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SCOTUStoday for Friday, February 6
You’re running out of time to take advantage of the preorder offer for Last Branch Standing, Sarah Isgur’s new book, set to be released in April. Last Branch Standing is a fun, myth-busting walk through the Supreme Court, showing how it is somehow both the Founding Fathers’ “third wheel” — and the only branch of government they would be likely to recognize today. Sarah will send a signed bookplate to anyone who preorders the book before Monday, Feb. 9. To claim your bookplate, visit prh.com/lastbranchbookplate.
SCOTUS Quick Hits
The court could rule at any time on an interim docket case on California’s policies for parental notification when public school students choose to use different names or pronouns.
Former Justice Anthony Kennedy is expected to deliver a lecture in Palm Beach, Florida, this afternoon related to his memoir, Life, Law & Liberty.
The court has not yet indicated when it will next release opinions. If the court follows its typical pattern, the earliest the next opinion day may be is Friday, Feb. 20, when the justices are next scheduled to be in the courtroom.
The court will next hear arguments on Monday, Feb. 23, the first day of its February sitting.
Morning Reads
New Marquette Law School national survey finds 63% say U.S. Supreme Court should limit Trump’s tariff authority (Marquette Today) — A new national survey from Marquette Law School found that most Americans hope the Supreme Court will rule against the Trump administration in two of this term’s most closely followed cases. Specifically, 63% of U.S. adults think the court “should uphold a lower court ruling that limits the president’s authority to impose tariffs,” and 64% say the court should hold that the president does not have the power to remove Federal Reserve governors. The survey also showed that “[m]ore than half, 57%, of those polled say the Court is going out of its way to avoid ruling against Trump, while 43% say the Court is not doing so. Among Republicans, 34% think the Court is avoiding ruling against Trump, as do 59% of independents and 78% of Democrats.” And according to the survey, “[a]pproval of the U.S. Supreme Court’s handling of its job has fallen from 50% in September to 44% in January.”
If you want to win over Supreme Court justices, quote Antonin Scalia (Joan Biskupic, CNN) — Nearly 10 years after Justice Antonin Scalia’s sudden death at age 79, CNN has considered his legal legacy, emphasizing the rise of originalism and the many times that Scalia’s name is invoked in the courtroom today. “Rarely does a lawyer come before the court without some argument related to an originalist reading of the Constitution, or, if the dispute tests how to interpret a federal statute, come without references to Scalia’s other signature approach, textualism. Scalia believed judges should construe statutes based on their text – the precise words – rather than by relying on contemporaneous congressional committee reports, floor statements and other items of legislative history,” according to CNN. “Hardly a week goes by when Scalia isn’t cited by one of the justices in some form.”
‘A transformative time’: Both parties brace for dramatic campaign fundraising change ahead of the midterms (Elena Schneider and Andrew Howard, Politico)(Paywall) — As the Supreme Court weighs in National Republican Senatorial Committee v. Federal Election Commission whether to strike down limits on the amount of money that political parties can spend in coordination with a candidate for office, the Republican and Democratic “parties are preparing for a potential earthquake in how the battle for Congress is waged,” according to Politico. “The court’s pending decision could open the floodgates to even more campaign ads from the national parties and extend the timeline of campaign advertising much earlier into the summer.” In anticipation of that outcome and others, “Republicans and Democrats alike are prepping multiple contingency plans,” even as they accept that a “June or July ruling could stymie efforts to capitalize fully on any potential changes in time for this year’s elections.”
Oklahoma Board Expected to Deny Bid for Jewish Charter School, Invite Lawsuit (Linda Jacobson, The 74) — The Oklahoma Statewide Charter School Board is expected to soon “deny an application for a Jewish charter school,” a move that will likely launch a new legal battle over the constitutionality of religious charter schools, according to The 74, a nonprofit news outlet that covers education issues. That issue was in front of the Supreme Court last term, when the justices deadlocked over a Catholic charter school in Oklahoma, leaving an Oklahoma Supreme Court ruling against the school in place. “With a case over a proposed Christian charter in Tennessee already in federal court and another religious school in Colorado founded to test the same legal question, there’s little doubt that the nation’s highest court will eventually settle the debate.”
Sen. Blackburn demands probe of Ketanji Brown Jackson for attending politically charged Grammys (Ryan King, New York Post) — Sen. Marsha Blackburn, a Republican from Tennessee, has “urged Chief Justice John Roberts to launch an investigation into liberal Justice Ketanji Brown Jackson over her attendance at the Grammy Awards on Sunday,” according to the New York Post. Jackson was there because she was nominated for the award for audiobook narration, “but Blackburn raised impartiality concerns due to anti-ICE jokes during the politically charged award show.” “While it is by no means unheard of or unusual for a Supreme Court justice to attend a public function, very rarely—if ever—have justices of our nation’s highest Court been present at an event at which attendees have amplified such far-left rhetoric,” Blackburn wrote in her letter to Roberts.
A Closer Look: Chief Justice Roger Taney
Before, during, and after his term as chief justice, Chief Justice John Marshall’s successor commanded attention – though rarely for the right reasons.
Roger B. Taney was born in Calvert County, Maryland, in 1777. His father, Michael Taney, was a tobacco plantation owner who served as a lieutenant within the Maryland state militia. Roger Taney attended Dickinson College at 15, and after his graduation studied law under a judge of the General Court of Maryland. Several years after being admitted to the bar, Taney married the sister of his longtime friend, Francis Scott Key. He and Anne Key had six daughters together.
Along with his law practice, Taney was a prominent politician. He served multiple terms in the Maryland House of Delegates as a member of the Federalist party and led a section of the Federalists that supported the War of 1812. After moving to Baltimore, Taney was made the attorney general of Maryland in 1827 – and staunchly supported (and campaigned for) both President Andrew Jackson and the Democratic Party, leading Jackson to appoint Taney as U.S. attorney general in 1831. For a short period of time, Taney simultaneously acted as the Secretary of War.
Taney, like Jackson, criticized the Second National Bank – and after Jackson nominated him for Treasury Secretary in 1833, Taney helped to cripple the institution, requiring that funds be withdrawn from the bank and thereby “sealing [its] fate.”
Jackson nominated Taney as the fifth chief justice in 1836 (and the first Catholic to serve on the court), just 10 months after the Senate had rejected him to replace Justice Gabriel Duvall. This made Taney the first cabinet nominee ever to be rejected by the Senate, which then took three months to approve his appointment as chief justice. Speaking about the fifth chief justice, a New York journal wrote: “The pure ermine of the Supreme Court is sullied by the appointment of that political hack, Roger B. Taney.”
Today, Taney’s notoriety comes from his 1857 decision in Dred Scott v. Sanford, where he ruled that 1) Scott, an enslaved man who spent time in free territory, was not free; 2) African Americans, whether enslaved or free, were not and could not be citizens; and 3) the Missouri Compromise – which banned slavery in certain territories – was unconstitutional. As such, African Americans were not guaranteed protection or rights under the Constitution. During the Dred Scott arguments, one newspaper commented that “[t]he Court, in trying this case, is itself on trial.” (Five of the seven justices came from slave-holding families, although Taney himself had freed the slaves that he inherited.) The decision intensified the abolition movement and aggravated tensions between the states and the federal government, culminating in the Civil War.
Dred Scott was not Taney’s only notable decision. Twenty years before, Taney issued the opinion in Charles River Bridge v. Warren Bridge, which helped shape certain aspects of U.S. contract law. He also issued a series of decisions which formed the basis of the “police power,” or the ability of states to pass laws for the general welfare of their citizenry.
The end of Taney’s career on the court was a contentious one (to put it mildly). President Abraham Lincoln viewed Taney as an enemy after he challenged the president’s authority to order emergency actions (namely, the suspension of habeas corpus to detain Confederate sympathizers) during the Civil War. Lincoln would go on to dispute one of Taney’s decisions, Ex Parte Merryman, in which Taney (sitting as a judge on the U.S. Circuit Court for the District of Maryland) ordered that John Merryman, who was accused of “advanc[ing] secession doctrines,” be brought to court. The military refused, and in 1861 Taney wrote that only Congress, not the president, had the power to suspend habeas corpus, under Article I, Section 9 of the Constitution. After Merryman, Lincoln received approval from Congress to suspend the writ when “the public Safety may require it.”
Taney stayed on the court until his death in October 1864, making him, at the time, the second-longest serving chief justice (to Marshall) at 28 years. Ironically, within a month of his death, his home state of Maryland abolished slavery.
In the wake of the 2015 church shootings in Charleston, lawmakers in Frederick, Maryland reassessed pro-Confederate iconography, including a bust of Taney that sat at the city hall’s entrance. The city ultimately decided to remove the bust – along with an interpretive plaque about the Dred Scott case – in 2017, following years of controversy. The U.S. House of Representatives likewise removed his bust from the Capitol in 2023. One of his very descendants joined the 2021 effort to rename Taney Street in Philadelphia. In 2024, the street was renamed to LeCount Street in a nod to Philly civil rights activist Caroline LeCount.
SCOTUS Quote
JUSTICE SOTOMAYOR: “And absent probable cause, there’s no right to search. So why are we here?”
MR. LOEB: “We agree 100 percent on that, Your Honor.”
JUSTICE GINSBURG: “You’re here because you lost below.”
— Byrd v. United States
On Site
Contributor Corner
In birthright citizenship fight, Justice Department selectively interprets the original meaning of the citizenship clause
In his latest Immigration Matters column, César Cuauhtémoc García Hernández analyzed the Trump administration’s arguments for why the president should be allowed to narrow the application of the 14th Amendment’s citizenship clause, which states that all “persons born … in the United States, and subject to the jurisdiction thereof,” are U.S. citizens. The administration, he contends, is plucking “phrases that it favors while ignoring the political movement to dramatically expand citizenship in which the 14th Amendment was added to the Constitution.”
When the Supreme Court abets lawlessness
In her latest Cases and Controversies column, Carolyn Shapiro reflected on the behavior of federal Department of Homeland Security agents and the role the Supreme Court played in complicating efforts to hold such agents accountable for wrongdoing. “[T]he Supreme Court has, over decades, made it increasingly difficult – sometimes impossible – to enforce or vindicate constitutional rights and to redress, much less stop, widespread and systemic governmental lawlessness of the sort we are now seeing,” she wrote.
The post SCOTUStoday for Friday, February 6 appeared first on SCOTUSblog.
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