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The concurrence that was really a dissent

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The dynamics of dissent within the U.S. Supreme Court often reveal deeper complexities than a mere disagreement among justices. In cases where the majority opinion is not as clear-cut as it appears, concurring opinions can sometimes mask underlying dissent. This phenomenon was notably evident in the 2014 case of NLRB v. Noel Canning, where the implications of the ruling extended far beyond the immediate labor dispute, raising questions about the separation of powers and the role of the presidency in making recess appointments. Background of the Case In January 2012, President Barack Obama made several … Read more

Two Centuries of Declining Judicial Agreement

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The evolution of judicial agreement within the Supreme Court of the United States reflects a significant historical shift over the past two centuries. Initially, the justices exhibited a remarkable level of consensus, particularly in landmark cases that shaped American constitutional law. However, as the political landscape has transformed, so too has the nature of judicial decision-making, leading to increased polarization among the justices. This trend raises critical questions about the implications for the rule of law and the functioning of American democracy. The Historical Context of Judicial Agreement From the establishment of the Supreme Court … Read more

SCOTUS Today for Monday, December 15

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As the Supreme Court of the United States (SCOTUS) approaches the midpoint of December, legal observers are keenly interested in the developments surrounding the Court’s activities. With the Bill of Rights being ratified on this day in 1791, the significance of the Constitution’s first ten amendments remains a focal point of legal discourse. This historical context underscores the ongoing relevance of the Supreme Court’s decisions as they shape contemporary legal landscapes. Current Activities and Anticipations The Supreme Court’s December calendar currently shows no scheduled arguments or conferences after the morning’s order list release. This absence … Read more

Justice David Souter: A Former Supreme Court Employee Remembers

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When I awoke on Friday, May 9, 2025, the first thing I heard was that retired Justice David Souter had died. Of all the public figures I have met or worked with, he was in many respects, the most impressive. Even now it is hard to believe he is gone. David Souter’s Judicial Philosophy Justice Souter was known for his distinctive judicial philosophy, which embraced a common law approach to interpretation. This approach allowed for both precedent and progress in the law, a balance that characterized much of his work on the Supreme Court. He … Read more