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Does Evil Lurk within the “Shadow Docket”?

Congress provides plenty of examples of procedures that were once rarely deployed but have since become routine: Filibusters instead of debate in the Senate, Continuing Resolutions (CRs) in place of regular annual appropriations, and playing chicken with the debt ceiling are among the most obvious. Fail-safes designed for exigent circumstances have become standard operating procedure.


First, Do No Harm

The Supreme Court, and potential reforms to it, are again in the national spotlight.  In just one term, President Donald Trump left an indelible imprint on the federal judiciary by appointing 234 judges, 54 at the appellate level and three to the Supreme Court. Stung by Justice Amy Coney Barrett’s hasty confirmation in the waning


Supreme Court Appointments: Reform or Revenge?

Justice Ruth Bader Ginsburg’s passing on September 18th reverberated throughout the nation and our institutions.  Mourners congregated at the Supreme Court immediately following the news, with Mitch McConnell’s statement that the Senate would vote on President Trump’s nominee coming just over an hour after the Supreme Court’s announcement. The prospect of Judge Amy Coney


You’ve Got Mail: Voting in a Pandemic

The pandemic has disrupted many things, including voting, the practice of democracy itself. As state primaries go by and the country gears up for November, some states are more ready for mail-in voting than others. Meanwhile, false claims have been circulated about mail-in voting having a partisan advantage (it doesn’t) or being


Supreme Avoidance

Those seeking relief from partisan gerrymandering shouldn’t bother knocking at the federal courthouse anymore. By a 5:4 majority vote along ideological lines, the Supreme Court has closed that door. At issue was North Carolina’s map to perpetuate Republicans’ 10-3 advantage in congressional districts despite just 53% of the statewide vote (Rucho v. Common Cause)


Kavanaugh’s Inevitable Confirmation

To no one’s surprise, the 176th nominee to the U.S. Supreme Court will likely soon become its 114th justice. Judge Brett Kavanaugh owes his nomination to President Donald Trump, but if confirmed, it will be thanks to former Senate Majority Leader Harry Reid (D-NV) and current Senate Majority Leader Mitch McConnell (R-KY). Lowering the cloture


Democrats’ Dilemma over the Federal Judiciary

In all likelihood, Tenth Circuit Judge Neil Gorsuch will replace the late Justice Antonin Scalia on the Supreme Court. How he gets there is the question, not whether. If confirmed, Gorsuch will be a predictably conservative voice on the nation’s highest bench just like Scalia was. It’s the next vacancy that could shift the


What Would Nino Say?

“The Constitution is pretty clear about what’s supposed to happen now. When there is a vacancy on the Supreme Court, the President of the United States is to nominate someone, the Senate is to consider that nomination, and either they disapprove of the nominee or that nominee is elevated to the Supreme Court.” – President


Judicial Relief

It’s been a very good week for the former constitutional law professor currently in the White House.  The Supreme Court has upheld insurance subsidies for Americans in federal exchanges, rejecting the claim that “established by the states” meant the subsidy would be available only to those in states that had established health care exchanges under


Appeals Court Rejects Challenge to Obama’s Deferred Action for Childhood Arrivals (DACA)

Disapproval of a governmental action isn’t sufficient to get your day in court, no matter how intense that disapproval may be.  Back in August 2012, a group of Immigration and Customs Enforcement (ICE) agents sued their boss (then-DHS Secretary Janet Napolitano) over President Obama’s decision to allow undocumented minors to stay in the U.S. rather


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