In 2008, the Court rejected a challenge to the three-drug protocol that Kentucky used to carry out executions by lethal injection, holding that it did not violate the Eighth Amendment’s prohibition on cruel and unusual punishment.  In that case, inmates had unsuccessfully argued that there was a risk of serious pain if the protocol was not followed properly.  Today, in a decision marked by deep divisions among the Justices, the Court rejected a new lethal injection challenge –  this time to Oklahoma’s use of a drug called midazolam, a sedative normally used to treat anxiety.  Let’s talk about the decision in Glossip v. Gross in Plain English.  Continue reading »

There is a lot of commentary about the unusually liberal results of this Term.  I thought I would mention a few data points which back up that view of things.

For present purposes, I treat four Justices as sitting to the Court’s left: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.  I treat four Justices as sitting to the Court’s right:  Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.  I treat Justice Anthony Kennedy as the Court’s “center.”

I count 26 cases this Term that were both close (5-4 or 6-3) and ideological (in the sense that they broke down principally on ideological lines, with ideology seemingly an important factor).  Continue reading »

Posted in Analysis, Featured

Raising new doubts about state universities and colleges’ use of race in choosing their entering classes, the Supreme Court on Monday assigned itself once more the task of judging the constitutionality of the admissions plan at Texas’s flagship university.  The grant of review of Fisher v. University of Texas at Austin — the Court’s second look at that case — signaled uncertainty and maybe discontent with the way a federal appeals court had carried out a new review of that plan.

At this point, the Fisher case does not appear to pose a direct threat to the Court’s most recent ruling allowing some use of race in higher education admissions — the 2003 decision in Grutter v. Bollinger.  But that precedent may be at least reinterpreted, and possibly narrowed.

That was one of five cases in which the Justices granted review on Monday.  The Court may grant additional cases when it issues the final orders of the current Term, at 9:30 a.m. Tuesday.

Continue reading »

Posted in Featured

By the time the majority opinion was filed last Friday in Johnson v. United States, it was hardly a surprise that the Court struck down the “residual clause” of the federal Armed Career Criminal Act as unconstitutionally vague (as previewed here and here). While Justice Samuel Alito, in dissent, says that the majority is “transforming vagueness doctrine,” Justice Antonin Scalia writing for five Justices, and echoing Justice Oliver Wendell Holmes, says that “the life of the law is experience” — and the Court’s particular experience of applying the residual clause over the past decade is so uneven that only “guesswork and intuition” remain. Thus the statutory sentencing clause “fails to give ordinary people fair notice of the conduct it punishes, [and is] so standardless that it invites arbitrary enforcement.” It therefore violates traditional due process fairness concerns that underlie the Court’s twentieth-century vagueness doctrine. Continue reading »


We are live-blogging this morning as the Court issues orders and opinions. Join us.

Posted in Live

Monday round-up

By on Jun 29, 2015 at 7:43 am

Court-related coverage and commentary are dominated by Friday’s decision in Obergefell v. Hodges, in which the Court struck down state bans on same-sex marriage and the recognition thereof.  Andrew Hamm rounded up early coverage of the decision for this blog; other coverage comes from NPR’s Nina Totenberg for All Things Considered, who also had a story with Mara Liasson and a video; from Steven Mazie at The Economist’s Democracy in America Blog; from Chantal Valery and Robert Macpherson for Agence France-Presse (via Yahoo! News); and from Michael Bobelian of Forbes. Still more coverage comes from Tony Mauro and Marcia Coyle, who in The National Law Journal (subscription or registration required) report that the decision  “was a major leap, but not the final legal step in ending discrimination against lesbian, gay, bisexual and transgendered people.”     Continue reading »

Posted in Round-up

This week at the Court

By on Jun 28, 2015 at 12:01 am

On Monday the Court granted five new cases, which Lyle reported on, and issued decisions in the last cases of the Term: Michigan v. EPAAZ Legislature v. AZ Independent Redistricting Commission, and Glossip v. Gross.

On Tuesday the Court granted an additional five cases, which Lyle reported on here and here.


Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He blogs at

In the nature of split decisions, the majority opinion makes an affirmative argument and the dissent criticizes that argument, with the majority responding, if at all, in footnotes and other asides. That pattern holds in Obergefell v. Hodges. In sometimes-soaring language, Justice Anthony Kennedy’s opinion barely addresses the pointed and occasionally nasty critique leveled in four separate dissents, perhaps leaving the impression that nothing can be said in response. Continue reading »

Today we are happy to present the second preview of our final Stat Pack for the October Term 2014. As we approach the last opinion day of the Term, several key trends are beginning to reveal themselves. You can view the Stat Pack in its entirety here. You can also view each portion of the Stat Pack individually and review our takeaways from this version of the Stat Pack below. Continue reading »


Symposium: Overruling Windsor

By on Jun 27, 2015 at 2:38 pm

Kyle Duncan is a lawyer in private practice in Washington, D.C. He successfully defended Louisiana’s marriage laws in Robicheaux v. Caldwell, and filed an amicus brief on behalf of fifteen States in Obergefell v. Hodges. The views in this post are his alone.

 In Obergefell v. Hodges, fifteen states submitted an amicus brief cautioning that a decision constitutionalizing the issue of same-sex marriage would repudiate the Court’s own recent decision in United States v. Windsor, demean the democratic process, and imperil civic peace by marginalizing the views of millions of Americans. Now that decision has come. Let’s examine it in light of the concerns raised by those states. Continue reading »

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