It is fair, I think, to say that a substantial majority of those who heard the argument in the case of Federal Election Commission v. Ted Cruz for Senate doubted that, irrespective of whatever they might think of Ted Cruz, it was highly likely that he and his campaign organization would prevail in challenging the federal campaign finance law limitation on the use of post-election funds to repay a candidate’s personal loans as violative of the First Amendment rights of candidates who want to make expenditures on behalf of their own candidacy through personal loans. But, by a six-three division between the Court’s judicial conservatives and liberals, that is precisely what has occurred. Those who criticize the Court’s decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), likely will feel much the same way about the Cruz case.

Continue Reading Divided Court Supports Ted Cruz’s Campaign Debt Reimbursement but Denies Would-Be Citizen Chance to Correct Bureaucratic Error: SCOTUS Today

I write this from London on the eve of the announcement that the nomination of Judge Ketanji Brown Jackson to succeed Justice Breyer is about to go to the full Senate for confirmation. Those who follow my writings will know that I am among a group of right-of-center former public officials in Republican administrations who are on record as supporting this nomination of an experienced and well-qualified federal judge.

Continue Reading Two Trump Appointees Surprise Those Who Expect Conservative Lockstep: SCOTUS Today

The Court has decided the latest in a series of important cases interpreting the reach of the Federal Arbitration Act (FAA), 9 U. S. C. §§ 1 et seq.

On March 31, in Badgerow v. Walters, by an 8-1 majority (opinion written by Justice Kagan, and a lone dissent by Justice Breyer), the Court reversed an order of the Fifth Circuit and held that the federal courts do not have authority to “look through” an arbitration dispute for a federal question that would establish jurisdiction to confirm or deny an arbitral award.

Continue Reading Court Limits Federal Jurisdiction Over Arbitration Cases, Denies Certiorari in Private Non-Delegation Doctrine Case: SCOTUS Today

On a single evening, William Dale Wooden went on a spree, burglarizing 10 units in the same storage facility. The question resolved in the Supreme Court’s somewhat unanimous decision in Wooden v. United States is whether, under the Armed Career Criminal Act, 18 U. S. C. §924(e)(1) (ACCA), Wooden’s prior convictions were for offenses occurring on different “occasions,” because the burglary of each unit happened at a distinct point in time, rather than simultaneously. All of the Justices (Kagan, J., writing the definitive majority opinion) agreed that the answer is “no.” Convictions arising from a single criminal episode can only count once under ACCA.

Continue Reading Court Rules That Crime Spree Involving 10 Burglaries in Same Evening Counts as Single “Occasion” Under Armed Career Criminal Act: SCOTUS Today

The Supreme Court decided two more cases today, one unanimously, the other anything but so.

Yesterday, in United States v. Zubaydah, the Court upheld the government’s assertion of the state secrets privilege, rejecting an al Qaeda terrorist leader’s discovery request for information concerning his torture by the CIA. The Court continued its interest in the privilege in today’s unanimous opinion, authored by Justice Alito, in Federal Bureau of Investigation v. Fazaga.

Continue Reading Court Holds That FISA Doesn’t Trump the State Secrets Privilege and Restores the Capital Murder Conviction of the Boston Marathon Bomber: SCOTUS Today

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Court Favors Judicial Review in Railroad Benefits Case, Remands Two Cases Concerning Nazi-Era Looted Property.

The following is an excerpt:

The Supreme Court decided three cases Wednesday, two of them related.