An Edited Version Of Learning Resources

I realize I am unorthodox. I avoid commenting on a Supreme Court opinion till I’ve read the entire thing from front to back. I find the experience far more rewarding. I also avoid reading takes by people who almost certainly did not read the entire decision, or perhaps just skimmed the syllabus. Of course, the fact that Learning Resources had seven separate opinions, and stretched more than 170 pages, made the experience a bit unpleasant, but persevere I did.

Here is my first stab at an edited version for the Barnett/Blackman supplement, down to about 50 pages.

The majority opinion is very short, about 6 pages. The Roberts opinion can be stated very simply. As I’ve said before, the shorter a Roberts decision is, the more he is concealing.

The Gorsuch opinion, which stretches nearly 50 pages in the reported version, is cut down to 14 pages. For the most part, Gorsuch is responding to Barrett, Kagan, and Kavanaugh/Thomas. I feel like the only person on planet earth who truly needs to read the entire Justice Gorsuch opinion is Justice Gorsuch. This was for him, not his colleagues, or anyone else for that matter. Depending how much of the other four opinions you assign, you can probably skip around the Gorsuch opinion.

The Barrett concurrence is thankfully short, and I shortened it further to two pages.

I cut most of the Kagan concurrence to a page, only including the parts where she throws shade at Justice Gorsuch.

The Jackson concurrence on legislative history can be eliminated altogether. I kept a really short segment.

The Thomas dissent is about six pages. It reminds me a bit of Zivotofosky. He has very deep views on the President’s powers with regard to foreign policy. In Zivotofsy, Scalia challenged him. Here, Gorsuch doesn’t really try.

The Kavanaugh dissent is 23 pages long, much longer than the majority. This extended excerpt is justified, at least in part, because Kavanaugh goes deep into issues that Roberts glosses over. Justice Kavanaugh also tends to use theme and variation. He will state a point, develop it, then restate the point in a different way, and then restate it again. As Justice Scalia would say, repetition is afoot.

I will probably cut this excerpt down further to about 35 or 40 pages for the supplement, and under 30 pages for the casebook. It still isn’t clear to me exactly how to teach the Major Questions Doctrine in ConLaw, as this is more of a statutory interpretation/admin principle. I had hoped to include it in a section on non-delegation, but the Court assiduously avoided that issue.

Enjoy! I will have a lot of commentary on this case in the coming days.

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