Supreme Court roundup

  • After oral argument, case challenging agencies’ use of in-house administrative law judges (Lucia v. SEC) remains hard to predict [Ilya Shapiro, Cato; earlier]
  • In dissent from cert denial: “Justices Thomas and Gorsuch Argue for Rejecting Deference to Agency Interpretation of Agency Regulations” [Eugene Volokh, Ilya Shapiro and Matthew Larosiere on Garco Construction, Inc. v. Speer]
  • High court still gun shy [Trevor Burrus and Matthew Larosiere on refusal to review Maryland felon gun possession ban] Ninth Circuit ruling on zoning exclusion of firearms business deserves cert review [Shapiro and Larosiere on Teixeira v. Alameda County] Court denies cert in widely watched Defense Distributed First Amendment case on dissemination of plans for 3-D printed weapon [Smith Pachter, earlier] A historical look: “The American Indian foundation of American gun culture” [David Kopel]
  • “The Supreme Court’s grant of a Contracts Clause case for the first time in a quarter-century reminds me that a certain John G. Roberts wrote a student note on the Clause back in 1978 (available at 92 Harv. L. Rev. 86).” [Aditya Bamzai on Twitter]
  • University of Chicago Law Review special issue on Justice Scalia [Will Baude; other recent Scalia scholarship includes articles on his influence in implied rights of action and standing]
  • Case on cert petition before SCOTUS could clarify law on distribution of property after church schisms [Samuel Bray on Protestant Episcopal Church in the Diocese of South Carolina v. Episcopal Church]


  • In my mind there are two analogous issues when it comes to interpreting federal statutes and federal regulations.

    The president makes a decision whether or not to sign a bill–if the courts can twist the law like a pretzel, how would the president know whether to sign it or not. So far out interpretations undercut the President’s constitutional role in legislation.

    With respect to regulations, recall that they are subject to notice and comment procedures. If regulations are interpreted in ways that really push the envelope, the notice and comment requirements are undercut.

  • Ref hierarchical vs congregational church property ownership (the South Carolina case)–

    For those building up a community church, both the hierarchical approach and the congregational approach have their risks.

    A weak hierarchical authority and a mentally-disturbed pastor allowed a con man to take over an enticingly rich Swedenborgian Church in Boston Massachusetts.

    A Federal judge ruled that the national Swedenborgian church lacked authority to intervene. The dispute attracted attention from Federal authorities and the State attorney general, however, and ten years later they finally got the con man on criminal charges. church/9UsLnvPMURWImeaSd4BFpI/story.html

    Moral– Don’t let your church get too rich and tempting. If your endowment is more than needed to service a declining congregation, give some of it away in good works. (Good advice also for the Knights Templar in France around 1300 AD.)


    The Roman Catholic church has taken a strictly hierarchical approach to property ownership. That deters schism. On the other hand it has left unrelated church institutions, eg parochial schools with clean records, and cemeteries, vulnerable to seizure in clergy-sex-abuse litigation.

    I am not aware of an unrelated parochial school being shut down in these cases (the political pushback would be very strong), but at least one trust fund for cemeteries took a hit:

    “Time will pass. The graves of the odious traitors will be overgrown with weeds…”
    —-A.Ya. Vyshinsky at the 1938 Bukharin trial (Moscow)

  • I thought the English became property conscious when Fr. Paul (nee Lewis T. Wattson) lead the Episcopalian Francisan community at Graymoor, NY across the Tiber into the Catholic Church as the Franciscan Friars of the Atonement in 1909.