Scholars, lawmakers, and the public alike express an intense interest in knowing what motivates judicial decision-making. Are judges like umpires, merely calling balls and strikes, as then-Judge John Roberts claimed at his confirmation hearing? Or, are they instead motivated by ideological commitments or other biases? The dominant view is that judges are driven, at least […]
The Supreme Court’s recent decision in Trump v. Cook seeks to resolve both narrow questions about the Federal Reserve Act’s (FRA) removal protections and the broad question of Federal Reserve independence. That the Court ruled in favor of Governor Lisa Cook was largely expected, even if it came from a slimmer 5-4 majority than some […]
The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo is often described as ending Chevron deference. That description is accurate, but incomplete. The more important question is what the Court expects to happen next. Viewed through an institutional lens, Loper Bright functions as a penalty default rule. For four decades, Chevron reduced the cost […]
The Trump administration’s announcement in May of a nearly $1.8 billion “Anti-Weaponization Fund”—created (though later blocked and perhaps abandoned) as part of a settlement of President Trump’s lawsuit against the IRS—raised questions about whether the parties in the lawsuit were genuinely adverse, whether the court had jurisdiction, and what role courts have in policing potentially […]
The Supreme Court’s recent decision in FCC v. AT&T might restore agency control over initial adjudications that many thought Jarkesy to forbid. As Jeff Wall (counsel for AT&T) argued, this case lets the government “drag in through the back door what in Jarkesy said you couldn’t bring through the front.” Transcript of Oral Argument at […]
On June 4, 2026, the U.S. Supreme Court announced its decision in the consolidated cases of Federal Communications Commission (FCC) v. AT&T and Verizon v. FCC (collectively, the “Carrier Cases”). In an 8-1 decision authored by Chief Justice John Roberts, the Court held that the lack of jury involvement in the FCC’s process for issuing […]
As the Supreme Court’s latest term drew to a close, the expert consensus knew where the Court would land in Trump v. Slaughter and Trump v. Cook. Humphrey’s Executor—and with it the constitutionality of independent agencies—would be ritually slaughtered, yet Federal Reserve independence would remain alive and well. Why was this judicial miracle so utterly […]
Are we all pragmatists now? Eleven years after Justice Kagan’s famous quip, there may be a “realignment,” or, perhaps, an “alignment” between textualists and non-textualists. At least, that’s what Richard Re recently argued. In a characteristically insightful blog, Re takes note of a recent article by Alana Frederick and Judge Kevin Newsom—two card-carrying textualists. They […]
In a variety of cases, Justice Neil Gorsuch has stated that government regulation of private conduct should be difficult to adopt and to sustain in court challenges because it infringes on the liberty of the regulated actor. His writings typically frame regulatory questions as a conflict between individual liberty and overbearing government agencies. This theme […]
David Doniger is an old friend and a skilled advocate, and his account of the Clean Power Plan litigation is characteristically well written. But having been inside the federal government during this period, I have a somewhat different perspective — one that complicates the narrative that the Supreme Court’s intervention was simply a conservative majority […]
Last summer, the Department of Housing and Urban Development (HUD) received a PowerPoint presentation introducing an Artificial Intelligence (AI) tool: SweetREX, named after its creator, a third-year undergraduate in economics. Consistent with the Trump administration’s stated goal of eliminating 50 percent of all federal rules by the first anniversary of President Trump’s inauguration, Elon Musk’s […]
In Loper Bright Enterprises v. Raimondo, the Supreme Court overturned the highly deferential Chevron standard, which instructed courts to defer to agency interpretations of the statutes they administer, including on complex scientific or technical questions arising therein. Loper Bright overruled that forty-year-old landmark case, leading commentators to predict a rush of litigation challenging health-related regulations […]
Learning Resources v. Trump was a big deal. The Supreme Court held the President could not rely on an emergency statute, the International Emergency Economic Powers Act (IEEPA), to impose his universal tariffs or any tariffs at all. The Court’s rebuke of the President on the eve of the State of the Union address had […]
In Loper Bright, the Supreme Court repudiated Chevron’s across-the-board presumption that statutory ambiguities should be treated as implied delegations of discretion to agencies. But Loper Bright did not repudiate the possibility that a court might properly find implied delegation in some cases. Although Loper Bright declared that “statutes, no matter how impenetrable, do—in fact, must—have […]
The Trump administration’s fiscal year 2027 budget proposal to require that compounding pharmacies disclose prominently that their products have never been evaluated by the Food and Drug Administration (FDA) is long overdue; this is a reasonable requirement that advances consumer protection. Unfortunately, the administration couples this sensible proposal to increase transparency with a broader effort […]