Capitol Comments

For the last 50 years the Supreme Court has leaned right. But there has always been an unreliable conservative “swing” Justice at the center of the Court. First, Justice Powell, then Justice O’Connor, next Justice Kennedy, and most recently (and very briefly) Chief Justice Roberts.

If Judge Amy Coney Barrett is confirmed the Court is likely to have five reliable conservative votes in the big, controversial cases (Thomas, Alito, Gorsuch, Kavanaugh, and Coney Barrett). Chief Justice Roberts’ vote will no longer matter, and...

Unless something surprising happens, Judge Amy Coney Barrett is expected to take the bench before the Supreme Court hears the most recent challenge to the constitutionality of the Affordable Care Act on November 10. But before she is confirmed the Court will hear 10 cases in its October siting with only eight Justices on the bench.

At least four of those cases are of interest to states and local governments. The State and Local Legal Center (SLLC)...

History will remember Justice Ginsburg as a glass ceiling smasher, a feminist, a liberal, a dissenter, and an icon. States and local governments will also remember something subtler about her which was more visible in the Court’s lower profile cases. And that was her pragmatism.

Perhaps the most important case for states and local governments where Justice Ginsburg demonstrated this quality is South Dakota v. Wayfair. She was the sole liberal...

President Trump’s memoranda on anarchist cities, while generating significant criticism, does not take federal money away—yet. If the federal government actually tries to do so, affected jurisdictions will...

Since April 2020 the Supreme Court has handled numerous emergency requests related to COVID-19. Requests involving stay-at-home orders and judge-made changes to elections laws are of most interest to states and local governments. The trends in both categories of cases is clear but the reasons are murky. Oftentimes none of the Justices announce, much less explain, their vote.

In these emergency requests the challenger isn’t asking the Supreme Court to decide the case on the merits. Instead, it is either asking the Supreme...

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