Justice, Democracy, and Law is a recurring series by Edward B. Foley that focuses on election law and the relationship of law and democracy.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

Redistricting law is an utter mess. One major culprit is the Supreme Court’s 2019 decision in Rucho v. Common Cause, which held, 5-4, that addressing partisan gerrymandering is beyond the reach of federal courts.

One might think that once the judiciary has washed its hands of a topic, at least there’s no more ill that can come from that abdication. Yet Rucho looks worse and worse with each fresh redistricting case that the court must confront.

The Supreme Court on Friday turned down a request from the Trump administration in a dispute over a policy limiting speaking engagements by immigration judges. A federal appeals court had sent the challenge by a group representing the judges back to a federal trial court for more fact-finding on the independence of the administrative scheme set up to deal with claims by federal employees, and – in a brief unsigned order – the justices left that ruling in place. However, the court also left open the possibility that the government could return to the Supreme Court to seek relief “if the District Court commences discovery proceedings” before the justices rule on the government’s petition for review of the lower court’s decision. Law professor Stephen Vladeck, who closely tracks cases on the court’s docket, stated on social media that Friday’s order was the Trump administration’s “first real loss” at the Supreme Court since April of this year.

We haven’t had a film review on SCOTUSblog for quite some time now. Given that, we figured Bloomberg Law’s “Supreme Advocacy: What It Takes to Argue at the Supreme Court,” was the perfect candidate. The 40-minute documentary, directed by Andrew Satter, follows Supreme Court litigator Roman Martinez, a Latham & Watkins partner who has argued 16 cases in front of the justices.

It may be Christmas and Hanukkah season, but I’ve got a Supreme Court ghost story to tell. It comes from Justice Antonin Scalia, who warned of a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad.”

Scalia wasn’t describing the ghosts of angry plaintiffs wandering the halls of One First Street. He was writing, in 1993’s Lamb’s Chapel v. Center Moriches Union Free School District, about what at that point was a 22-year-old Supreme Court decision that laid out a three-part test for courts to use to determine whether a statute violated the First Amendment’s establishment clause. The so-called Lemon test, which came from 1971’s Lemon v. Kurtzman, was much-maligned as unwieldy to apply and thus often side-stepped. But it remained on the books – to Scalia’s chagrin.

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

Last year, federal prosecutors obtained a conviction against Hunter Biden under 18 U.S.C. § 922(g)(3), the federal statute that makes it a felony for any “unlawful user” of a controlled substance to possess a firearm. The government has also invoked the same statute against numerous individuals who smoked marijuana at some point before buying a gun, even in states where marijuana is legal. Under a longstanding regulation interpreting the statute, tens of millions of Americans could fall within its reach.

Later this term, in United States v. Hemani, the Supreme Court will address unlawful-user prosecutions under Section 922(g)(3). The case has been billed as the court’s next major Second Amendment battle. But it need not be. The court can and should avoid that constitutional thicket by resolving the case on a statutory ground. That outcome might be less dramatic, but it could have broader practical significance for how courts deal with open-ended language in a wide array of criminal statutes.