.

Breaking and Analysis: Supreme Court Will Hear Moore v. Harper, the Independent State Legislature Theory Case from North Carolina; This Case Could Severely Curtail the Ability of State Courts to Protect Voting Rights and Stop Partisan Gerrymandering

June 30, 2022, 7:48 amSupreme CourtRick Hasen

The Supreme Court today just agreed to hear Moore v. Harper, an “independent state legislature” theory case from North Carolina. This case has the potential to fundamentally rework the relationship between state legislatures and state courts in protecting voting rights… Continue reading

Analysis: Supreme Court in EPA Case, Like the OSHA Case Earlier This Term, Shows The Court is Not Really “Textualists” and Applies Statutory Canons Reflecting Its Values

June 30, 2022, 7:31 amstatutory interpretation, Supreme CourtRick Hasen

Dissenting today in West Virginia v. EPA, Justice Kagan writes: “Some years ago, I remarked that “[w]e’re all textualists now.” Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes… Continue reading

ELB Book Corner: George Thomas: “The Inescapability of Constitutional Judgment”

June 29, 2022, 6:56 amELB Book Corner, Supreme CourtRick Hasen

I am pleased to welcome to ELB Book Corner George Thomas, author of The (Un)Written Constitution. Here is the final of three posts: In the first post I pointed out that unwritten understandings play a central role in… Continue reading

ELB Book Corner: George Thomas: “The Constructed Constitution”

June 28, 2022, 6:00 amELB Book Corner, Supreme CourtRick Hasen

I am pleased to welcome to ELB Book Corner George Thomas, author of The (Un)Written Constitution. Here is the second of three posts: In the first post, I pointed to the unwritten ideas that constitutional interpretation necessarily rests… Continue reading

ELB Book Corner: George Thomas: “There’s So Much That’s Not in the Constitution”

June 27, 2022, 7:00 amELB Book Corner, Supreme CourtRick Hasen

I am pleased to welcome to ELB Book Corner George Thomas, author of The (Un)Written Constitution. Here is the first of three posts: As we prepare for the Supreme Court to overturn Roe v. Wade, the country is… Continue reading

Supreme Court Does Not Issue Order in “Independent State Legislature” Theory Case, Making It Less Likely That the Court Will Hear the Case….

June 27, 2022, 6:39 amSupreme CourtRick Hasen

and more likely someone is writing a dissent from denial. I have more analysis in this twitter thread. I think it is more likely they’ll take the case out of Pennsylvania.

Opposition to Louisiana’s Request for a Supreme Court Stay in Redistricting Case Now Posted

June 23, 2022, 4:13 pmredistricting, Supreme CourtRick Hasen

You can find them here and here.

Supreme Court Does Not Issue Order Today on Whether or Not to Hear Moore v. Harper, the Independent State Legislature Case

June 21, 2022, 6:38 amSupreme CourtRick Hasen

Nothing on today’s order list about this 800-pound-gorilla of election cases. We could get an order granting a hearing in the case on next week’s order list or a following week, or we could get one or more Justices dissenting… Continue reading

“The Influence of Partisanship on Supreme Court Election Law Rulings”

June 20, 2022, 11:24 amSupreme CourtRick Hasen

Anthony Gaughan has posted this draft on SSRN (Notre Dame Journal of Law, Ethics and Public Policy). Here is the abstract: This article examines the role of partisanship in Supreme Court election law rulings. To that end, it surveys the… Continue reading

Listen to Slate “Amicus” Podcast with Joan Biskupic, Dahlia Lithwick, and Me: “Somewhere John Roberts Is Screaming Into an Expensive Pillow; How does SCOTUS even operate in this environment?”

June 20, 2022, 7:43 amSupreme CourtRick Hasen

I had a great conversation with Dahlia Lithwick and Joan Biskupic on the Slate Amicus podcast about the weird state of the Supreme Court before the coming storm and the Court’s intersection with the January 6 investigation. You can listen… Continue reading