I think the Landor assignment probably was to BK; he tried to write a statutory interpretation opinion, which wasn't plausible because of Tanzir; and therefore NG took over to write a constitutional opinion (which is likely what he was proposing at conference to begin with).
What an interesting thought. What do the hypothetical internal memos look like in that instance? Does constitutional avoidance trouble particular justices as they see the initial assignment and reasoning change from statutory-BK to constitutional-NG?
Separately/specifically, what would the hypothetical before/after look like for CT’s concurrence during that change?
Re the THT test of Bruen, Sarah Isgur has raised an interesting point that there doesn't seem to be a lot of discussion on. Her point is that just because there wasn't a law around the founding or reconstruction that restricted guns in x or y way, doesn't indicate that the people in power back then didn't believe they had the ability to pass such laws. Maybe such circumstances never arose that required them to pass such a law.
I find the THT test to be an unworkable mess. Perhaps the Court is pushing it so hard so it can use a similar test for religious liberty cases once it overturns Smith?
For RLUIPA, it could be seen as good optics that the court did not instinctually rule in favor to the religious claim.
It is poor optics that this relates to a minority religion that is predominantly practiced by those of African descent.
It brings to mind 2019 capital case decisions denying a Muslim petitioner’s attempt to have his imam present (in the face of a policy that allowed Christian advisors) and then almost immediately allowing for a Buddhist to make his claim for his priest to be present.
Will was really straining to defend Gorsuch's opinion in Landor. One of his less convincing performances. Episodes like this make me wish Dan were a bit more incisive/critical. He lets Will get away with a lot.
Dan didn't quite word it this way, but I do think there is a lot of vibes, values, and results based lawyering (spending clause and guns) in both these cases and in their recent second amendment cases in general.
I think the Landor assignment probably was to BK; he tried to write a statutory interpretation opinion, which wasn't plausible because of Tanzir; and therefore NG took over to write a constitutional opinion (which is likely what he was proposing at conference to begin with).
What an interesting thought. What do the hypothetical internal memos look like in that instance? Does constitutional avoidance trouble particular justices as they see the initial assignment and reasoning change from statutory-BK to constitutional-NG?
Separately/specifically, what would the hypothetical before/after look like for CT’s concurrence during that change?
Re the THT test of Bruen, Sarah Isgur has raised an interesting point that there doesn't seem to be a lot of discussion on. Her point is that just because there wasn't a law around the founding or reconstruction that restricted guns in x or y way, doesn't indicate that the people in power back then didn't believe they had the ability to pass such laws. Maybe such circumstances never arose that required them to pass such a law.
I find the THT test to be an unworkable mess. Perhaps the Court is pushing it so hard so it can use a similar test for religious liberty cases once it overturns Smith?
For RLUIPA, it could be seen as good optics that the court did not instinctually rule in favor to the religious claim.
It is poor optics that this relates to a minority religion that is predominantly practiced by those of African descent.
It brings to mind 2019 capital case decisions denying a Muslim petitioner’s attempt to have his imam present (in the face of a policy that allowed Christian advisors) and then almost immediately allowing for a Buddhist to make his claim for his priest to be present.
Principled? Perhaps. Bad optics? For sure.
Will was really straining to defend Gorsuch's opinion in Landor. One of his less convincing performances. Episodes like this make me wish Dan were a bit more incisive/critical. He lets Will get away with a lot.
Dan didn't quite word it this way, but I do think there is a lot of vibes, values, and results based lawyering (spending clause and guns) in both these cases and in their recent second amendment cases in general.