A Tale of Two Neil Gorsuches
It seems just last month Justice Gorsuch was saying his rule was not to “make it up" and was to "follow the law.” The Title VII cases allow us to see whether that's the case.
Judges, Do The Reading
The oral argument in the TPS case featured a line of questioning that suggested one of the judges had not read the relevant Supreme Court case.
The Court’s Border Wall Fiasco
The Supreme Court’s decision to stay the injunction against the President’s construction of the border wall made no sense. It is also part of a troubling trend of restricting remedies against unlawful government action.
Updates | The Week of January 15, 2018
The Supreme Court will hear oral arguments about whether Courts of Criminal Appeals judges can constitutionally sit on Court of Military Commission Review, including the court at Guantanamo Bay.
Updates | The Week of December 18, 2017
The recent withdrawal of three judicial nominees is an aberration from President Trump’s large success in nominating young conservation jurists to the federal bench over the last year.
Updates | The Week of November 20, 2017
President Trump released a revised list of potential Supreme Court candidates, which many see as a signal to Associate Justice Anthony Kennedy. The White House fought back against criticism that the Federalist Society controls the administration's judicial appointments.
Updates | The Week of October 23, 2017
The future of the blue slip remains uncertain. A federal judge refused to erase Sheriff Joe Arpaio's conviction, even after the President's pardon.
Updates | The Week of October 2, 2017
The Supreme Court showed varying degrees of deference to the government's versions of the facts over the last term. One of President Trump's judicial nominees received a rare "not qualified" rating from the ABA.
The Travel Ban and Inter-Branch Conflict
The real problem is the Trump Administration itself. What feels like damage today is largely the echo of damage that already happened, rather than something new.
Masterpiece Cakeshop and Protecting Both Sides
By Thomas C. Berg & Douglas Laycock: The classic American response to deep conflicts like that between gay rights and traditional religious faith is to protect the liberty of both sides
The Nuclear Option and Democratic Deterioration
The Gorsuch nomination battle illustrates and exacerbates the dynamics of democratic deterioration. Reversing these trends will require elected officials to act with courage. It will also require significant structural changes to our political system.
Senator Collins's Shell Game On Roe v. Wade
Susan Collins claimed that there is no reason to worry about Justice Kennedy's replacement because the Chief Justice (!!!) and Justice Gorsuch (¯\_(ツ)_/¯) would never overturn Roe v. Wade. That's wrong.
Versus Trump: Kavanaugh's Coming, Plus Updates
On this week's episode of Versus Trump, Jason, Charlie, and Easha discuss the retirement of Justice Kennedy and how his presumptive replacement may rule in Versus Trump cases. They then do some quick hits to update a handful of important cases. Listen now!
Versus Trump: Judges of Christmas Future
On this week’s Versus Trump holiday spectacular, it's all judges, all the time. Charlie, Jason, and Easha take a closer look at a number of the President's judicial nominees—confirmed, pending, and withdrawn—to examine what might happen to Versus Trump cases in years to come. Listen now!
Versus Trump: I Want Out!
On this week’s episode of Versus Trump, Charlie and Easha discuss the cases against Trump University, the global settlement that was reached, and whether the pending challenge by a lone objector can—or should—alter the result. Listen now!
SCOTUS And The Wall
One of the Supreme Court’s pending cases is potentially relevant to one of the challenges to the President’s emergency declaration.
Versus Trump: DACA's Back!
On a new episode of Versus Trump, Easha, Jason, and Charlie discuss the big decision that forced the Trump Administration to restart the DACA immigration program. Listen now!
Thoughts on Roberts and Trump
We have at once a highly political appointment process and a strong judicial ethos of being above politics.
The Comey Affair And Evidence Of Motive
The Comey affair underscores that decisionmakers must look beyond the administration’s “official” documents to determine the administration’s motives.
The Value of Gerrymandering
What is the value to democracy from political gerrymandering for partisan advantage? The intuitive answer is the right one: None.
Versus Trump: Versus DeVos (Re-Air)
On this week’s episode of Versus Trump, as summer ends and a new school begins, we re-air Jason's interview with Toby Merrill, the director of the Project on Predatory Student Lending at Harvard Law School, about several lawsuits she's involved with against newly-confirmed Secretary of Education Betsy DeVos. We'll be back soon with new episodes.
Against Type Briefs
Filing an amicus brief joined by Republicans critical of the Trump Administration and with some claim of expert knowledge made by these Republicans related to the constitutional issues can be a powerful tactic to use in courts.
Versus Trump: A Gadfly Suit + Leah Litman
On a new episode of Versus Trump, Take Care's podcast, Easha, Jason, and Charlie discuss a lawsuit against the President that's been brought by a D.C. gadfly who claims that Trump did not provide sufficient detail on the financial disclosure form he submitted as a candidate. Then, Easha talks with Leah Litman about the status of the Muslim ban litigation and the role of oral advocacy in this and other high-profile cases. Listen now!
Versus Trump: 2017 Scorecard
On the first episode of Versus Trump of 2018, Jason and Charlie look back at Versus Trump cases in 2017 and score them as Administration wins, losses, or not-yet-decided. They also look ahead at big issues to come in 2018. Listen now!
Versus Trump: Straight to the Supremes (We're Back!)
This week on Versus Trump, Jason and Charlie are back from a hiatus, and they discuss why the Trump Administration has been going to straight to the Supreme Court with emergency requests so frequently. Listen now!
Judges Shouldn’t Have the Power to Halt Laws Nationwide
A hand-picked district court judge in Texas might soon enter an injunction prohibiting the enforcement of all or part of the Affordable Care Act across the entire country. Something is very wrong with that picture.
States And The Emoluments Clause
In a new lawsuit, Maryland and D.C. allege that the President's violations of the Emoluments Clauses harm their sovereign, quasi-sovereign, and proprietary interests. Those interests get special solicitude in federal court.
The Substance of the Supreme Court’s procedure
Last week’s Supreme Court stay orders say a lot about how the Court views the substance of the underlying constitutional claims in Dunn v. Ray and June Medical Services v. Gee.
What’s the Price of Tolerance?
Robust protection of speech does not require gutting laws that help ensure that all persons—regardless of race, gender, religion, or sexual orientation—can buy the good and services they desire, free from discrimination.
Versus Trump: Pardon Our Tone
On this week’s episode of Versus Trump, Easha, Jason, and Charlie discuss the President's pardon of Sheriff Joe Arpaio and the (so far unsuccessful) legal challenge to that pardon. Listen now!
The Mandatory Guidelines Predicament
Prisoners sentenced under the mandatory Sentencing Guidelines are not faring well in the courts of appeals, and the Supreme Court won't have a ton of opportunities to correct those decisions, if it thinks they are wrong.
Animus, Past and Present
In a new op-ed, Erwin Chemerinsky and I argue that the entry ban is unconstitutional because it was driven by animus toward Muslims.
How the Russian Conspiracy Injured Real, Innocent People
On Thursday, the one year anniversary of Special Counsel Robert Mueller’s appointment, attorneys for Donald Trump will stand up in a court of law to answer questions for the first time related to Russia. But it won’t be in the Mueller investigation.
Why Trump’s Firing of Comey is Terrifying
Our country has a very strong, very important norm of apolitical law enforcement. But this norm, ironically, is enforced mostly by politics, not law—and Trump’s action has risked doing it irreparable damage. Going forward, here's what to watch at the state and federal levels.
Versus Trump: SABOTAGE!!
On this week's episode of Versus Trump, Jason and Charlie begin their run of shows with Easha on leave and discuss a fascinating new lawsuit contending that the Trump Administration is unconstitutionally "sabotaging" the Affordable Care Act as a whole. Listen now!
Judicial Deference to President Trump
It is time to ask: Has Trump in effect forfeited some measure of judicial deference across contexts and cases, through his disrespect for the courts and the rule of law and his displays of prejudice and arbitrary decisionmaking? And if he has not yet reached that point, what more would it take?
The Rule of Law and the Resistance Police
Trump’s defenders have long ascribed illegitimate motives to his critics. Now they’re doing that to the judges who have found Trump’s policies unlawful. That’s not okay.
Versus Trump: Where There's A Gil... (On Partisan Gerrymandering)
On this week’s episode of Versus Trump, we discuss a lurking issue with opposing Trump in upcoming elections: partisan gerrymandering. Charlie and Easha take a close look at the case of Gil v. Whitford, a case the Supreme Court recently announced it will take up next fall. In Gil, the Supreme Court may boldly announce a new rule that might seriously curb partisan gerrymandering—or the Court may entirely stop courts from being able to hear these cases at all. Listen now!
Versus Trump: Versus Whitaker, In-Depth
On this week's episode of Versus Trump, the gang is re-united, and they discuss the Supreme Court motion contending that Matthew Whitaker was not legally appointed as Acting Attorney General. Listen now!
Why Firing Comey Guts DOJ's Main Defense of the Muslim Ban
Sometimes, when an emissary of the President asks courts to “trust us,” things the President does elsewhere can fatally undermine judicial confidence in the President’s respect for rule of law values. We’ve seen it before and we’re about to see it again.
Korematsu And The Entry Ban (Again)
Recently revealed errors in the report that the administration created pursuant to the second entry ban further underscore the parallels between Korematsu v. United States and the entry ban.
DOJ Goes Big So Prisoners Can't Go Home
DOJ now argues that people who are in prison based on mistaken understandings of criminal statutes must stay there. The Supreme Court should consider granting certiorari to correct its mistake (and the Eleventh and Tenth Circuits’).
A Note Of Caution About Timbs v. Indiana
The concurring opinions in Timbs v. Indiana raise some concerns about how (some of) the Justices would address the Trump administration’s treatment of undocumented minor women.
Tweetstorm Round Deux
The President's latest statements on Twitter undermine DOJ's defense of the entry ban, and continue the President's efforts to blame everyone (including DOJ and the courts) but himself.
Entry Ban Animus Revisited
Many of the Supreme Court’s recent decisions tell us what we need to know: Under any meaningful standard for assessing government motives, the entry ban must fail.
The Constitutional Challenge To The CFPB
The major constitutional challenge to the Consumer Financial Protection Bureau rests on the claim that the President of the United States does not have enough power over the agency.
Versus Trump: Versus Mueller
After two special interview episodes of Versus Trump, Jason and Charlie get back to the usual format and talk about the leaked Dowd memo arguing that President should not be required to sit for an interview with the Special Counsel. Listen now!
Real Reasons To Worry About Filibuster Repeal
The filibuster repeal itself is ultimately far less important than some deeper trends it reflects concerning partisanship, institutional norms, and the separation of powers in our constitutional order.
Relitigating Dunn v. Ray
The Supreme Court has insisted on relitigating and reaffirming its decision in Dunn v. Ray. So let's do that.
Versus Trump: A Two-Level Versus Trump Case
On this week's episode of Versus Trump, Jason and Charlie talk about a case that fits our podcast on two levels: it's a lawsuit against the Trump Administration about grand jury secrecy, and any decision could impact the Mueller investigation, which is the biggest Versus Trump case of them all. Listen now!
Masterpiece Cakeshop And The Entry Ban
In Masterpiece Cakeshop, Justice Kennedy tells us a lot about why the Court should reject the government's arguments on the First Amendment claim in the entry ban case.
Versus Trump: (Judicial) Independence Day Spectacular!
On this week’s episode of Versus Trump, we celebrate Independence Day with a look at the past, present, and future of judicial independence. Jason and Easha discuss the origins of judicial power, and then talk about what the Trump Administration has done that may undermine the authority of the judiciary—and where that kind of talk might lead us. Listen now!
A Reality Check On Proceedings Related To The Entry Ban Injunctions
Some commentators are seizing on court orders in the proceedings related to the scope of the injunction against the entry ban as an indication that courts are rethinking their decisions against the entry ban. That's wrong (with a cautionary note about the federal courts).
Justice Kavanaugh Said No On Roe
In June Medical Services, Justice Kavanaugh did exactly what reproductive justice advocates said he did on the court of appeals, and warned he would do once he got to the Supreme Court. Are you listening Susan Collins?
Versus Trump: N.Y. Versus Wilbur Ross
On this week's episode of Versus Trump, Jason and Charlie talk about the fight over Commerce Secretary Wilbur Ross's potential testimony in an important lawsuit over the census. Listen now!
A Response to Will Baude on Mootness in the Entry Ban Case
I've argued that the Supreme Court shouldn't grant review of the travel ban case because 33 hours after the Respondents file their response to the petition for certiorari on June 12, the entry ban will no longer be operative. Here I respond to two purportedly “plausible” alternative interpretations of the executive order offered by William Baude.
Versus Trump: #MeToo vs. Trump
On this week’s episode of Versus Trump, Charlie, Jason, and Easha talk about a defamation lawsuit brought by Summer Zervos, a woman who alleges that she was sexually assaulted by President Trump in a hotel room in 2007. Listen now!
Versus Trump: Movin' Right Along
On a new episode of Versus Trump, Jason and Charlie revisit two lawsuits in which the Plaintiffs have recently successfully fought off motions to dismiss and been allowed to proceed. And in a new installment of "Sanctions Corner with Uncle Charlie," Charlie answers questions about the FBI raid on the office of Trump lawyer Michael Cohen. Listen now!
Getting To No On Roe: It Continues
Another recent decision from a court of appeals (this time the Fifth Circuit) illustrates how states and courts can undermine women’s right to decide to end their pregnancies without formally overruling the relevant Supreme Court decisions.
Versus Trump: To End a Presidency? (Interview with Joshua Matz)
On this week's episode of Versus Trump, Jason talks about the past, present, and future of impeachment with Joshua Matz. Joshua is the publisher of Take Care and the co-author, with Laurence Tribe, of the acclaimed new book To End a Presidency: The Power of Impeachment. Listen now!
Where are the Facts?
At oral argument in Janus v. AFSCME, Council 31, an important case about public sector unions, there were a lot of empirical questions—but not a lot of answers.
Legal Innocence and Federal Habeas
A recent article shows why federal courts can and should revisit the convictions and sentences of many federal prisoners affected by Sessions v. Dimaya.
Remedial Convergence and Collapse
The Supreme Court's recent summary reversal in Kisela v. Hughes demonstrates some serious issues with the Court's approach to remedies in cases of executive violations of constitutional rights.
Stare Decisis, The Supreme Court, And Roe
Some further evidence that a mere belief in stare decisis and judicial precedent does not mean a judge will not overrule cases, as Susan Collins has (falsely) suggested.
Dark Money and Judicial Nominations Under Trump (And Beyond)
Our treasure of an independent judiciary is built upon an assumption of independence, of transparency about influence and potential conflicts, and accountability to the democratic process. When massive amounts of dark corporate money can affect those political processes, we are in grave danger of damaging that national treasure.
Versus Trump Podcast: Prosecuting Trump FAQ + James Williams
On today's two-part episode of Versus Trump, Take Care's podcast, we answer three burning questions related to whether the sitting President can face criminal charges, and how that prosecution could be started. We also have an interview with James Williams, the County Counsel for Santa Clara County, where he discusses his County's lawsuit against Trump Administration that has so far successfully prevented the Trump Administration from enforcing an executive order that would have withdrawn federal funding from so-called sanctuary cities.
The Bearable Lightness of Janus
The Supreme Court's ruling in Janus sounds like a pretty big problem for organized labor. But it doesn’t have to be.
Faith in the Ninth Circuit
An analysis of Judge Bybee's dissent from denial of rehearing en banc in Washington v. Trump, and some predictions about the future of President Trump's revised entry ban.
The Costs Of The Census Debacle
Even though the administration ultimately caved and chose not to include a citizenship question on the census, its two-week flirtation with including a citizenship question on the 2020 census had significant costs.
Updates | The Week of April 17, 2017
Advocates continue to discuss the politicization of the Supreme Court and President Trump may have nominate three new Third Circuit judges.
Updates | The Week of March 27, 2017
Niko Bowie argues on Take Care that the Supreme Court's recent warnings against appointments of "unfit characters" and "family connection" may be relevant to legally dubious Trump Administration appointments. Leah Litman and Dan Deacon explain that the judicial backlash to President Trump's revised entry ban is standard judicial practice in response to extraordinary events. And the Chief Justice of California used her State of the Judiciary Address to critique President Trump's immigration policies.
Updates | The Week of August 14, 2017
The Trump administration continues to fill the many federal judicial vacancies around the country. The presidential Twitter lawsuit raises important questions regarding the judiciary's injunctive authority.
Updates | The Week of July 10, 2017
Judge Janice Rogers Brown of the DC Circuit announced plans to step down, giving President Trump another opportunity to continue moving the federal judiciary to the right.
Updates | The Week of July 17, 2017
Transgender students are turning to the courts to fill the void left by the Department of Education under President Trump. Litigation over the immigration ban may change the scope of the plenary-power doctrine.
Updates | The Week of May 8, 2017
The relationship between President Trump and the judiciary is already different than that of previous administrations. Dark money might be affecting the judicial appointments process.
Updates | The Week of May 1, 2017
President Trump's bashing of the judiciary may only reinforce the perception that his immigration ban is unconstitutional.
Updates | The Week of March 20, 2017
Experts questioned whether Judge Neil Gorsuch would provide a robust check on President Trump if confirmed to the Supreme Court and whether Obama-era legal precedents will provide dangerous latitude to the new administration.