Chief Justice John Roberts is a complex and subtly innovative jurist. The Supreme Court’s census decision revealed his skills, particularly seen against the backdrop of the gerrymandering case decided the same day. His ruling against the executive may actually strengthen deference to executive discretion when wielded by a future normal presidency, but in his decisive opinion (joined in full by no other justice), Roberts also refined a neglected counterdeference tool—pretext analysis.
Latest in U.S. Supreme Court
The Supreme Court’s March 19 decision on in Nielsen v. Preap rejected challenges to mandatory detention of certain noncitizens—“aliens” under the Immigration and Nationality Act (INA). Generally speaking, mandatory immigration detention is an exception to the rule that confinement requires an individualized showing of flight risk or dangerousness.
On Feb. 27, the Supreme Court issued a 7-1 opinion in Jam v. International Financial Corporation, deciding that international organizations have the same level of immunity from lawsuits granted to foreign governments.
The unnamed foreign corporation challenging a subpoena issued by Special Counsel Robert Mueller filed a cert petition seeking Supreme Court review of the D.C. Circuit's decision in favor of Mueller. The petition is available in partially redacted form below.
On Tuesday, the Supreme Court on 5-4 decisions granted two stays of district court injunctions in Trump v. Karnoski and Trump v. Stockman, two cases challenging the Trump administration's ban on military service by transgender people. The orders are below.
18A625 TRUMP, PRESIDENT OF U.S., ET AL. V. KARNOSKI, RYAN, ET AL.
In August, two convicted terrorists were released from prison unexpectedly early. The two originally received enhanced sentences under a statute that established mandatory minimum sentence extensions for the use of a firearm in conjunction with a violent felony, but the judge who released them held that the statute was unconstitutional under Sessions v. Dimaya, a case the Supreme Court decided in April.
Last June in a 5-4 ruling in Carpenter v. United States, the Supreme Court extended Fourth Amendment protections to an individual’s cell phone location data for the first time.
Mandatory immigration detention is an exception to the rule that confinement requires an individualized showing of flight risk or dangerousness. In 2016, the U.S. Court of Appeals for the Ninth Circuit narrowed the scope of mandatory detention, ruling that some noncitizens—“aliens” under the Immigration and Nationality Act (INA)—could show that they were not flight risks or dangerous and therefore should be released pending an immigration court hearing on the merits of their removal.
During the fourth day of hearings on Judge Brett Kavanaugh's nomination to the Supreme Court, two experts testified on matters that may be of interest to Lawfare readers. Rebecca Ingber, associate professor at Boston University School of Law and contributing editor for Lawfare, testified about Judge Kavanaugh's approaches to executive deference on national security matters and to international law.
This week, we explore the iconic 1952 decision of the Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer, better known as the “Steel Seizure Case.” It’s an all-time classic regarding the separation of powers in general and war-related powers in particular (not to mention constitutional interpretive method, theories of emergency power, and more). In this deep dive, we: