There has been a good deal of recent attention given to the Supreme Court’s so-called “shadow docket,” a term that refers generally to the Court’s (conservative majority’s) issuing brief orders and unsigned opinions resolving procedural motions in a way that effectively disposes of cases, but without their having been fully briefed and argued.

Continue Reading Are the Shadows Lifting?: 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

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 Court has decided two important cases today, United States v. Zubaydah, upholding the government’s assertion of the state secrets privilege and rejecting the al Qaeda terrorist leader’s discovery request for information concerning his torture by the CIA, and Cameron v. EMW Women’s Surgical Center, P.S.C., allowing the intervention of the Kentucky attorney general to assume the defense of the state’s abortion law after the official who had been defending the law decided not to seek further review. Both cases are, at root, about significant issues of public interest and policy—the torture of terrorists and restrictive abortion policies—but neither opinion resolves any such question. Indeed, the lessons learned from each of these cases are essentially procedural, and though the outcomes are determined by significant margins, the alliances of Justices on the multiple opinions published are also instructive.

Continue Reading Broad Majority Decisions in Terrorist Torture and Abortion Law Cases Resolve Important State Secrets and Intervention Procedural Issues: SCOTUS Today