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McGreal on Jensen v. Quaring

By Lawrence Solum

Paul E. McGreal (Southern Illinois University at Carbondale - School of Law) has posted The Unpublished Free Exercise Opinion in Jensen v. Quaring (Southern Illinois University Law Journal) on SSRN. Here is the abstract:

Since they were opened to the public in March 2004, the Harry A. Blackmun Papers at the Library of Congress have provided a wealth of information about the United States Supreme Court and its landmark decisions. This Essay leaves the beaten path, focusing on an unpublished Opinion of the Court in the relatively unknown case Jensen v. Quaring. In the official United States Reports, Jensen is a summary disposition - the Court split four to four and so affirmed the lower court without opinion. The Blackmun Papers, however, show that the vote after oral argument was five to three to reverse the court of appeals. After Chief Justice Burger circulated a draft Opinion of the Court that would have radically altered the Court?s approach to the Free Exercise Clause, Justice Blackmun switched his vote, making the tally four to four. So, while Jensen could have been a turning point in the Court?s Free Exercise Clause jurisprudence, it instead resides in constitutional law obscurity.

Full post as published by Legal Theory Blog on February 09, 2010 (boomark / email).