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Today at the Court


At least two fairly important cases today:

–In Gundy v. U.S., the Court declined to apply nondelegation doctrine to strike down a provision of the Sex Offender Registration and Notification Act. The plurality opinion, written by Kagan, adhered to the properly deferential standard the Court has applied in practice for more than 8 decades. In a less-than-fully-encouraging concurrence in the judgment only, Alito argued that he was open to a substantial revision of the Court’s nondelegation doctrine but as long as that doctrine remained in place would not single this case out for an exception. (If you want Alito’s vote on this, don’t pick a criminal justice case.)

For why aggressive judicial application of the nondelegation doctrine is a bad idea, see George Lovell’s classic article “That Sick Chicken Won’t Hunt.” Alas, once they find the right case that’s probably where we’re headed.

–In American Legion v. American Humanist Association, the Court held 7-2 that a sectarian religious symbol (in this case a War memorial) could be prominently displayed on public property at a traffic circle. As Ginsburg observed in dissent, the symbol is unquestionably sectarian, and hasn’t become any less sectarian when it was erected, and hence constitutes the state favoring one religion over other religions over irrelgiion:

Their votes didn’t matter in this case, but as always Breyer and Kagan represent money left on the table. Meanwhile, Thomas is arguing again that the Establishment Clause should not be incorporated against the states:

He is not a crank.

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