In the 75th issue of the Catholic University Law Review, Kevin C. Walsh, Knights of Columbus Professor of Law and the Catholic Tradition at Catholic Law, explores an important shift in the framework for constitutional adjudication in his article, "Disregarding Severability."

Walsh examines the infirmities of current severability doctrine, pointing to Chief Justice Roberts's opinion in United States v. Arthrex, Inc. as a pivotal moment for conceptual change in how to think about constitutional adjudication. He argues that the Chief Justice has begun to steer the Supreme Court away from the misleading imagery of "severing" statutory provisions and toward a more accurate framework of "judicial disregard." Courts do not "sever" or otherwise alter the written law on the books, but simply set aside rather than activate unconstitutional law in formulating their rules of decisions.

Through a close reading of Roberts's opinions on severability in agency-structure cases, reinforced by consideration of Justice Barrett's public remarks in an event at Catholic Law, Walsh argues that the Court's shift from severability toward disregard likely reflects Justice Barrett's behind-the-scenes influence near the end of her first Term on the Court. To further advance the Court's shift from severability to disregard, Walsh proposes that the Court explicitly repudiate the litigation-expanding tactic known as "bank-shot" standing, suggesting it be recognized instead as impermissible "Jenga-loser" standing. The Court's rejection of such standing would prevent parties from dismantling statutes by challenging provisions that do not directly apply to them.