Thread by @PhilipMiles

Day 1: #SCOTUS100 Chisolm v. Georgia - Allowing federal lawsuits against states turns out to be unpopular... among states. 11th Amendment incoming.

Day 2: #SCOTUS100 Marbury v. Madison - CJ Marshall was the one who botched the delivery of the commission in the first place. Judicial review is popular... in the judiciary.

Day 3: #SCOTUS100 McCulloch v. Maryland - The national bank was "necessary" if we assume "necessary" is just another word for "convenient" [Thesaurus citation needed].

Day 4: #SCOTUS100 Gibbons v. Ogden - "Commerce" is "intercourse" - I'd call this a pretty broad interpretation of the Commerce Clause... if I'd never read Wickard or Raich.

Day 5: #SCOTUS100 Barron v. Baltimore - The Takings Clause (really the whole Bill of Rights) does not apply to the states. Rev'd by 14th Am. Today, states can still take homes for a feral cat sanctuary. See, Kelo v. New London.

Day 6: #SCOTUS100 Prigg v. PA - There’s a federal Fugitive Slave Act, and suddenly the south is not so pro-states’ rights.

Day 7: #SCOTUS100 U.S. v. Dewitt - *intrastate* oil sales are not *interstate* commerce. Imagine that. Nobody argued that the aggregate effects of everyone selling oil in-state would substantially affect interstate commerce, I guess.

Day 8: #SCOTUS100 Hepburn v. Griswold - Congressional creation of paper legal tender (not gold or silver) was unconstitutional - reversed a year later. Fun note from book: Chief Justice Chase appeared on $1 bill (pre-CJ days) before striking down law.

Day 9: #SCOTUS100 Knox v Lee - remember that case we decided just last year? Overruled. I guess stare decisis hadn’t become popular yet.

Day 10: #SCOTUS100 U.S. v. E.C. Knight - The Commerce Clause does not cover the manufacturing of sugar because "commerce" is what happens *after* something is manufactured.

Day 11: #SCOTUS100 Champion v. Ames - Congress could ban the interstate shipment of lottery tickets under the Commerce Clause . . . because lottery tickets are the devil. Well, that, and the power to "regulate" includes the power to prohibit some commerce.

Day 12: #SCOTUS100 Hammer v. Dagenhart - Congress could not regulate local production by banning interstate shipment of products manufactured by children. Contrary to popular myth, did not find a right to child labor (in fact states did regulate child labor at the time).

Day 13: #SCOTUS100 Schechter Poultry v US - Regulation of local activities w/only indirect affects on interstate commerce is unconstitutional (bc we’d have “no limit” to Fed power, a “completely centralized government”) SCOTUS abandons this 2 yrs later (draw your own conclusions)

Day 14: #SCOTUS100 NLRB v J&L Steel - suddenly local production is interstate commerce, and we’re on our way to the substantial effects test. Just about everything except gun possession, violence, and health insurance mandates is interstate commerce now.

Day 15: #SCOTUS100 U.S. v. Darby - The substantial effects test is clearly here, SCOTUS upholds a now old and antiquated wage and hour law (FLSA) . . . which we still use because nobody has come up with anything better in the last 85 years.

Day 16: #SCOTUS100 Wickard v. Filburn - Growing wheat locally for self-consumption (i.e. the wheat is never in commerce and never crosses state lines) - yeah, that's interstate commerce too.

Day 17: #SCOTUS100 Heart of Atlanta Motel v. U.S. - Losing side argued that Interstate Commerce Clause did not give Congress the power to desegregate a hotel. I mean, did you read Wickard v. Filburn?

Day 18: #SCOTUS100 Katzenbach v. McClung - Yes, the Commerce Clause covers your bbq joint too. Like, seriously, Wickard was "game over."

Day 19: #SCOTUS100 US v Lopez - rather than just point out how ridiculous Commerce Clause jurisprudence had become, the majority implements a (mostly) arbitrary economic/noneconomic activity distinction.

Day 20: #SCOTUS100 US v Morrison - SCOTUS holds that intrastate assault is not interstate commerce... 5-4.

Day 21: #SCOTUS100 Gonzales v. Raich - Growing a plant in your house and consuming it is still covered by the Commerce Clause. The Court relied in part on the dictionary definition of "economic" - presumably did not consult a dictionary for the definition of "commerce."

Day 22: #SCOTUS100 NFIB v Sebelius - U.S. gov't can't just mandate people purchase things - that would be tyranny! Of course, U.S. gov't can just make people pay fines ("taxes") until they do what they're told. Totally different. Totally constitutional.

Day 23: #SCOTUS100 NY v US - Congress can't just tell states what to do with radioactive waste. Congress can, of course, just take a bunch of money from the states through taxes and hold it hostage until the states do what they're told. Totally different. Totally constitutional.

Day 24: #SCOTUS100 Printz v US - Congress can't commandeer state employees (law enforcement officers, in this case) either.

Day 25: #SCOTUS100 Hans v LA - 11th Am provides for sovereign immunity for lawsuits from citizens of "another state", but presumably they meant the same state as well. Mind boggling that something as important as *an amendment to the Constitution* could be so poorly drafted.

Day 26: #SCOTUS100 Seminole Tribe v. Florida - the Commerce Clause can do just about anything... except abrogate the inferred fed q state sovereign immunity inferred into (but nowhere actually appearing in) the 11th Am.

Day 27: #SCOTUS100 City of Boerne v. Flores - Look, if the Supreme Court is not gonna protect religious freedom, then neither can Congress (at least against state infringement).

Day 28: #SCOTUS100 U.S. v. Morrison - 14th Am gives Congress the power to regulate state actors, not private offenders. (already covered Morrison on Commerce Clause - does this count as a second case? Guess we'll find out when/if I hit Day 101).

Day 29: #SCOTUS100 Univ. of Alabama v. Garrett - 11th Am shields states from monetary liability under the ADA. Imagine how different this area of the law would be if state sovereign immunity were in the initial body of the Constitution (or after the 14th Am).

Day 30: #SCOTUS100 NV Dept of Human Resources v Hibbs - FMLA abrogates state sovereign immunity... as we see later, not *all* FMLA cases (not the self care provision).

Day 31: #SCOTUS100 Ex Parte Merryman - President’s unilateral suspension of habeas corpus was unconstitutional, cementing Justice Taney’s legacy as a stalwart defender of individual liberty. /sarc

Day 32: #SCOTUS100 Youngstown Sheet & Tube v Sawyer - Can the President seize steel mills? Well, ya see, it depends on the ebbs and the zones, and, uh... 🤷🏻‍♂️... no, I guess?

Day 33: #SCOTUS100 Korematsu v US - President can unilaterally decide where Japanese people must be. No need for due process, liberty, or equal protection. Hard to justify under any theory of interpretation.

Day 34: #SCOTUS100 Morrison v Olson - This wolf comes as a wolf. I took a course with Scalia, who seemed quite proud of his dissent. Majority concludes independent counsel is somehow constitutional as an inferior officer of an executive that it is expressly independent from.

Day 35: #SCOTUS100 NLRB v Noel Canning - Prez cannot make recess appointments, when Senate is not in recess (duh). Muddied by questionable line drawing ("the recess"=a recess; "vacancies that may happen during the recess"=vacancies that may happen during *or before* a recess)

Day 36: #SCOTUS100 Dred Scott v Sandford - I’ve been pretty critical of the Court thus far, but sometimes they really get it right. This is not such a case.

Day 37: #SCOTUS100 Slaughter-House Cases - What does the Privileges or Immunities clause mean? Meh, not much. After the Civil War we wanted to protect the rights of every citizen to... access seaports and use navigable rivers? 🤔

Day 38: #SCOTUS100 Bradwell v Illinois - Woman argued P or I Clause protected her right to bar admission. Take the 5 misguided votes from Slaughter-House and add 3 votes from Justices who thought women were unfit to practice law... and she loses 8-1.

Day 39: #SCOTUS100 US v Cruikshank- Let’s just white out (pun totally intended) the 14th Am Privileges or Immunities Clause altogether.

Day 40: #SCOTUS100 Strauder v WV - 14th Am s5 gives Congress the power to allow removal to Fed Court where black man subjected to whites only jury for criminal trial.

Day 41: #SCOTUS100 Civil Rights Cases - Neither the 13th nor 14th Am grants Congress the power to ban discrimination by non-state actors. Maybe try again under the Commerce Clause in a century?

Day 42: SCOTUS100 Yick Wo v Hopkins - The laundry licensing requirements were just an excuse to discriminate against the politically powerless and provide economic protectionism for the favored class!?!? I’m shocked!! (presumably @senatorshoshana’s favorite case)

Day 43: #SCOTUS100 Plessy v Ferguson - Pretty sure Plessy v Ferguson is the Dred Scott of Korematsus. (separate but equally awful cases)

Day 44: #SCOTUS100 Lochner v NY - Unpopular opinion daring to place the burden on government to justify limitations on the freedom of employers and employees to agree on the terms and conditions of their own employment relationship.

Day 45: #SCOTUS100 Muller v OR - maximum hours law for female workers is constitutional because men have to take care of women and their important baby-making functions (I’m not making this up).

Day 46: #SCOTUS100 Buchanan v Warley - Real estate sale segregation laws were unconstitutional (not an equal protection case, see Plessy v Ferguson) but based on right to sell property under the Due Process clause.

Day 47: #SCOTUS100 Adkins v Children’s Hosp. - Striking down women-only minimum wage. Whatever one’s views on liberty of contract, Court was correct to hold that women are entitled to the same liberty as men.

Day 48: #SCOTUS100 Meyer v NE - Thanks to the activist Lochner Era court, people can just go around teaching German any time they want! Decisions about occupations, learning, and parenting should be left to the police power of states - not teachers, parents, and children. /sarc

Day 49: #SCOTUS100 Pierce v Soc of Sisters - More 14th Am liberty of parenting, with some corporate property rights in the business of education mixed in.

Day 50: #SCOTUS100 Buck v Bell - I mean, I guess technically there’s no express right to be free from forced sterilization and eugenics in the Constitution... 🙄

Day 51: #SCOTUS100 O’Gorman & Young v Hartford Fire Ins Co - Tied 4-4, the case was reargued after confirmation of Justice O. Roberts. Upheld state limit on insurance sales commissions, 5-4.

Day 52: #SCOTUS100 Nebbia v NY - one of many death knells for economic liberty, upholding the brilliant policy of fixing milk prices artificially high during the Great Depression.

Day 53: #SCOTUS100 West Coast Hotel v Parrish - a discriminatory women-only minimum wage law was upheld as constitutional because economic liberty was dead and equal protection (at least for women) was not yet born.

Day 54: #SCOTUS100 US v Caroline Products - Filled milk ban was constitutional.

FN4: SCOTUS is only interested in protecting specifically enumerated rights... 9th Am? Never heard of it.

Day 55: #SCOTUS100 Williamson v Lee Optical - And, now we have rational basis review. An odd name given that the justification for a law need not be rational or the actual basis for the law; and, such deference can barely be called “review.”

Day 56: #SCOTUS100 Brown v Bd of Ed - It turns out that racially segregated schools were separate *and* unequal... who knew?

Day 57: #SCOTUS100 Bolling v Sharpe - Can DC schools segregate based on race?

SCOTUS: We literally just said in Brown v. Bd that it violates the equal protection clause.

But these are DC schools, and the 5th Am doesn't have an EP clause...

SCOTUS: Whatevs, same diff.

Day 58: #SCOTUS100 Cooper v Aaron - No, seriously, hurry up and desegregate the damn schools. Here, the 101st Airborne can help you.

Day 59: #SCOTUS100 Loving v VA - C’mon, their name was really Loving? Anyway, “separate but equal” doesn’t work for marriage either - law banning interracial marriages was unconstitutional.

Day 60: #SCOTUS100 Regents of U Cal v. Bakke - In a 4-1-4 decision: Race can be *a* factor to promote a diverse student body, but it cannot be *the* factor in college admissions.

Oh, ya mean that didn't clearly resolve the issue for all of time?

Day 61: #SCOTUS100 Gratz v Bollinger - Okay, we said race could be *a* factor in college admissions... but, we didn't mean the single largest factor.

Much like their football team under Jim Harbaugh, Michigan loses.

Day 62: #SCOTUS100 Grutter v Bollinger - Okay, race can be a factor, if it is used to help attain a “critical mass” of underrepresented populations.

Day 63: #SCOTUS100 Fisher v U Texas I - Radical idea... under strict scrutiny, the court must actually scrutinize the justification for an affirmative action policy, and not just afford the defendant “deference” to effectively decide its own case.

Day 64: #SCOTUS100 Fisher v U Texas II - just kidding on that deference issue... just take their word for it.

Day 65: #SCOTUS100 Frontiero v Richardson - Argued by RBG, plurality (not majority) holds that sex-based distinctions (here, military spousal benefits) require strict scrutiny.

Day 66: #SCOTUS100 Craig v Boren - Introducing “intermediate scrutiny” for equal protection challenges based on sex. Unconstitutional to deny men an equal right to purchase light beer.

Day 67: #SCOTUS100 US v VA - the 14th Amendment’s Equal Protection Clause gives women the right to enjoy the spartan barracks of VMI.

Day 68: #SCOTUS100 City of Cleburne v Cleburne Living Center - Somehow people with intellectual disabilities do not receive “suspect class” protection, but their group home is saved by a version of the rational basis test that actually requires a rational basis (😱)!

Day 69: #SCOTUS100 Romer v Evans - State can’t ban local LGB anti discrimination laws. Justice Kennedy applies a difficult to identify legal framework utilizing a difficult to identify test (something kinda rational basis-ish).

Day 70: #SCOTUS100 Griswold v CT - Economic liberty is just a made-up thing that does not appear anywhere in the Constitution . . . unlike the right to use contraceptives, which you can spot right there in the "penumbras, formed by emanations" from the Bill of Rights.

Day 71: #SCOTUS100 Roe v Wade - I have no thoughts or opinions on this case whatsoever (look, I’m probably not gonna get nominated to the Supreme Court... but ya never know, so why risk it?).

Day 72: #SCOTUS100 Planned Parenthood v Casey - It’s important for the Court to stand by its precedent... just after it has completely rewritten the precedent to say what the current plurality wished it had said.

Day 73: #SCOTUS100 Whole Woman's Health v. Hellerstedt - "undue burden" test (which apparently only applies to abortion cases) applied to TX law requiring admitting privileges for docs and surgical facilities standards - result: unconstitutional.

Day 74: #SCOTUS100 Lawrence v TX - Look, the Court is not going to protect made-up rights like "economic liberty" that do not appear anywhere in the Constitution... but we'll be damned if we're gonna allow states to deny the right of every adult to enjoy anal sex!

Day 75: #SCOTUS100 US v Windsor - DOMA is unconstitutional. Another important gay rights opinion from J Kennedy. Once again though, fails to utilize the recognized legal frameworks for such challenges. Frustrating for those of us looking for a coherent web of “Con Law.”

Day 76: #SCOTUS100 Obergefell v Hodges - Recognizing a fundamental right to same-sex marriage. So, that whole “deeply rooted in this Nation’s history” requirement from Glucksberg is dead now, or what?

Day 77: #SCOTUS100 Sedition Act (no SCOTUS decision, maybe doesn't count as a day?) - anyway, Federalist Party passes Sedition Act to criminally prosecute Republicans, and it's upheld by party-line judges. Obviously violates 1A, ruled unconstitutional by the "court of history."

Day 78: #SCOTUS100 Schenck v US - Unanimous court upholds conviction for urging people to resist the draft during WW1. First Amendment ain’t what it used to be (and that’s a good thing). #1A

[Obligatory #FireInaTheatre shoutout to @Popehat]

Day 79: #SCOTUS100 Debs v US - Apparently dissent was not so patriotic (or First Amendment-protected) during WW1.

Day 80: #SCOTUS100 Abrams v US - Leaflets urging factory workers who made war munitions to go on strike? No First Amendment protection for you! Conviction affirmed.

Justice Holmes (dissenting) finally gets one right.

Day 81: #SCOTUS100 Gitlow v People of the State of NY - 1st Am freedom of speech applies to the states via the 14th Am Due Process Clause - I mean, it doesn't protect distribution of Socialist literature, but still . . . .

Day 82: #SCOTUS100 Stromberg v CA - Fiiine, we’ll hold that the liberty guaranteed by the 14th Am protects waving your commie anarchist Soviet-looking flag in 1931.

Day 83: #SCOTUS100 US v O’Brien - Ban on burning Vietnam draft cards was constitutional. Served an important govt interest (tracking draft info in a time before computers were mainstream). Did not seek to suppress dissent (which was allowed in just about any other manner).

Day 84: #SCOTUS100 TX v Johnson Burning the US flag is constitutionally protected expressive conduct under the First Amendment - paving the way for “Try burning this one, a**hole” flag t-shirts.

Day 85: #SCOTUS100 RAV v City of St Paul - Banning the burning of crosses (or other expressive conduct that angers) is unconstitutional under the 1st Am. City had content-neutral means of addressing it (e.g., trespassing laws) without "adding the First Amendment to the fire."

Day 86: #SCOTUS100 Buckley v Valeo - fun with #1A and campaign finance! Cap on direct campaign contributions, good. Cap on independent expenditures, bad.

Day 87: #SCOTUS100 McConnell v FEC - #SCOTUS upholds large parts of John McCain's incumbent-protection legislation ("McCain-Feingold") . . . [in ominous voice] "for noooowwww . . . . muahahaha . . . . "

Day 88: #SCOTUS100 Citizens United v FEC - Congress can’t ban movies that are critical of politicians up for election... even if they’re funded by corporations. Disclosure requirements are (qualified) cool though.

Day 89: #SCOTUS100 New York Times Co v Sullivan - Defamation of public figures requires actual malice... thus protecting NYT’s long-standing tradition of negligently publishing false information.

Weird, nobody questioned this corporation’s right to 1A free speech protections 🤔

Day 90 #SCOTUS100 Snyder v Phelps - First Amendment so broad it even protects picketing a soldier’s funeral with hateful homophobic signs.

Day 91 #SCOTUS100 US v Stevens - Struck down overbroad video animal cruelty statute, ducked "as applied" issue of banning "crush videos" (torturing and killing helpless animals).

Day 92: #SCOTUS100 Brown v Entertainment Merchants Assn - Can you imagine kids growing up without Mortal Kombat? 1A protects violent video games.

Justice Scalia wins. Fatality.

Day 93: #SCOTUS100 Sherbert v Verner - State can't make people work on the Sabbath as a condition of unemployment compensation benefits.

Day 94: #SCOTUS100 Employment Division v Smith - Laws of general applicability override an individual's religious liberty (here, sacramental peyote consumption). So unpopular that a bipartisan majority passed RFRA.

Day 95: #SCOTUS100 Church of the Lukumi Babalu Aye v City of Hialeah -
I don’t practice Santeria. I ain’t got no crystal ball.

But city cannot target one group’s... ri-tu-als.

Day 96: #SCOTUS100 Burwell v Hobby Lobby - Obamacare contraceptive mandate cannot be applied to religious corp Hobby Lobby under RFRA.

Not sure this is a #ConLaw case @JoshMBlackman and @RandyEBarnett.

Day 97: #SCOTUS100 McCreary Cty v ACLU of KY - Whether a Ten Commandments display is constitutional will depend on the Justices successfully reading the minds of those who displayed them.

J. Breyer has determined that this County’s mind wanted them for unconstitutional reasons.

Day 98: #SCOTUS100 Van Orden v Perry - J. Breyer switches sides because he finds this particular Ten Commandments display less controversial.

Not really my area of the law, but I'm not sure a "however J. Breyer feels about it" test is going to be practical in the long-run.

Day 99: #SCOTUS100 DC v Heller - In a controversial 5-4 decision, the Court held that people have a right to keep arms, based on the 2nd Am. language . . . "the right of the people to keep and bear arms."

Day 100: #SCOTUS100 McDonald v City of Chicago - 14th Am Due Process Clause incorporates the 2nd Am right to keep and bear arms.

Justice Thomas had the privilege of writing a solo concurring opinion. Get it? "Privilege"? Ayyooo.

Day 101: #SCOTUS100 PA Coal Co v Mahon - Law prohibiting coal mining under residences was a "taking" because it so greatly harmed the coal company's mineral rights.

Guess you could say this regulatory taking really under-*mined* the 5th Am, eh? Ayyooo.

Day 102: #SCOTUS100 Penn Central Transp Co v. NY - NYC can destroy the value of the property rights above the building (by banning owner from "building up") and that's not a "taking."

Day 103: #SCOTUS100 Kelo v New London - New London stole Susette Kelo's home for the "public use" of giving it to Pfizer, who would ostensibly pay more in taxes.

Evil motives turned to bumbling incompetence. Last I heard, the property is used primarily by feral cats.