Is the Supreme Court Heating Up Again?

February is a cold, dreary month, and the justices are on the slowest decision-making pace in modern history -- but that could change very quickly.

February is many people’s least-favorite month. It’s cold and dark—at least for those of us who made the bad life choice of living somewhere other than Florida—and it’s far from both the festive holiday season and the “anything is possible” rebirth of spring. True, it’s broken up by Valentine’s Day, but that’s a fraught and/or depressing thing for at least as many people as those who celebrate its amorous embrace. And for those of us with multiple kids and whose marriage is in (almost) double digits—it’ll be ten years in June—it was simply another Tuesday (though we did toast it at date night the preceding Saturday).

February is also unusual at the Supreme Court. There’s a six-week period after its January sitting that the justices are simply off—presumably working away on all the opinions that have piled up. This year, the pace of decisions is particularly slow, with the first one (plus the dismissal of an argued case) not coming until January 23 and three more added February 22, none of them in the term’s headliners. So there’s not much for analysts to do, though those of us who also file briefs still face the press of deadlines (about which more shortly). There have been minor kerfuffles about court “reform” from the left-wing fever swamp, but I can’t seem to recall the latest rantings other than something about the need for an ethics code—because clearly that would’ve caused Justice Alito to uphold Roe v. Wade, or Senator Susan Collins to have voted not to confirm Justice Kavanaugh. Oh, and then the amazing spectacle of progressives’ calling to weaken the Supreme Court while also up in arms about Israel’s proposed judicial reforms that would . . . weaken the Supreme Court.

For me, February wasn’t nearly as dreary as it has been in past years, in part because of the mild winter we’ve had in northern Virginia, in part because we threw an awesome puppy-themed fifth birthday party for my second son, and in part because I resumed travel after taking three months off around my twins’ birth.

Charlie is living his best life.

To that end, and very much in line with the thrust of Shapiro’s Gavel, I made three trips: (1) San Francisco (the Tonga Room is still great and I didn’t step in human feces) and Stanford (annual “Supreme Court at Midterm” conference, where I introduced myself as a Georgetown professor emeritus and the students were amazed to find more than one conservative in a room at a time); (2) Fort Worth (to speak at Texas A&M Law, where in November there was outrage that the Federalist Society invited social conservatives to speak on a religious-liberty panel) and Austin (to speak at a conference on “reversing the radical culture” that ironically took place at the LBJ presidential library); and (3) Palm Beach (to receive the Paul du Quenoy Prize “recognizing individuals who have exposed absurd or unethical practices in academic institutions and media organizations” and attend a talk by the previous winner, Joshua Katz). Truth be told, tomorrow will be my fourth February trip, to New York City for some meetings at the Manhattan Institute.

Who’s happiest here: the girl, me, or the longhorn? (Not shown: my boots.)

But really, the month went by in a blur because I’ve been working hard on my book, the working title of which has changed to Canceling Justice: The Illiberal Takeover of Legal Education. I’m about 45% done the manuscript, which is due the end of July. That’s well ahead of where I was five months before deadline on my last book, which was basically still in the “research” stage.

Apart from that, I filed an important Supreme Court brief in the case challenging President Biden’s student-loan forgiveness plan, which the Supreme Court will hear this Tuesday. I previewed that argument, and reviewed last week’s arguments on whether social-media companies can be held liable for the radicalization of terrorists (or are immune under Section 230 of the Communications Decency Act of 1996), on the Fox News show “Journal Editorial Report” yesterday. I also have a preview of the student-loan case, Biden v. Nebraska, tomorrow in City Journal (watch this space).

That’s why I say the Supreme Court may be heating up. And of course at any time, we could get an important opinion—though probably not in the Harvard/UNC racial-preferences cases, which were argued in early October so we may not have to wait till the end of June for them.

And if you want to dig deeper into whether the Supreme Court needs to be reformed, I have a feature in the March issue of Deseret magazine which has already dropped online.

Until next time, beware the Ides of March!