Please note that SCOTUS Outside Opinions constitute the views of outside contributors and do not necessarily reflect the opinions of SCOTUSblog or its staff.

Tradition may have been a balancing force in “Fiddler on the Roof” but nowadays it has originalists feeling out of whack. Originalists unite around the belief that constitutional provisions should be interpreted according to their original public meaning; that is, how these provisions would have been understood at the time of their ratification. But what counts as evidence of original public meaning? And can post-ratification practices play a role?

Lawyers for the state of California on Thursday urged the Supreme Court to leave in place a new congressional map intended to give Democrats five additional seats in the U.S. House of Representatives. Christopher Hu, the deputy solicitor general of California, called the desire by Republicans to retain a majority in the House a “natural political objective.” But it is “deeply unnatural,” the state contended, for a group of California Republicans challenging the map to ask the justices “to step into the political fray, granting one political party a sizeable advantage by enjoining California’s partisan gerrymander after having allowed” Texas to implement a map intended to allow Republicans to pick up five additional seats in that state.

When the justices hold their private conference on Friday, Feb. 20, the petitions for review that they are slated to consider will include one from President Donald Trump, asking the Supreme Court to weigh in on the 2023 verdict against him in a civil suit brought by E. Jean Carroll. Trump calls the lawsuit “facially implausible” and “politically motivated”; Carroll urges the court to deny Trump’s petition, telling the justices that the verdict would stand regardless of their ruling.

The Supreme Court has made a mess of the law concerning the Second Amendment. Two years ago, in the last Supreme Court decision about the Second Amendment, United States v. Rahimi, Justice Ketanji Brown Jackson in a concurring opinion noted how “lower courts are struggling” with recent precedent concerning this amendment and that “confusion plagues the lower courts.”  

There are two cases on the docket this term regarding gun laws and they likely will exacerbate, not clear up, the confusion. The court could – and should – solve much of this problem by treating the Second Amendment like other rights in the Constitution.

Controlling Opinions is a recurring series by Richard Re that explores the interaction of law, ideology, and discretion at the Supreme Court.

The Supreme Court is creating a formidable presidential power to remove subordinate executive officials, even from many once-independent agencies. Yet the court is not simply tearing down the principle of agency independence associated with Humphrey’s Executor v. United States, the court’s 1935 decision approving statutory limits on the president’s power to fire commissioners of the FTC. To fully understand the court’s removal jurisprudence – how and why it is changing – executive officials’ for-cause tenure protection must be understood in at least three dimensions.