Further evidencing an ongoing shift from more absolutist thinking about the intersection between the First Amendment’s Establishment Clause and an individual’s or group’s right of free speech, we find this morning’s unanimous decision in Shurtleff v. Boston in which the Court, reversing the First Circuit, held that the city of Boston violated the free speech clause of the First Amendment when it refused to let a group fly a Christian flag outside city hall. As Justice Breyer explained, in what will be among the last of his opinions:

Continue Reading When Government Does Not Speak, It May Not Discriminate on the Basis of Religion as to Access to a Public Facility: 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

Late in the afternoon of January 19th, the Supreme Court dealt a crippling blow to the argument of the defeated former President, when by an 8-1 majority (Thomas, J., dissenting), the Court denied Mr. Trump’s application for a stay of the mandate and injunction pending the review of the decision of the D.C. Circuit in the case of Trump v. Thompson, ordering the transmission by the Archivist of the documents sought by the House Select January 6th Committee.

Continue Reading Supreme Court Denies Trump’s Request to Block Document Review by January 6th Committee: 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.