Formalism Resurgent? Seila Law v. CFPB

The Supreme Court has a new mixed drink: it’s five parts formalism to four parts functionalism, with a splash of Humphrey’s Executor. This new drink was on full display in Seila Law LLC v. CFPB, in which five Justices concluded that Congress violated the separation of powers when it placed limits on the President’s power to fire the CFPB’s director. Those five Justices used what’s called the “formalist” approach, prevailing over the competing “functionalist” approach adopted by the four dissenting Justices. Throughout history, the Court has oscillated between formalism and functionalism, especially in cases involving the President’s power to remove public officials. For the latter half of the 20th century, functionalism appeared to be the dominant approach to removal-power cases—until two recent decisions from the Roberts court. Might formalism now be seeing a resurgence?

Read More »

Fides et Ratio: Espinoza v. Montana Dept. of Revenue

Fides et ratio, or “faith and reason,” was the penultimate encyclical of Pope John Paul II. He argued that faith and reason do—and must—go hand in hand. Doubtless, among those who would agree with this principle are the Montana parents who sued in Espinoza v. Montana Dept. of Revenue to send their children to parochial schools after winning tax-credit-funded scholarships. At first, the parents lost; the Montana Supreme Court invalidated the entire scholarship program. Last week, however, the U.S. Supreme Court reversed that decision by a 5:4 vote, concluding that it violates the Free Exercise Clause of the First Amendment to strike down the program under a version of the Blaine Amendment in the Montana state constitution. Here’s my analysis.

Read More »

July? Julying! Weekly Brief for June 29

For the first time since 1996, the Supreme Court’s term has officially extended into the month of July. The Court decided five cases this week, touching on abortion, free speech, religious liberty, administrative agencies, and copyright law. It also added four cases to next term’s docket, one of which concerns the release of grand jury materials from Special Counsel Mueller’s investigation into Russian meddling in the 2016 election. Here’s a recap of the Court’s busy week.

Read More »

A Testament to Precedent: June Medical Services v. Russo

Last Monday, the Supreme Court in June Medical Services, L.L.C. v. Russo struck down a Louisiana abortion law as unconstitutional. Abortion always makes for a blockbuster topic at the high court, but this decision was about as narrow as it could have been. The case hinged entirely on the vote of Chief Justice Roberts, whose opinion rested on an extraordinary application of stare decisis. What does this mean for Louisiana and, more importantly, future abortion cases at the Court? Read more to find out:

Read More »

The Calm Before the Storm: Weekly Brief for June 22

This week was relatively quiet, especially as the Court nears the end of its term. The Justices decided just two cases: Liu v. SEC (an arcane securities law case) and DHS v. Thuraissigiam (challenging asylum denials in court). They didn’t grant any new cases. Court-watchers enjoyed a brief lull after the tumultuous Title VII and DACA decisions last week, but that lull won’t last long. We’re the unguarded tree in the photo above, facing an impending deluge of 13 major decisions to be handed down over the next few weeks. So as we await the Court’s decisions in matters concerning abortion, Trump’s tax returns, religious liberty, Obamacare, free speech, and the Electoral College (among others), there’s just one thing to say: I hope you enjoyed the calm before the storm.

Read More »

An Earth Day Extravaganza: Weekly Brief for April 20

Earth Day was Wednesday, April 22. So it was only fitting that the Supreme Court decided its first environmental law cases of the term—two of them, in fact. One dealt with the process for cleaning up “Superfund” sites, and the other with point source pollution permits under the Clean Water Act. But the Court didn’t stop there; four more decisions were handed down: a landmark Sixth Amendment case, for which I wrote an in-depth analysis here; a complex immigration law case, for which you might need multiple cups of coffee and an abacus; and two intellectual property law cases, which, with all due respect, might be best read if you’re trying to fall asleep. Here’s your recap for the week of April 20.

Read More »

Congress Walks the Plank: Allen v. Cooper

This past Monday, the Supreme Court in Allen v. Cooper struck down a 1990 Congressional statute that had allowed citizens to sue a state in federal court for copyright infringement. The case arose after a marine salvage company discovered the wreck of the Queen Anne’s Revenge, Blackbeard’s famous pirate ship, off the coast of North Carolina and recorded documentary footage of the discovery. When North Carolina published some of the footage in various media, the company sued the state for copyright infringement. The question before the Court was whether the Constitution gives Congress the power to rescind the states’ sovereign immunity from copyright infringement claims. Justice Kagan answered “no” with a 7:2 majority, leaving the company marooned. (For lovers of wordplay and maritime puns, this piece is for you.)

Read More »

This Week’s Brief: January 20

The Court concluded its January sitting this week. It heard arguments in three cases, ranging from the Armed Career Criminal Act to contract and arbitration law to the Religion Clauses of the First Amendment. The Court issued no decisions, although Justice Breyer did pen a short statement relating to Monday’s orders list. Finally, the Court declined to expedite consideration of the twin “Obamacare” cases out of the Fifth Circuit Court of Appeals. Here’s your brief for the week of January 20.

Read More »