Archive for the 'Supreme Court' Category

The First Amendment Versus Pat Buchanan?

Published 1, February 18, 2012 Constitutional Law , Courts , Free Speech , Justice , Lawyering , Media , Politics , Society , Supreme Court 63 Comments

Respectfully submitted by Lawrence Rafferty (rafflaw)-Guest Blogger

I am the last person that should be defending Pat Buchanan and objecting to his recent termination as a political analyst for MSNBC.  However, after thinking about it for a while, I have come to the conclusion that Uncle Pat’s firing is an attack on Free Speech and a continuation of the Fox News type mentality on our cable news stations.  Let me first make it clear that most of what Buchanan says on the air is offensive and in some cases, outright disgusting.  However, if we cannot say what is on our mind without limits, do any of us really have the freedom to speak our minds? Continue reading ‘The First Amendment Versus Pat Buchanan?’

Abuse Of Power: Obama’s Recess Appointments And The Constitution

Published 1, February 15, 2012 Columns , Congress , Constitutional Law , Courts , Politics , Society , Supreme Court , USA Today 67 Comments

Below is today’s column, which concerns the subject upon which I will be testifying this morning before the full House Judiciary Committee: recess appointments.

Continue reading ‘Abuse Of Power: Obama’s Recess Appointments And The Constitution’

Turley Testimony on the Constitutionality of Recess Appointments

Published 1, February 15, 2012 Congress , Constitutional Law , Courts , Politics , Society , Supreme Court , Testimony 14 Comments

Below is my testimony this morning before the full House Judiciary Committee on the constitutionality of the recent recess appointments by President Obama. I also wrote a column this morning on that same subject.

Continue reading ‘Turley Testimony on the Constitutionality of Recess Appointments’

Employment Division v. Smith

Published 1, February 12, 2012 Congress , Constitutional Law , Religion , Supreme Court 20 Comments

-Submitted by David Drumm (Nal), Guest Blogger

Since the United States Conference of Catholic Bishops (USCCB) has rejected Obama’s contraception compromise, and since House Speaker John Boehner (R-Ohio) has called the mandate unconstitutional, it’s a good time to look at what the Supreme Court has decided. A critical case is Employment Division v. Smith (1990) in which J. Scalia wrote the opinion for the 6-3 majority. Although there has been a torrent of invective regarding the Smith decision, I find it well-argued and compelling.

Continue reading ‘Employment Division v. Smith‘

Prop 8 Decision: Ninth Circuit Rules Same-Sex Marriage Proposition Unconstitutional

Published 1, February 7, 2012 Constitutional Law , Courts , Politics , Religion , Society , Supreme Court , Uncategorized 41 Comments

The Ninth Circuit has ruled 2-1 in the long-awaited sex-sex marriage case and affirmed the lower court in finding the law unconstitutional. Eighteen months ago former Chief U.S. District Judge Vaughn Walker struck down the ban on same-sex marriage. Judge Stephen Reinhardt wrote the lengthy opinion below upholding Walker and striking down the law. The Court ruled that “[b]y using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause.”

Continue reading ‘Prop 8 Decision: Ninth Circuit Rules Same-Sex Marriage Proposition Unconstitutional’

Federal Court Rules Sister Wives Case Can Go Forward

Published 1, February 3, 2012 Constitutional Law , Courts , Criminal law , Politics , Religion , Society , Supreme Court 44 Comments

Despite widespread predictions to the contrary, a federal court in Salt Lake City has ruled that the Sister Wives challenge of the statute anti-polygamy law can go forward and denied the effort to dismiss the lawsuit. The long and detailed ruling of United States District Court Judge Clark Waddoups agreed with our arguments that we have standing to challenge the state law. The standing question has long been discussed as the most significant barrier for the family in seeking a ruling on the merits. Prior such challenges have been denied at the standing stage.

Continue reading ‘Federal Court Rules Sister Wives Case Can Go Forward’

Indiana Senate Moves Toward Teaching Of Creationism In Public Schools

Published 1, January 27, 2012 Academics , Constitutional Law , Courts , Politics , Religion , Society , Supreme Court 41 Comments

The Senate Education Committee of the Indiana Senate has overwhelmingly voted to approve a bill allowing for the teaching of creationism in the state’s public schools. The Sponsor is Senator Dennis Kruse.

Continue reading ‘Indiana Senate Moves Toward Teaching Of Creationism In Public Schools’

Supreme Court Unanimously Rejects Obama Administration’s Effort to Conduct Warrantless GPS Searches

Published 1, January 23, 2012 Constitutional Law , Criminal law , Society , Supreme Court 40 Comments

I previously wrote about the pending case of United States v. Jones and the effort of the Administration to establish precedent allowing the government to follow citizens with Global Positioning Devices (GPS) without any showing of probable cause. I am happy to report that the Court has ruled unanimously against the government and found the practice to be unconstitutional under the fourth amendment. It is a stinging defeat for the Obama Administration but a roaring victory for privacy and civil liberties at a time when good news is rare.

Continue reading ‘Supreme Court Unanimously Rejects Obama Administration’s Effort to Conduct Warrantless GPS Searches’

The Roberts Court and Free Speech

Published 1, January 22, 2012 Constitutional Law , Courts , Free Speech , Justice , Lawyering , Supreme Court 26 Comments

Respectfully submitted by Lawrence Rafferty (rafflaw)-Guest Blogger

We have all certainly heard of the important Freedom of Speech cases that the Roberts led Supreme Court has decided.  Citizens United is probably the most prominent one that comes to my mind.  Of course, the Citizens United case promoted the ability of corporate entities to enjoy full Free Speech rights. Other important Free Speech cases that were decided by the Roberts Court include the military funeral case of Snyder v. Phelps, et al,(131 S. Ct. 1207 (2011) ) and the Brown v. Entertainment Merchants case (131 S. Ct. 2729 (2011) ) in California which overturned a California law which required parental consent for minors to rent or buy violent video games.  Because of these decisions and others, some scholars and constitutional law experts make the claim that the Roberts Court is the most pro-free speech Supreme Court in history! Continue reading ‘The Roberts Court and Free Speech’

Framing Discrimination As Religious Freedom

Published 1, January 21, 2012 Constitutional Law , Religion , Science , Supreme Court 92 Comments

-Submitted by David Drumm (Nal), Guest Blogger

In a recent full-page paid advertisement in the Washington Post, the U.S. Conference of Catholic Bishops (USCCB) and dozens of leaders of Catholic organizations voiced their opposition to the Department of Health and Human Services (HHS) rule which they describe as forcing private health providers to provide “preventive services.” The HHS plan mandates, without charging a co-pay, co-insurance or a deductible, the provision of FDA-approved contraception methods. The advertisement claims these drugs may cause abortions which, by their definition, includes any single-celled  fertilized egg that doesn’t implant.

The ad claims that following the HHS rule would violate their religious liberty and freedom of conscience.

Continue reading ‘Framing Discrimination As Religious Freedom’

Justice According To Scalia and Thomas: Two Justices Dissent From Giving Death Row Inmate Appeals After He Was Abandoned By Counsel

Published 1, January 19, 2012 Constitutional Law , Courts , Criminal law , Supreme Court 51 Comments

Recently we discussed the twisted jurisprudence of Associate Justice Clarence Thomas. Thomas is back in another disturbing dissent written by Antonin Scalia in the case of Maples v. Thomas. Cory Maples was convicted of two murders in Alabama in 1997. Since Alabama does not pay for post-conviction assistance, he relied on Jaasai Munanka and Clara Ingen-Housz from the law firm of Sullivan and Cromwell. When the attorneys left, however, the firm let the case drop and Maples was never informed that an appeal had been denied. His time for appeal lapsed. Seven justices lined up to support the right to an appeal, including Roberts and Alito who are not known to support criminal defendants in most cases. However, Thomas and Scalia insisted that there was no need for further judicial review in light of the failure of counsel. If leaving a case entirely is not ineffective counsel, it is difficult to see when such a standard would be satisfied in the jurisprudence of Thomas and Scalia.

Continue reading ‘Justice According To Scalia and Thomas: Two Justices Dissent From Giving Death Row Inmate Appeals After He Was Abandoned By Counsel’

The DHS Wants to Know Who’s Spreading the News (or Expressing an Opinion), Your Rights Optional

Published 1, January 15, 2012 Constitutional Law , Free Speech , Justice , Media , Politics , Society , Supreme Court , Uncategorized 110 Comments

Submitted by Gene Howington, Guest Blogger

Freedom of speech is a well established right in this country and rooted in the 1st Amendment.  ”Congress shall make no law [. . .] abridging the freedom of speech, or of the press”.  The U.N.’s  Universal Declaration of Human Rights Article 19 reads, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”  Within the United States and our jurisprudence there are some exceptions to this freedom, but by in large (up to this point in history) the restrictions are both reasonable and necessary: the Miller test for obscenity, child pornography laws, laws prohibiting speech that incites imminent lawless action, restrictions on fighting words, regulation of commercial speech such as advertising, copyright and patent laws protecting authors and inventors control over their work, and the prohibition of slander and defamation.

Let’s be clear here that the subject isn’t just free speech, but anonymous political free speech.

Here at Res Ipsa Loqitur, there is a long standing policy of allowing anonymous posting to comments and protecting poster’s anonymity.   The decision to post under your own name or not is entirely yours.  This policy encourages free speech while allowing that having an unpopular or minority point of view should not have negative political consequences for the speaker or unnecessarily complicate their lives simply for expressing their views.  Many political insiders and Washington professionals have told Professor Turley that they enjoy reading this blog and have enjoyed posting anonymously.  The only posters here required to use their real identities are the guest bloggers and the requirement is voluntary.  None of us were coerced into using our real names.  When offered the honor of being a guest blogger, it was simply (and I think I speak for all the guest bloggers when I say fairly) a requirement in assuming editorial responsibilities.  However, all of this raises an important question.

Do you have a right to anonymous political free speech?

According to the Supreme Court, you do.  According to the Department of Homeland Security, you don’t.  They’ve hired General Dynamics to track U.S. citizens exercising this critical civil right.

Continue reading ‘The DHS Wants to Know Who’s Spreading the News (or Expressing an Opinion), Your Rights Optional’

10 Reasons The U.S. Is No Longer The Land Of The Free

Published 1, January 15, 2012 Academics , Columns , Congress , Constitutional Law , Free Speech , International , Media , Politics , Society , Supreme Court 397 Comments

Below is today’s column in the Sunday Washington Post.  The column addresses how the continued rollbacks on civil liberties in the United States conflicts with the view of the country as the land of the free.  If we are going to adopt Chinese legal principles, we should at least have the integrity to adopt one Chinese proverb: “The beginning of wisdom is to call things by their right names.”  We seem as a country to be in denial as to the implications of these laws and policies.  Whether we are viewed as a free country with authoritarian inclinations or an authoritarian nation with free aspirations (or some other hybrid definition), we are clearly not what we once were.
Continue reading ’10 Reasons The U.S. Is No Longer The Land Of The Free’

DOJ Weighs In On Police Taping Case

Published 1, January 14, 2012 Constitutional Law , Courts , Criminal law , Supreme Court 28 Comments

-Submitted by David Drumm (Nal), Guest Blogger

In May 2010, Christopher Sharp used his cell phone camera to record Baltimore City Police officers arrest and beat a female acquaintance at the Plimlico Race Course. The officers detained Sharp, seized his cell phone, and returned it later with all his videos deleted, including videos of his young son at sports events. Sharp filed a complaint in the Circuit Court for Baltimore City Maryland which was later moved the United States District Court for the district of Maryland.

The United States Department of Justice has decided to get involved, on the side of Sharp.

Continue reading ‘DOJ Weighs In On Police Taping Case’

Justice According To Thomas: Dissent in Case Overturning Murder Conviction Highlights The Twisted Jurisprudence of Clarence Thomas

Published 1, January 12, 2012 Constitutional Law , Criminal law , Society , Supreme Court 54 Comments

The extreme views of Justice Clarence Thomas were put into sharp relief yesterday when he stood alone in an 8-1 decision to overturn an outrageous conviction from New Orleans. In the face of shocking misconduct by prosecutors under Harry Connick Sr., even the most conservative members lined up to denounce the case . . . all but one.

Continue reading ‘Justice According To Thomas: Dissent in Case Overturning Murder Conviction Highlights The Twisted Jurisprudence of Clarence Thomas’

Too Sooner For Sharia? Tenth Circuit Rules Against Oklahoma’s Anti-Sharia Law

Published 1, January 11, 2012 Constitutional Law , Courts , International , Politics , Religion , Society , Supreme Court 22 Comments

We previously discussed the law passed in Oklahoma barring state judges from considering Islamic and international law in their decisions. Now the United States Court of Appeals for the Tenth Circuit has blocked the law. The three-judge panel upheld an injunction barring certification of Question 755. The decision has some important language for both standing and free exercise claims.
Continue reading ‘Too Sooner For Sharia? Tenth Circuit Rules Against Oklahoma’s Anti-Sharia Law’

America’s Transcendent Issue

Published 1, January 7, 2012 Columns , Congress , Constitutional Law , Courts , Criminal law , Economics , International , Justice , Media , Military , Politics , Religion , Society , Supreme Court , Uncategorized 239 Comments
Tags: , , , , , , , , , ,

Submitted by: Mike Spindell, guest blogger

ImageWhen you contemplate all of the problems that beset us in this election year it is hard not to feel daunted by the task of finding solutions. Many millions of American’s are without jobs, with the prospect of future employment seeming illusory. The top 1% of the American population controls vast amounts of the country’s wealth.  http://www.businessinsider.com/15-charts-about-wealth-and-inequality-in-america-2010-4?op=1  Wages of average Americans have stagnated for the past 40 years to such an extent that our middle class is shrinking rapidly. The housing boom of years past has become a bust of monumental proportions and foreclosures are destroying formerly viable neighborhoods. Our once barely adequate “safety net” has been shredded and there are attempts to destroy both Social Security and Medicare as we know it. Despite a weak attempt at Medical reform millions of Americans find health care unaffordable, with many dying and others forced into bankruptcy to stay alive. Due to lack of money America’s once magnificent infrastructure is rotting and solutions are not on the horizon.

The collapse and bailout of our banking industry has cost us trillions and appears to have been brought about by fraudulent practices on the part of the industry, yet no one has been indicted. In fact the remuneration of top executives in this duplicitous industry has actually increased. Efforts to impose stiff controls ensuring that these artificial crises don’t happen again and that these huge financial entities do business ethically, have failed to pass the Congress. We see that the fallout from the American banking crisis has undercut the world’s economy and that economic crises in other industrialized nations appear regularly. Please notice I’m only referring to the economic problems we face and only producing a partial list of those economic problems.

We have seemingly come to the conclusion of an unnecessary war in Iraq, where trillions were spent and perhaps a million were killed, yet the withdrawal of troops is to bases that surround Iraq. We are leaving about 40,000 Americans in country, many as mercenaries (contractors is a euphemism) as we support the largest diplomatic infrastructure in any foreign nation. The war in Afghanistan still rages in a land that has never been significantly shaped by any outside empire, this despite the killing of Osama Bin Laden and the virtual destruction of Al Qaeda.  Hundreds of billions are being spent and the lives of our troops are put in danger, in an exercise with little hope of success. Billions are going towards building Afghanistan’s infrastructure as ours is falling apart. Yet these instances fail to raise the broad spectrum of the military/foreign policy problems continuing to plague us. These issues include a military budget that far greater than that of all other nations. http://en.wikipedia.org/wiki/List_of_countries_by_military_expenditures 

However, these three paragraphs still do not encompass the broad range of problems we Americans face. There is more to be touched on before we come to the conclusion that I’ve reached, that there is one problem that not only transcends all of these, but its need for immediate solution supersedes any of the others in importance. Continue reading ‘America’s Transcendent Issue’

TURLEY BLOG PICKED AS TOP OPINION LEGAL BLOG IN 2011

Published 1, January 5, 2012 Academics , Animals , Bizarre , Congress , Constitutional Law , Courts , Criminal law , Economics , Environment , Free Speech , International , Justice , Lawyering , Media , Military , Politics , Religion , Science , Society , Supreme Court , Torts 27 Comments

Last night the editors of the ABA Journal informed us that we have voted the top opinion blog of 2011 in the ABA Journal competition. It is our second such top award in the annual competition and it is an honor shared equally by all of our contributors and readers.
Continue reading ‘TURLEY BLOG PICKED AS TOP OPINION LEGAL BLOG IN 2011′

Merry Christmas To All

Published 1, December 25, 2011 Academics , Animals , Bizarre , Columns , Congress , Constitutional Law , Courts , Criminal law , Economics , Environment , Politics , Religion , Science , Society , Supreme Court , Torts 32 Comments

Best wishes to everyone celebrating Christmas and Hanukkah. Continue reading ‘Merry Christmas To All’

The Turley Blog Needs Your Vote! The ABA Competition Is Down To The Wire For Top Opinion Blog

Published 1, December 21, 2011 Academics , Courts , Criminal law , Economics , Environment , Free Speech , International , Justice , Lawyering , Media , Military , Politics , Religion , Science , Society , Supreme Court , Torts 54 Comments

This year’s competition for the top opinion blog by the American Bar Association has become an intense race between our blog and one of the largest conservative legal blogs, Volokh Conspiracy. Even though VC is one of the largest blogs in the country, we are only a couple of dozen votes away with voting closing on December 31st. We need every vote so please spread the word to civil libertarians and others that we need their support to pull off the ultimate David and Goliath victory.
Continue reading ‘The Turley Blog Needs Your Vote! The ABA Competition Is Down To The Wire For Top Opinion Blog’

Newt Gingrich Channels His Inner Dictator

Published 1, December 18, 2011 Constitutional Law , Justice , Lawyering , Politics , Society , Supreme Court 61 Comments

Submitted by Gene Howington, Guest Blogger

Newt Gingrich made statements this weekend that leave little doubt he would drag the already overreaching Office of the President over the threshold of dictatorship.  First, let us be clear about what a dictatorship is:  a dictatorship is autocratic rule, control, or leadership; a form of government in which absolute power is concentrated in a dictator or a small clique; a government organization or group in which absolute power is so concentrated.  Second, let us be clear that such a concentration of power in a single branch of government is clearly unconstitutional under the Separation of Powers doctrine.

Continue reading ‘Newt Gingrich Channels His Inner Dictator’

Supreme Court Takes Arizona Immigration Case — Kagan Recuses

Published 1, December 12, 2011 Congress , Constitutional Law , Courts , International , Justice , Politics , Society , Supreme Court 51 Comments

The Supreme Court today accepted cert in the challenge to Arizona’s tough anti-immigration law. In a loss to the Administration, Associate Justice Kagan recused herself from the case.

Continue reading ‘Supreme Court Takes Arizona Immigration Case — Kagan Recuses’

Filibusters Gone Wild

Published 1, December 11, 2011 Congress , Courts , Justice , Politics , Supreme Court , Things That Tick Me Off 34 Comments

Respectfully Submitted by Lawrence Rafferty(rafflaw)-Guest Blogger

Now that I have gotten over the Bears overtime loss to the Bronco’s, it is time for the Night Shift to get to work.  I imagine that most of us remember the so-called “Gang of Fourteen” that came to prominence during the George W. Bush Administration.  This group of Senators actually decided that the Senate should give all Judicial nominees an up or down vote in the full Senate except in some very extreme circumstances. “In 2005, a group of senators known as the “Gang of 14” determined that all judicial nominees should receive an up-or-down vote absent “extraordinary circumstances.”  As Senator Lindsey Graham explained the agreement at the time,’ “ideological attacks are not an ‘extraordinary circumstance.’ To me, it would have to be a character problem, an ethics problem, some allegation about the qualifications of a person, not an ideological bent.” ‘ American Constitution Society  It is a shame that the Gang of Fourteen, or at least the survivors of that group have decided that politics is more important than fairness! Continue reading ‘Filibusters Gone Wild’

Senate Votes Overwhelmingly To Allow Indefinite Detention of Citizens

Published 1, December 2, 2011 Congress , Constitutional Law , Courts , Criminal law , Free Speech , International , Justice , Lawyering , Military , Politics , Society , Supreme Court 128 Comments

In one of the greatest attacks on civil liberties in this country’s history, Democratic and Republican Senators voted yesterday to approve a measure as part of the $662 billion defense bill that would allow for the military to hold both citizens and non-citizens indefinitely without trial — even those arrested on U.S. soil. In a welcomed change, President Obama has committed his Administration to fighting the measure as inimical to the rule of law. The measure was pushed by Carl Levin (D – Michigan) and John McCain (R – Arizona). While some members of Congress like Ron Paul (R., Texas) have denounced the bill, the measure passed at the same time that Administration lawyers publicly declared that the military and intelligence agencies alone should decide whether a citizen should be killed without a charge or hearing (including killing citizens on U.S. soil) — a position supported by President Obama who has ordered the killing of U.S. citizens under his claim of inherent authority.

Continue reading ‘Senate Votes Overwhelmingly To Allow Indefinite Detention of Citizens’

Turley Blog Selected As A Top 100 Legal Blog — Now We Need Your Vote!

Published 1, December 2, 2011 Academics , Constitutional Law , Courts , Criminal law , Environment , Free Speech , International , Justice , Lawyering , Media , Politics , Religion , Society , Supreme Court 45 Comments

The ABA Journal has released its list of the top 100 legal blogs in the world and we are once again in this august group of blogs. Congratulations to all of our regulars contributors and weekend bloggers. This blog’s success is due entirely to the consistently high level of commentary among our readers and, I believe, our commitment to civil and substantive (if at times passionate) dialogue on the legal and political issues of our day. We are again placed in the “opinion” category and facing two of the top five most popular blogs. You can vote at You can vote at this site by clicking on the “opinion” category and we need your vote. A quick registration is needed to prevent cheating in the competition.

Continue reading ‘Turley Blog Selected As A Top 100 Legal Blog — Now We Need Your Vote!’

The Incarceration of Black Men in America

Published 1, November 26, 2011 Academics , Columns , Constitutional Law , Courts , Criminal law , Justice , Lawyering , Politics , Society , Supreme Court , Uncategorized 105 Comments

Submitted by: Mike Spindell, guest blogger

America has the world’s highest rate of incarceration, currently 738 per 100,000. Our nearest competitor for this dubious distinction is the Russian Federation with 607 and Cuba with 487. “The US incarcerates at a rate 4 to 7 times higher than other western nations such as the United Kingdom, France, Italy, and Germany and up to 32 times higher than nations with the lowest rates such as Nepal, Nigeria, and India.”

 http://www.nccd-crc.org/nccd/pubs/2006nov_factsheet_incarceration.pdf                                                                                                                                           Despite possible protestations that this is because we have the best law enforcement, my sense is that the reasons lie more in the system, than those who enforce it. No one ever lost an election in America because of the perception they “were tough on crime”.

“Race: Black males continue to be incarcerated at an extraordinary rate. Black males make up 35.4 percent of the jail and prison population — even though they make up less than 10 percent of the overall U.S population. Four percent of U.S. black males were in jail or prison last year, compared to 1.7 percent of Hispanic males and .7 percent of white males. In other words, black males were locked up at almost six times the rate of their white counterparts.”        http://www.nccd-crc.org/nccd/pubs/2006nov_factsheet_incarceration.pdf

Despite possible protestations that this is because we have the best law enforcement, my sense is that the reasons lie more in the system, than those who enforce it. No one ever lost an election in America because of the perception they “were tough on crime”. “Race: Black males continue to be incarcerated at an extraordinary rate. Black males make up 35.4 percent of the jail and prison population — even though they make up less than 10 percent of the overall U.S population. Four percent of U.S. black males were in jail or prison last year, compared to 1.7 percent of Hispanic males and .7 percent of white males. In other words, black males were locked up at almost six times the rate of their white counterparts.”      

http://www.laprogressive.com/law-and-the-justice-system/boiling-hot-mad/.html

These two sets of statistics when viewed together tell a terrible tale of how racial oppression still exists in this country despite our Black President and Black Attorney General. This Administration hasn’t caused of this problem, but they  don’t seem to have made any progress dealing with it. We do know that there has been a widespread effort to play down the racial division that continues to plague this country. This continues despite Civil Rights Laws, Martin Luther King’s Birthday and TV beer commercials that always include at least one black male friend enjoying the camaraderie. Clearly there is a disconnect between how we Americans want to see ourselves and the reality for many Black males. Continue reading ‘The Incarceration of Black Men in America’

Let’s Kill All The Lawyers?

Published 1, November 19, 2011 Academics , Columns , Constitutional Law , Courts , Criminal law , Free Speech , Justice , Lawyering , Politics , Society , Supreme Court 45 Comments

Submitted by Mike Spindell, Guest Blogger
Last week during a long road trip, I was listening to a CD from the band The Eagles. A song came on written by Don Henley and Glenn Frey the group’s songwriters and leaders. The song is called “Get Over It”. As the autumn beautiful Shenandoah Valley landscape was passing by, a line from the song jarred me from my motoring reverie and made me think of this blog. The line was:

“The more I think about it, Old Billy was right
Let’s kill all the lawyers, kill ‘em tonight.”
Continue reading ‘Let’s Kill All The Lawyers?’

How Not To Pass A National Health Care Program: New Poll Shows Almost Half of Americans Want The Repeal of the Health Care Law

Published 1, November 17, 2011 Congress , Politics , Society , Supreme Court 16 Comments

One of the most interesting aspects of the litigation over health care has been the Obama Administration’s push for review in the Supreme Court. Rather than slow walking the case, the Administration facilitated a review that will result in a ruling before the election. As on many other decisions by this White House, the political calculation seems counterintuitive. I have said in interviews that I do not know which will be worse politically: for the Administration to lose before the Court or to win. Now a poll suggests it might be the latter. Gallop found this week that 47 percent of Americans want to see the law repealed. Only 43 percent favor the law. Fifty-six percent still prefer the use of private insurance over a federal insurance program. This poll joins the sobering fact that a majority of states are now in court in an unprecedented opposition to the federal law. Regardless of how you feel about health care, this is not how you pass a major new program and is the result of the decision by the White House and Democratic leaders to muscle through this vote on the thinnest of margins.
Continue reading ‘How Not To Pass A National Health Care Program: New Poll Shows Almost Half of Americans Want The Repeal of the Health Care Law’

Should Kagan Recuse Herself From The Health Care Case?

Published 1, November 15, 2011 Courts , Justice , Lawyering , Politics , Supreme Court 31 Comments

We have previously discussed the question of recusals involving Justice Clarence Thomas and his violation of reporting rules on the Court. Now, a similar debate is likely to start over the participation of Justice Elena Kagan in any review of Patient Protection and Affordable Care Act. The loss of Kagan could be determinative in a close vote on the Court, but that is always the danger in selecting your Solicitor General as a nominee. While Kagan used the announcement of cases on Monday to recuse herself for other cases, she notably did not include the Florida case.
Continue reading ‘Should Kagan Recuse Herself From The Health Care Case?’

Conservative Take on Obamacare

Published 1, November 13, 2011 Congress , Constitutional Law , Courts , Politics , Supreme Court 19 Comments

Respectfully submitted by Lawrence Rafferty(rafflaw)-Guest Blogger

Ever since the legal challenges to the Affordable Care Act, or as it is better known, Obamacare began, the pundits have kept a scoreboard on which courts have approved of the individual mandate to buy insurance, and which courts have disapproved of the constitutionality of the mandate.  The latest Appellate Court to come down with its decision was the Court of Appeals for the District of Columbia.  It may not surprise anyone that the court came down in favor of the legislation approving the individual mandate, but it may surprise you just who comprised that appellate panel. Continue reading ‘Conservative Take on Obamacare’

How Much Privacy Do You Expect? The Death of Privacy In America

Published 1, November 13, 2011 Congress , Constitutional Law , Courts , Criminal law , Politics , Society , Supreme Court 43 Comments

Below is my column today in The Washington Post. The article explores the famed Katz test and whether, in trying to save privacy in America, the Supreme Court may have laid the seeds for its destruction. The test ties our privacy protections to our privacy expectations. Thus, as our expectations falls, warrantless surveillance rises — causing our expectations again fall and in turn allowing warrantless surveillance to rise further. It becomes a face to the bottom of privacy. The terrible truth is that the death of privacy in America will not be accompanied by thunderous applause, but a collective yawn from an indifferent people. Here is the column.
Continue reading ‘How Much Privacy Do You Expect? The Death of Privacy In America’

The Establishment Clause And Utah Crosses

Published 1, November 12, 2011 Constitutional Law , Religion , Supreme Court 30 Comments

-Submitted by David Drumm (Nal), Guest Blogger

The Establishment Clause is that portion of the FIrst Amendment that states: “Congress shall make no law respecting an establishment of religion.” The meaning of the phrase “an establishment of religion” is the subject of much debate. If the phrase is changed slightly to read: “the establishment of religion”, the meaning would refer to the act of establishing a religion. However, the use of the word “an” changes the meaning. With “an”, the meaning now refers to a religious establishment. Congress can make no law respecting a religious establishment.

Continue reading ‘The Establishment Clause And Utah Crosses’

Holdings, Dicta, And Stare Decisis

Published 1, October 23, 2011 Courts , Lawyering , Supreme Court 1,347 Comments

-Submitted by David Drumm (Nal), Guest Blogger

Holdings, or ratio decidendi (Latin for “the rationale for the decision), are those parts of a court’s opinion that are binding on lower courts and later courts. This binding is referred to as the doctrine of stare decisis which provides hierarchical (vertical) and temporal (horizontal) continuity throughout the judicial system. Obiter Dicta (Latin for a statement “said in passing”), or dicta, are those parts of a court’s opinion that are not binding on lower courts and later courts. Dicta may suggest an interpretation of the law that may prove useful in future cases.

Continue reading ‘Holdings, Dicta, And Stare Decisis‘

Arizona v. Gant (2009)

Published 1, October 16, 2011 Constitutional Law , Supreme Court 11 Comments

-Submitted by David Drumm (Nal), Guest Blogger

The Fourth Amendment often appears to be on life support, however in Arizona v. Gant, it got a slight reprieve. The Supreme Court voted 5-4 with Stevens, joined by Scalia, Souter, Thomas, and Ginsburg voting in the majority. Not the usual grouping for a 5-4 decision. This case involves the search-incident-to-arrest exception to the Fourth Amendment’s protection against unreasonable searches.

Continue reading ‘Arizona v. Gant (2009)’

Obama and Civil Liberties: Talk of the Nation

Published 1, October 10, 2011 Constitutional Law , Courts , International , Media , Politics , Supreme Court 78 Comments

Today, I will appearing on the National Public Radio (NPR) program, Talk of the Nation to discussing my column in the Los Angeles Times on Barack Obama’s disastrous impact on civil liberties in the United States. The piece has generated some interesting discussion on the LA Times blog as well as other blogs. Despite my disagreement with some of the commenters, any discussion of civil liberties is welcomed in this political atmosphere. Ironically, the day of the column (which specifically discussed the President’s assertion of his right to kill citizens he considers terrorists), President Obama ordered the killing of U.S. cleric Anwar al-Aulaqi and reportedly a second U.S. born cleric. [Update: Here is the TOTN interview].

Continue reading ‘Obama and Civil Liberties: Talk of the Nation’

The Hit List: The Public Applauds As President Obama Kills Two Citizens As A Presidential Prerogative

Published 1, October 4, 2011 Columns , Congress , Constitutional Law , International , Military , Politics , Society , Supreme Court , USA Today 136 Comments

Below is today’s column in USA Today (to run in paper form on Wednesday) on President Barack Obama’s claim to the right to kill citizens as dangers to the nation. Ironically, the day after I wrote the Los Angeles Times column on Obama’s disastrous impact on the civil liberties movement in the United States (including his assertion of the right to kill citizens on his own authority), the U.S. killed two citizens in Yemen. Notably, Ron Paul (who has emerged as the only candidate discussing these issues from a civil libertarian perspective) suggested an impeachment inquiry based on the killing of the two citizens. Below is the column in USA Today.
Continue reading ‘The Hit List: The Public Applauds As President Obama Kills Two Citizens As A Presidential Prerogative’

Separation of Church and State? Not on the 2012 Campaign Trial

Published 1, October 2, 2011 Constitutional Law , International , Politics , Religion , Society , Supreme Court 87 Comments

Below is today’s column in the Washington Post (Sunday) exploring the growing infusion of religious pitches and policies in the presidential campaign. With the anniversary this week of the Danbury letter, this is a particularly good time to take account of the condition of the wall of separation. Today is also the day of the “Red Mass,” the annual religious service held with members of the Supreme Court before the start of their term and leading Republican and Democratic politicians. While the separation of church and state is not mentioned in the Constitution, this exchange cemented the phrase in our legal and cultural lexicon. The piece below does not delve into the meaning of the First Amendment and whether it can be read broadly or narrowly given its language and history. Even if one accepts that the establishment clause was only designed to prevent the creation of an official church, there remains the long-standing principle in politics and government against the intermingling of church and state. To put it simply, religion is back in politics. While the targeted religious minorities may have changed from Baptists to Muslims, the fight over separation has resumed with the same politicized piety that once tore this country apart.
Continue reading ‘Separation of Church and State? Not on the 2012 Campaign Trial’

Recent American History According to Cheney

Published 1, September 18, 2011 Constitutional Law , Courts , Criminal law , International , Justice , Military , Politics , Society , Supreme Court , Things That Tick Me Off 18 Comments

Respectfully submitted by Lawrence Rafferty(Rafflaw)-Guest Blogger

 

I admit that I get a headache when I read any news about former Bush administration officials, but it seems that former Vice President Dick Cheney is in the news again and I am left scrambling for my migraine medicine.  He has written a book detailing all the wonderful things he accomplished as Vice President under George W. Bush.  Unfortunately for Mr. Cheney, in his efforts to explain his work as Vice President under George W. Bush, he may have provided an admission of some of the alleged lies that critics claim were being spread by Cheney and the Bush administration in the lead up to war in Iraq.  Continue reading ‘Recent American History According to Cheney’

Cherokee Tribe Asserts Right To Expel Blacks

Published 1, September 14, 2011 Congress , Constitutional Law , Courts , International , Society , Supreme Court 26 Comments

The Cherokee Tribe is in an interesting confrontation with the federal government over the right of the tribe to ban 2,800 African Americans from its citizenship rolls. Joe Crittenden, the tribe’s acting principal chief, insists that the Bureau of Indian Affairs has challenged the sovereignty of the tribe and “The Cherokee Nation will not be governed by the BIA.”

Continue reading ‘Cherokee Tribe Asserts Right To Expel Blacks’

District Court Finds Hierarchy Of Privacy Interests

Published 1, September 3, 2011 Constitutional Law , Courts , Supreme Court 9 Comments

-Submitted by David Drumm (Nal), Guest Blogger

In the case of United States v. Johnson, four law enforcement officers conducted a “knock and talk” at a residence in Smyrna, Tennessee after an anonymous tip indicating that the residents possessed marijuana and a firearm. Johnson and his wife, Karen, emerged from the bedroom and the officers sought consent to search the house. Karen gave consent but Johnson did not consent (disputed by the officers). The officers searched the house and found a handgun, counterfeit money, and 100 grams of marijuana.

Continue reading ‘District Court Finds Hierarchy Of Privacy Interests’

Ninth Circuit Appeals Court Rules In Favor Of Teacher Who Criticized Creationism

Published 1, August 21, 2011 Academics , Constitutional Law , Courts , Supreme Court 21 Comments

-Submitted by David Drumm (Nal), Guest Blogger

We have previously discussed the case of Dr. James Corbett, a history teacher at Capistrano Valley high school, who was sued over comments he made when he referred to creationism as “superstitious nonsense.” A three-judge panel for The United States Court of Appeals for the Ninth Circuit unanimously ruled that the district court’s judgement on the constitutionality of Corbett’s statements be vacated. The appeals court affirmed the district court’s finding that Corbett was entitled to qualified immunity.

Continue reading ‘Ninth Circuit Appeals Court Rules In Favor Of Teacher Who Criticized Creationism’

Can We All Get Along?

Published 1, August 6, 2011 Academics , Columns , Constitutional Law , Courts , Criminal law , Justice , Lawyering , Politics , Society , Supreme Court 171 Comments

Submitted by: Mike Spindell, guest blogger

 

“People, I just want to say, you know, can we all get along?” Rodney King 5/1/92

 

The arguments and divisions politically here and throughout this country are rampant and destructive. Anger and hatred of others of differing opinions rises at times to fever pitch and I admit that I am part of the problem as much as anyone else is. This is a somewhat different piece in that I am going to present some national problems, as I see them and elicit your comments on them, in an attempt to discover whether there is some common ground agreement, on some things plaguing our society. While I am more interested in whether or not people agree that these are indeed problems for us all to consider and work to solve, it is certainly apropos for people to comment on what they believe the solutions to be.

 This is an experiment on the viability of people agreeing on the premise that a problem exists in a given area. We cannot begin to resolve issues, unless we first agree that they are issues to be contemplated by the entire body politic. My hope is to engender real, civil discussion and perhaps at the end reach something like consensus. This is not a plea for Bi-Partisanship because to me that is a fantasy, whoever may utter it. To be “partisan” is to hold strong opinions and srong opinions do not resolve themselves into agreement. The resolution reached by “partisans” is always one of compromise, without either side changing their core beliefs, but agreeing to take part of the loaf. I am “experimenting” to see if many of the diverse viewpoints represented here can at least agree that a specific issue is indeed a problem, or if it is indeed an issue. Beyond writing this, I will not take part in the ensuing discussion,  since the formulation itself indicates my views on whether these are indeed problems. I will limit my questions to legal issues, with no particular order of importance intended.

Continue reading ‘Can We All Get Along?’

Information-Seeking Stop Was Unconstitutional

Published 1, August 5, 2011 Constitutional Law , Courts , Supreme Court 14 Comments

-Submitted by David Drumm (Nal), Guest Blogger

A trooper with the Maine State Police clocked a red Pontiac doing 71 MPH in a 45 MPH zone. As the trooper was making a turn to pursue the Pontiac, a motorcycle passed him. After a brief pursuit the trooper lost sight of the Pontiac and arrived at a fork in the road. After proceeding a brief distance and not seeing the Pontiac, the trooper returned to the fork and saw the motorcycle, operated by Ronald A. LaPlante.

Continue reading ‘Information-Seeking Stop Was Unconstitutional’

Five Fullerton Cops Beat Homeless Man To Death

Published 1, July 30, 2011 Supreme Court , Things That Tick Me Off 106 Comments

-Submitted by David Drumm (Nal), Guest Blogger

Kelly Thomas, a 37-year-old homeless schizophrenic, is shown on the left, after his confrontation with Fullerton California police officers, and on the right before his brutalization. He was taken to UC Irvine Medical Center in Orange County in critical condition on life-support and died five days later. Kelly was unarmed, had a slight build, and of medium height.

Continue reading ‘Five Fullerton Cops Beat Homeless Man To Death’

NY’s Marriage Equality Act Sees First Court Challenge

Published 1, July 25, 2011 Courts , Justice , Lawyering , Politics , Religion , Supreme Court 16 Comments

Submitted by Mark Esposito, Guest Blogger

In This Corner: NY Governor Andrew Cuomo ...

A coalition of conservative groups filed for an injunction in a Livingston County, New York Supreme Court (a trial court in NY parlance) asking the judge to overturn New York’s same-sex marriage law. New Yorker’s for Constitutional Freedom (NYCF) seek to enjoin operation of the law claiming that procedural requirements for the legislation were ignored, legislators were promised huge campaign contributions in exchange for their vote by NYC Mayor Bloomberg, and that Governor Andrew Cuomo violated the three-day review period by falsely issuing a “message of necessity” to the Legislature to speed up passage of the legislation. Through their lawyers, Liberty Counsel, the conservative action group also claims the public and lobbyists were shut out of the process.

Continue reading ‘NY’s Marriage Equality Act Sees First Court Challenge’

New Toy For The National Surveillance State

Published 1, July 24, 2011 Constitutional Law , Society , Supreme Court 31 Comments

-Submitted by David Drumm (Nal), Guest Blogger

The new toy is Automatic License Plate Reader/Recognition (ALPR), and a cool toy it is. It basically reads every license plate its cameras see and compares that data to a list. That list might contain the license plates of stolen vehicles, the license plates of drivers with suspended licenses or no insurance, and “Amber Alerts.” This all happens automatically, in real-time.

The systems also stores the date and time of every license plate and the corresponding GPS coordinates, even for law-abiding citizens. Therein lies the potential for abuse.

Continue reading ‘New Toy For The National Surveillance State’

Privacy Without Politics: Why The Sister Wives Lawsuit Is About Privacy Not Polygamy

Published 1, July 21, 2011 Constitutional Law , Courts , Criminal law , Free Speech , Politics , Religion , Society , Supreme Court 78 Comments

Here is my column this morning in the New York Times. As is the case (even on my own paper, USA Today), the writer does not select the titles. In this case, “One Big, Happy Polygamous Family” seems a bit mocking. Thus, I have added my own title.
Continue reading ‘Privacy Without Politics: Why The Sister Wives Lawsuit Is About Privacy Not Polygamy’

DOJ: Decrypt Your Files Or Go To Jail

Published 1, July 16, 2011 Constitutional Law , Courts , Supreme Court 61 Comments

-Submitted by David Drumm (Nal), Guest Blogger

With the Fourth Amendment a mere shadow of its former self, its time to apply the same erosional process to the Fifth Amendment. The Justice Department has asked a federal judge to compel Ramona Fricosu, charged with bank fraud, wire fraud, and money laundering related to a mortgage scam, to decrypt the files on a laptop found during a raid on her home. Fricosu now faces the cruel trilemma: perjure herself by claiming she doesn’t know the passphrase, incriminate herself by decrypting the files, or face contempt of court for refusing to decrypt.

Continue reading ‘DOJ: Decrypt Your Files Or Go To Jail’

The Interior Of Your Car Is A Public Place

Published 1, July 10, 2011 Constitutional Law , Courts , Criminal law , Supreme Court 29 Comments

-Submitted by David Drumm (Nal), Guest Blogger

In Indiana, an intoxicated passenger in a car pulled over by police, is guilty of public intoxication.

Indiana code defines public intoxication as being “in a public place or a place of public resort in a state of intoxication caused by . . . use of alcohol . . . .”

Continue reading ‘The Interior Of Your Car Is A Public Place’

AT&T Mobility v. Concepcion: Has Consumer Protection Law Been Preempted?

Published 1, July 3, 2011 Congress , Justice , Supreme Court 6 Comments

Submitted by Mike Appleton, Guest Blogger

“All animals are equal but some animals are more equal than others.”

-George Orwell, “Animal Farm”

The Supreme Court’s decision in the Walmart class action case has understandably generated controversy for its adverse impact on the litigation of workplace discrimination claims.  But the Walmart case is not nearly as far reaching in its implications as the decision issued by the Supreme Court on April 27, 2011 in AT&T Mobility, LLC v. Concepcion, 563 U.S. _____ (2011).  The opinion in Concepcion confirms two truths.  First, Justice Antonin Scalia is firmly committed to federalism except when he isn’t.  Second, corporate America is well on its way to usurping the common law and state statutory law intended to protect the interests of aggrieved consumers. Continue reading ‘AT&T Mobility v. Concepcion: Has Consumer Protection Law Been Preempted?’

Supreme Court Grants Cert In GPS Tracking Case

Published 1, July 2, 2011 Constitutional Law , Courts , Supreme Court 25 Comments

-Submitted by David Drumm (Nal), Guest Blogger

The case is United States v. Jones which concerns FBI agents who planted a GPS tracking device on Jones’ car and monitored the car’s position every ten seconds for an entire month, without a warrant. A jury found Jones, and co-defendant Maynard, guilty of a single count of conspiracy to distribute and to possess with intent to distribute five or more kilograms of cocaine and 50 or more grams of cocaine base.

Continue reading ‘Supreme Court Grants Cert In GPS Tracking Case’

Illegal Immigrants and the Bill of Rights

Published 1, June 26, 2011 Constitutional Law , Courts , Supreme Court 41 Comments

-Submitted by David Drumm (Nal), Guest Blogger

Do illegal immigrants have a Second Amendment right to own guns? In the case of United States v. Portillo-Munoz, the U.S. Court of Appeals for the Fifth Circuit held that illegal immigrants are not part of the “people” protected by the Second Amendment and have no constitutional right to bear arms.

Continue reading ‘Illegal Immigrants and the Bill of Rights’

Supreme Court Rules In Favor Of Wal-Mart in Important Discrimination Case

Published 1, June 20, 2011 Courts , Society , Supreme Court 43 Comments

As anticipated, the Supreme Court ruled unanimously in favor of Wal-Mart in an important workplace discrimination case. The Court divided 5-4 in adopting more stringent standards for future cases. From the outset, I viewed this as an extremely bad case that would likely make bad law for those fighting workplace discrimination. It now has.

Continue reading ‘Supreme Court Rules In Favor Of Wal-Mart in Important Discrimination Case’

Members of Congress Challenge Libyan War in Federal Court

Published 1, June 15, 2011 Congress , Constitutional Law , International , Justice , Lawyering , Media , Military , Politics , Society , Supreme Court 102 Comments

Today, I have the honor of representing ten members of the United States House of Representatives in challenging the constitutional basis for the Libyan War — and the underlying claims made by President Obama. These members include Democrats and Republicans from across the political spectrum. They share a belief that Article I, Section 8 of the Constitution expressly requires the authorization of Congress before a president can commit the nation to war. The lawsuit will be heard in the United States District Court for the District of Columbia. We filed this afternoon and held a press conference with the members in front of the courthouse. A copy of the complaint (which will be heard by Judge Reggie Walton) is below.

Continue reading ‘Members of Congress Challenge Libyan War in Federal Court’

Suspicionless Searches: Florida Targets Welfare Recipients

Published 1, June 5, 2011 Constitutional Law , Politics , Society , Supreme Court 42 Comments

Submitted by Mike Appleton, Guest Blogger

The Florida legislature has been accused of doing nothing to address the state’s serious unemployment problem.  But the cumulative output of the recently completed 2011 session will keep constitutional lawyers busy for quite some time.  One case in point is a bill signed by Gov. Rick Scott on May 31st that is certain to face a legal challenge.  Public law 2011-081, set to go into effect on July 1st as Section 414.0652 of the Florida Statutes, requires every Florida resident who applies for benefits under the Temporary Assistance for Needy Families (TANF) program, the federal successor to the former Aid to Families with Dependent Children (AFDC) welfare system, to submit to drug testing for controlled substances.  The cost of the testing must be paid by the applicant and a positive result will disqualify the applicant from receiving benefits for one year.  The new law raises serious concerns under the Fourth and Fourteenth Amendments to the U.S. Constitution and their counterparts in the Florida constitution, including the personal right of privacy enshrined in Article I,  Section 23 of the latter document. Continue reading ‘Suspicionless Searches: Florida Targets Welfare Recipients’

The Right to Record

Published 1, May 28, 2011 Constitutional Law , Courts , Supreme Court 17 Comments

-Submitted by David Drumm (Nal), Guest Blogger

Since the infamous videoing of the Rodney King beating, the power of the video to publicize police brutality, and the subsequent risk of legal and financial repercussions, has led states to criminalize the recording of police. With the proliferation of cell phones cameras and the ability to upload to YouTube, the risk for police is even greater today. If the police have nothing to hide, then there should be no objection to recording them performing their public duties.

Continue reading ‘The Right to Record’

Today’s Picture of the Week

Published 1, May 20, 2011 Supreme Court 10 Comments

Jeff Boal, visiting from Weaverville California, took this picture in front of the Supreme Court recently that seems to confirm the view of many on the current trend of the Court.
Continue reading ‘Today’s Picture of the Week’

An Effective Solution to Illegal Immigration

Published 1, May 15, 2011 Congress , Politics , Supreme Court 413 Comments

-Submitted by David Drumm (Nal), Guest Blogger

While Republicans have been trying to leech the credit for the killing of Osama bin Laden, President Obama has upstaged them by laying out his immigration reform plan. This is a signature political issue that the Republicans have tried to make their own. However, the E-Verify program will test whether they really want to solve the problem or whether, like bin Laden, they’re more interested in maintaining the issue for its political usefulness.

Continue reading ‘An Effective Solution to Illegal Immigration’

John Yoo Calls the Kettle Black

Published 1, April 30, 2011 Constitutional Law , Courts , Justice , Politics , Supreme Court 31 Comments

Submitted by Lawrence Rafferty, (rafflaw), Guest Blogger

Earlier this month, President Barack Obama announced that he was considering an Executive Order that would mandate that all contractors who receive Federal money must disclose their political contributions.  Since I am not a big fan of Executive Orders and since President Obama was not a big fan of Executive Orders when he was a candidate, I was not especially enthralled about the possibility of another Executive Order.  However, once I read what the proposed Executive Order was going to do, I have to admit that I embraced it with open arms. Continue reading ‘John Yoo Calls the Kettle Black’

Will the Supreme Court’s Decision in AT & T Mobility v. Concepcion Bring an End to Class Action Lawsuits Against Large Corporations?

Published 1, April 30, 2011 Constitutional Law , Supreme Court 63 Comments

Submitted by Elaine Magliaro, Guest Blogger

Last Wednesday, the Supreme Court handed down its ruling in the case of AT & T Mobility v. Concepcion.  The justices split along ideological lines once again. The 5 to 4 decision came down on the side of corporations—and most likely eliminated the right of citizens to band together to bring class action lawsuits against large corporations.

The Concepcion case involved cellphones and a common type of contract that requires customers to press their claims through arbitration instead of through lawsuits. As reported by Robert Barnes in The Washington Post, these types of contracts “which mandate individual rather than group claims, are becoming standard for companies offering loans, cable service, credit cards and even employment.”

Continue reading ‘Will the Supreme Court’s Decision in AT & T Mobility v. Concepcion Bring an End to Class Action Lawsuits Against Large Corporations?’

Can Smartphones Be Searched Incident to Arrest?

Published 1, April 30, 2011 Constitutional Law , Criminal law , Supreme Court 20 Comments

-Submitted by David Drumm (Nal), Guest Blogger

In the 1969 case Chimel v. California, the Supreme Court, in a 7-2 decision, held that an “arresting officer may search the arrestee’s person to discover and remove weapons and to seize evidence to prevent its concealment or destruction.” The search also included “the area “within the immediate control” of the person arrested, meaning the area from which he might gain possession of a weapon or destructible evidence.” This case created the Chimel rule allowing warrantless searches incident to a lawful arrest.

Continue reading ‘Can Smartphones Be Searched Incident to Arrest?’

Griswold v. Connecticut (1965)

Published 1, April 17, 2011 Constitutional Law , Supreme Court 10 Comments

-Submitted by David Drumm (Nal), Guest Blogger

Estelle Griswold

Considering the recent and ongoing opposition of many Republicans to contraception, a review of this landmark 7-2 Supreme Court decision was conceived. The case involved a Connecticut law that prohibited the use of contraceptives by married couples. The Appellants were Estelle Griswold, Executive Director of the Planned Parenthood League of Connecticut, and C. Lee Buxton, a licensed physician and professor at the Yale Medical School, who served as Medical Director for the League at its Center in New Haven.

Continue reading ‘Griswold v. Connecticut (1965)’

CONNICK V. THOMPSON AND PROSECUTORIAL IMPUNITY

Published 1, April 10, 2011 Constitutional Law , Criminal law , Supreme Court , Torts 402 Comments

Submitted by Mike Appleton, Guest Blogger

John Thompson spent 18 years in prison, 14 of them on death row, following convictions for attempted armed robbery and murder in separate incidents. A scant month before the scheduled execution, an investigator hired by Thompson’s lawyers made a startling discovery in the crime lab archives: a lab report which completely exonerated Thompson on the attempted robbery charge. Continue reading ‘CONNICK V. THOMPSON AND PROSECUTORIAL IMPUNITY’

The Hedge of Separation?

Published 1, April 9, 2011 Religion , Supreme Court 16 Comments

-Submitted by David Drumm (Nal), Guest Blogger

Statue of Roger Williams

The earliest North American advocate of the separation between church and state was Roger Williams who founded not only the first Baptist Church on the continent, but also the colony of Rhode Island. In his 1644 book, The Bloody Tenent of Persecution, Williams used the phrase “[A] hedge or wall of separation between the garden of the church and the wilderness of the world.”

Fortunately, Thomas Jefferson didn’t use “hedge” in his famous letter in reply to the Danbury Baptists. However, “hedge” does fit into Williams’ metaphor that uses garden and wilderness.

Continue reading ‘The Hedge of Separation?’

Fifth Circuit Rules Against Lawyer and Client in Public Criticism of An Indictment and Its Motivations

Published 1, April 8, 2011 Constitutional Law , Criminal law , Politics , Society , Supreme Court 29 Comments

The United States Court of Appeals for the Fifth Circuit has handed down a ruling against both a client and his lawyer for the violation of a gag order. The ruling against Don Hill, the former Dallas official, and his lawyer, Ray Jackson, could have implications for lawyers defending their clients in public against alleged governmental misconduct. Hill was given 30 days on top of the 18-year prison sentence in 2009 for corruption and Jackson was given a $5,000 fine levied by the trial court as well as a 120-day suspension from any client appointments in the Northern District of Texas

Continue reading ‘Fifth Circuit Rules Against Lawyer and Client in Public Criticism of An Indictment and Its Motivations’

Boumediene v. Bush (2008)

Published 1, April 3, 2011 Constitutional Law , Supreme Court 12 Comments

-Submitted by David Drumm (Nal), Guest Blogger

Lakhmar Boumediene

Boumediene v. Bush was a 5-4 Supreme Court decision with the majority opinion written by Justice Kennedy. The case was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held at Guantánamo for six years.

Continue reading ‘Boumediene v. Bush (2008)’

Talley v. California (1960) and Anonymous Blogging

Published 1, March 12, 2011 Supreme Court 29 Comments

-Submitted by David Drumm (Nal), Guest Blogger

Thanks to the internet, free speech has never been more in evidence. Blogs and their comments sections enable anyone with internet access to speak their mind. The anonymity provided by the IP address encourages people to write what they think. The Supreme Court held that the First Amendment protects the right to speak anonymously in a case that bears the name of Manuel Tulley, who founded the Los Angeles chapter of the Congress of Racial Equality.

Continue reading ‘Talley v. California (1960) and Anonymous Blogging’

Ashcroft v. al-Kidd

Published 1, March 6, 2011 Constitutional Law , Courts , Criminal law , Justice , Lawyering , Supreme Court 31 Comments

Submitted by Lawrence Rafferty, (rafflaw), Guest Blogger

I have been concerned lately about the Constitutional attacks that we have discussed here on Prof. Turley’s blog. One case that I have noticed lately received very minimal main stream media attention and it concerns a vitally important issue. This past week the ACLU argued a case in the Supreme Court that challenges the government’s use of the Federal material witness statute to pick-up and hold in detention an American citizen named al-Kidd who was arrested by Federal authorities in 2003 and detained for over two weeks without a charge. Continue reading ‘Ashcroft v. al-Kidd’

Justice Thomas’ Dangerous Conceit

Published 1, March 6, 2011 Congress , Constitutional Law , Courts , Lawyering , Media , Politics , Society , Supreme Court 50 Comments

Here is today’s column in the Los Angeles Times (Sunday) on the recent remarks from Justice Clarence following criticism for his disclosure violations and alleged conflicts of interest.
Continue reading ‘Justice Thomas’ Dangerous Conceit’

Plyler v. Doe (1982) and Jurisdiction

Published 1, March 5, 2011 Supreme Court 13 Comments

-Submitted by David Drumm (Nal), Guest Blogger

Plyler v. Doe was a case in which the Supreme Court decided that, under the Equal Protection Clause, Texas could not deny the children of undocumented aliens access to public schools.

The vote was 5-4. More interestingly, by a vote of 9-0, the court addressed the meaning of “jurisdiction” as found in the Fourteenth Amendment.

Continue reading ‘Plyler v. Doe (1982) and Jurisdiction’

Supreme Court Rules In Favor of Westboro Church

Published 1, March 2, 2011 Constitutional Law , Politics , Society , Supreme Court 95 Comments

In an important reaffirmation of the free speech, the Supreme Court has ruled 8-1 in favor of the Westboro Baptist Church. Westboro is infamous for its deranged, homophobic protests at funerals of falled U.S. troops. In an opinion by Chief Justice John Roberts, the Court refused to allow the universal disgust at Westboro’s views influence its decision. Only Justice Samuel Alito was willing to radically curtail free speech to punish Westboro.
Continue reading ‘Supreme Court Rules In Favor of Westboro Church’

Supreme Court Upholds Use of Dying Statements as “Non-Testimonial” Evidence

Published 1, March 1, 2011 Constitutional Law , Courts , Criminal law , Supreme Court 33 Comments

The Supreme Court has ruled that a mortally wounded man’s dying statement is “non-testimonial” and can be used to convict a man of murder. The ruling, written by Justice Sonia Sotomayor raised serious concerns under the confrontation clause of the Constitution. Notably, the strongest voice against the ruling came from Justice Antonin Scalia. Justice Kagan did not participate in the decision in Michigan v. Bryant.

Continue reading ‘Supreme Court Upholds Use of Dying Statements as “Non-Testimonial” Evidence’

Thomas Condemns His Critics As Undermining The Supreme Court

Published 1, February 28, 2011 Bizarre , Justice , Lawyering , Media , Politics , Society , Supreme Court 87 Comments

Supreme Court Justice Clarence Thomas has reportedly unleashed an attack on his critics for his violations of disclosure laws and alleged conflicts of interest. He warned law students that these critics are “undermining” the Court and endangering the country by weakening core institutions. As one of those critics, I am flabbergasted by Thomas’ remarks which show an implied disregard that seems to have now reached open contempt for certain principles of judicial ethics. There is not a hint of concern for his own conduct and how it has undermined the Supreme Court as an institution. For a prior column, click here

Continue reading ‘Thomas Condemns His Critics As Undermining The Supreme Court’

Ethics and The Supreme Court

Published 1, February 19, 2011 Congress , Constitutional Law , Courts , Justice , Politics , Supreme Court 39 Comments

Submitted By Lawrence Rafferty, (rafflaw) Guest Blogger

 

Professor Turley has recently discussed the ethical problems raised by Supreme Court Justices Scalia and Thomas by their attendance and participation in fund raisers for conservative groups.  In addition, Justice Thomas’ wife has also come under criticism for working for a lobbying group that benefitted from the Citizen United decision.  With all of the potential conflicts of interest that these Supreme Court Justices are involved in, it looks like someone is finally attempting to rein in the Justices and make them subject to the Judicial Conference’s Code of Conduct which all other Federal Judges have to adhere to. Continue reading ‘Ethics and The Supreme Court’

The Right’s War on Women

Published 1, February 13, 2011 Congress , Constitutional Law , Justice , Politics , Religion , Supreme Court 359 Comments

Submitted by Lawrence Rafferty, (rafflaw), Guest Blogger

 
I don’t think Barry Goldwater would recognize Conservatism or his Republican Party if he was alive today. Conservatism used to mean belief in safe and sound economic spending and freedom for all from governments getting too large and too restrictive on personal freedoms. Recently we have seen Republicans offer up a brand new and dangerous definition of rape in an attempt to restrict abortions and to restrict government money being used to pay for them. Now we are seeing another Republican attempt to restrict the use of contraceptives under the guise of ending the alleged use of Federal funds to pay for abortions.

Continue reading ‘The Right’s War on Women’

Profit From Behind The Supreme Court Bench?

Published 1, February 6, 2011 Constitutional Law , Courts , Justice , Lawyering , Politics , Supreme Court 31 Comments

Submitted By Lawrence Rafferty, (rafflaw), Guest Blogger

I will be honest. I am not a big fan of Supreme Court Justice Clarence Thomas and as of late, I have had the same less than positive feelings about his wife, Virginia Thomas.  According to a recent Think Progress article, Justice Thomas’ vote on the Citizens United case has allowed his wife’s “consultant” company to profit by educating its customers on the best political causes to invest, I mean, donate to .

Continue reading ‘Profit From Behind The Supreme Court Bench?’

The Ford Pinto Act: Is The White House Claim of “Activism” Fair?

Published 1, February 3, 2011 Congress , Constitutional Law , Courts , Lawyering , Politics , Religion , Society , Supreme Court , USA Today 19 Comments

Here is my column in USA Today (which was posted yesterday but will run in print on Monday) on the charge that Judge Vinson is an activist after his striking down of the entire health care plan. While I did not view the opinion as particularly strong in its substantive analysis and did not like the rhetoric flourishes (as discussed with Lawrence O’Donnell this week), I find the charge of activism to be a bit forced over the issue of severability.
Continue reading ‘The Ford Pinto Act: Is The White House Claim of “Activism” Fair?’

Scalia and the Rise of the Celebrity Justice: Should Justices Have a Political Base?

Published 1, January 23, 2011 Congress , Courts , Justice , Lawyering , Media , Politics , Society , Supreme Court 31 Comments

Here is today’s column in the Washington Post on the controversy over Justice Scalia’s appearance on Monday in a Tea Party Caucus event for new House members. I view the issue as having broader implications for the Court.
Continue reading ‘Scalia and the Rise of the Celebrity Justice: Should Justices Have a Political Base?’

Snyder v. Phelps

Published 1, January 22, 2011 Constitutional Law , Religion , Supreme Court 37 Comments

-Submitted by David Drumm (Nal), Guest Blogger

This case was argued before the Supreme Court on 6 Oct. 2010 and we are awaiting their decision. This is the “funeral picketing” case involving Petitioner Albert Snyder, the father of Lance Corporal Matthew Snyder who was killed in Iraq, and Respondent Rev. Fred Phelps of the Westboro Baptist Church.

 

Continue reading ‘Snyder v. Phelps’

Should Scalia and Thomas Be Retroactively Recused From Citizens United?

Published 1, January 20, 2011 Congress , Constitutional Law , Courts , Justice , Lawyering , Media , Politics , Society , Supreme Court 57 Comments

I just participated in a press conference (with Stanford Professor Deborah Rhode) dealing with Common Cause’s letter (below) asking the Justice Department to look into alleged conflicts of interest related to Justices Scalia and Thomas in the Citizens United case. Common Cause identified extremely serious issues related to the participation of Scalia and Thomas in events organized by Koch Industries CEO Charles Koch as well as Ginny Thomas’ involvement in Liberty Central.

Continue reading ‘Should Scalia and Thomas Be Retroactively Recused From Citizens United?’

Are Michael Mukasey, Tom Ridge and Rudy Giuliani Aiding and Abetting the Enemy?

Published 1, January 16, 2011 Courts , Justice , Supreme Court 44 Comments

Submitted by Lawrence Rafferty (rafflaw), Guest Blogger

 

I realize that one man’s terrorist is another man’s freedom fighter, but when organizations are added to the Federal government’s list of Terrorist Organizations, the Supreme Court has determined that any assistance to that organization is a criminal act. Even a speech in support of that particular group can be a criminal act.  http://www.supremecourt.gov/opinions/09pdf/08-1498.pdf   http://www.nytimes.com/2011/01/03/opinion/03cole.html?_r=1   It seems that in December of 2010, former Attorney General Michael Mukasey along with former Homeland Security Director Tom Ridge and Rudy Giuliani, a former Mayor of New York City and a former Presidential candidate, all spoke at a conference in Paris in support of the Mujahedeen Khalq.  The Mujahedeen Khalq is an Iranian dissident group that the State Department has labeled as a terrorist organization.  http://www.state.gov/s/ct/rls/other/des/123085.htm 

Continue reading ‘Are Michael Mukasey, Tom Ridge and Rudy Giuliani Aiding and Abetting the Enemy?’

Are Child Labor Laws Unconstitutional in The Tea Party World?

Published 1, January 15, 2011 Congress , Constitutional Law , Politics , Supreme Court 134 Comments

Submitted by Lawrence Rafferty(rafflaw), Guest Blogger

 

We have seen and heard on many occasions the Tea Party claim that it desires Congress and the Federal Government to follow the letter of the Constitution instead of reaching beyond the four corners of the document.  With that thought in mind, I was intrigued by a recent article on the Think Progress site that reviewed the You Tube video claims made by U.S. Senator Mike Lee of Utah, that Congress’ passage of laws outlawing and restricting Child Labor, was unconstitutional. http://thinkprogress.org/2011/01/14/lee-child-labor/?wpmp_switcher=desktop

Continue reading ‘Are Child Labor Laws Unconstitutional in The Tea Party World?’

Kentucky v. King

Published 1, January 8, 2011 Constitutional Law , Supreme Court 19 Comments

-Submitted by David Drumm (Nal), Guest Blogger

Oral arguments will be presented next week in a case involving the exigent circumstances exception to the Fourth Amendment. The idea behind the exigent circumstances exception is to relieve the police from the necessity of getting a warrant in cases involving emergencies. Emergencies such as when a suspect is destroying evidence or when police are in hot pursuit of a suspect.

The facts of the case:

Continue reading ‘Kentucky v. King’

Herrera v Oregon

Published 1, January 1, 2011 Constitutional Law , Supreme Court 16 Comments

-Submitted by David Drumm (Nal), Guest Blogger.

Herrera v Oregon is a pending case before the Supreme Court, where Alonso Herrera, an Oregon man, was convicted by 10-2 jury vote of unauthorized use of a vehicle. At issue is whether the Sixth Amendment, as incorporated against the states by the Fourteenth Amendment, requires a unanimous jury verdict to convict a person of a crime. Also at issue is whether the Bill of Rights, as incorporated against the states by the Fourteenth Amendment, should apply equally to the states as to the federal government, jot-for-jot incorporation. It is long overdue that these issues be resolved.

Continue reading ‘Herrera v Oregon’

Publish or Perish Prosper: Law Professors Win Millions Over “Sham” Update of West Treatise

Published 1, December 21, 2010 Academics , Bizarre , Constitutional Law , Criminal law , Supreme Court , Torts 11 Comments

Law professors David Rudovsky of the University of Pennsylvania and Leonard Sosnov of Widener University have won an extraordinary verdict: $5.2 million in compensatory and punitive damages for defamation by West Publishing. At issue was a shoddy 2008 pocket part issued under their names. Rudovsky (left) called the update a “poorly researched ‘sham’ pocket part.”

Continue reading ‘Publish or Perish Prosper: Law Professors Win Millions Over “Sham” Update of West Treatise’

Mandatory Health Care Provision Struck Down As Unconstitutional

Published 1, December 13, 2010 Bizarre , Congress , Constitutional Law , Politics , Society , Supreme Court 77 Comments

U.S. District Judge Henry Hudson in Richmond, Virginia had struck down the centerpiece of the national health care plan: the mandatory requirement that all citizens get health care coverage. The lengthy 42-page opinion details how the law falls outside of interstate commerce jurisdiction — the concern that I previously voiced in a column.

Continue reading ‘Mandatory Health Care Provision Struck Down As Unconstitutional’

THE PORTEOUS IMPEACHMENT: FINAL ARGUMENTS

Published 1, December 7, 2010 Academics , Congress , Constitutional Law , Courts , Criminal law , Justice , Politics , Society , Supreme Court 54 Comments

The United States Senate will convene with all 100 members this morning for the final arguments in the impeachment of Judge G. Thomas Porteous. Final motions arguments will commence at 9:45 am on the Senate floor.
Continue reading ‘THE PORTEOUS IMPEACHMENT: FINAL ARGUMENTS’

Top 100: ABA Top Blog Competition Begins

Published 1, November 29, 2010 Academics , Animals , Bizarre , Columns , Congress , Constitutional Law , Courts , Criminal law , Environment , International , Justice , Lawyering , Media , Military , Politics , Religion , Science , Society , Supreme Court , Testimony , Things That Tick Me Off , Torts , Uncategorized , USA Today 134 Comments

It is that time of the year for our annual blawgletting — the ABA top blog competition. We have once again been selected as one of the top 100 legal blogs (of over 3000) and nominated for the IMHO (opinion) category and it is time to release our minions upon the field of blog battle. Vote here to defend our way of life and the future of the planet.

Continue reading ‘Top 100: ABA Top Blog Competition Begins’

Take My Scalia, Please!

Published 1, November 27, 2010 Bizarre , Courts , Justice , Lawyering , Supreme Court 17 Comments

Just ran across this gem. Who is the funniest Supreme Court Justice? A 2005 study reported in the New York Times has the answer. Boston University Professor J.D. Wexler has conducted a survey of the transcripts of  SCOTUS oral arguments, and … drum roll, please … Justice Antonin Scalia is the semi-official “Court Jester,” with 77 laughs. Justice Stephen Breyer came in second with 45, and Justice Ginsburg quipped in just four laughs. Bringing up the rear was the “Harpo Marx” of the troupe, Justice  Clarence Thomas, who added zero Continue reading ‘Take My Scalia, Please!’

Alito Criticized For Participation In Another Conservative Fundraiser

Published 1, November 16, 2010 Bizarre , Courts , Politics , Society , Supreme Court 50 Comments

Last night on Rachel Maddow, I discussed the controversy over Supreme Court justices attending political fundraisers. Specifically, Justices Scalia, Thomas, and Alito have been criticized for their participation in such events. Most recently, Justice Samuel Alito was identified by Think Progress at a fundraiser for American Spectator. Alito reportedly said that “it’s not important” that he attends such events. I disagree.
Continue reading ‘Alito Criticized For Participation In Another Conservative Fundraiser’

Citizens United Ruling Brings on “Tsunami of Sewer Money”

Published 1, November 3, 2010 Constitutional Law , Politics , Supreme Court 15 Comments

Guest Blogger: Elaine Magliaro

In the subtitle of his Salon article “The Predictable Tsunami of Sewer Money,” Joe Conason asks the following: “Was the Supreme Court ruling in Citizens United naively mistaken–or cynically partisan?” Good question.

In January, Justice Anthony Kennedy wrote: “With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

Karl J. Sandstrom, a former FEC commissioner who provides advice to Democrats on election law has said: “The biggest change this year is that it is no longer possible to identify the individuals who are responsible for funding election communications.” Sandstrom believes that Justice Kennedy’s opinion was naïve and reflected a “very uninformed view of how disclosure works.”

Continue reading ‘Citizens United Ruling Brings on “Tsunami of Sewer Money”’

Supreme Court Accepts Case Involving Anna Nicole Smith’s Probate Claim — For The Second Time

Published 1, September 29, 2010 Bizarre , Society , Supreme Court 5 Comments

While there are hundreds of thousands of probate cases each year in the United States, the Supreme Court has decided to take up the case of Anna Nicole Smith for the second time to determine if her estate should get part of the fortune from her late Texas oil baron husband.
Continue reading ‘Supreme Court Accepts Case Involving Anna Nicole Smith’s Probate Claim — For The Second Time’

PORTEOUS IMPEACHMENT TRIAL — DAY TWO

Published 1, September 14, 2010 Congress , Constitutional Law , Courts , Criminal law , Justice , Lawyering , Politics , Society , Supreme Court 62 Comments

The second day of the Senate trial for United States District Court Judge Thomas Porteous starts today. The witness list include Lori and Louis Marcotte . . .
Continue reading ‘PORTEOUS IMPEACHMENT TRIAL — DAY TWO’

Federal Court Strikes Down Defense of Marriage Act As Unconstitutional

Published 1, July 9, 2010 Columns , Constitutional Law , Courts , Politics , Society , Supreme Court 20 Comments

In a major ruling, United States District Court Judge Joseph L. Tauro has struck down the 1996 Defense of Marriage Act (DOMA) defining lmarriage as a union exclusively between a man and a woman. The bill was supported and signed by former President Bill Clinton. Tauro was appointed to the bench by President Nixon back in 1972.
Continue reading ‘Federal Court Strikes Down Defense of Marriage Act As Unconstitutional’

Obama Administration Challenges Arizona Law

Published 1, July 6, 2010 Congress , Constitutional Law , Courts , Criminal law , Politics , Society , Supreme Court 95 Comments

The Obama Administration filed a challenge of the Arizona immigration law in a move that comes with great legal and political risks. As noted in a recent column, the Arizona law remains quite popular around the country and the Administration will be in the unenviable position of arguing that increased enforcement conflicts with its own policies. Legally, the Justice Department will have to make out a case for implied preemption.

Continue reading ‘Obama Administration Challenges Arizona Law’

Supreme Court Rules Against Christian Law Students

Published 1, June 28, 2010 Constitutional Law , Politics , Religion , Society , Supreme Court 23 Comments

In another 5-4 decision, the Supreme Court ruled against Christian law students at Hastings Law School in Christian Legal Society v. Martinez. Justice Ginsburg ruled that Christian students must adhere to non-discrimination policies if they are to accept funding or benefits from the school.

Continue reading ‘Supreme Court Rules Against Christian Law Students’

Supreme Court Extends Second Amendment to the States

Published 1, June 28, 2010 Congress , Constitutional Law , Politics , Society , Supreme Court 86 Comments

In a 5-4 decision, the United States Supreme Court has effectively struck down Chicago’s gun law and extended its earlier ruling on the Second Amendment to all states as a fundamental right. It is the decision that some of us anticipated as consistent with past rulings on fundamental rights. The impact will be considerable as all states will now have to respect the individual right of gun ownership under the Second Amendment.
Continue reading ‘Supreme Court Extends Second Amendment to the States’

Show Time: Kagan Hearings Begin Today

Published 1, June 28, 2010 Congress , Constitutional Law , Courts , Politics , Supreme Court 26 Comments

Today the Senate will begin one of the longest running Kabuki shows in history. Supreme Court nominee Elena Kagan goes to the Senate Judiciary Committee for her confirmation hearings — a process long ridiculed for its ritualized and exaggerated content. The big question is whether Kagan will abandon her previously stated position that nominees should have to answer substantive questions on their views — a rejection of the so-called “Ginsburg Rule.” I will be commenting on the confirmation process at noon on MSNBC and later on Countdown.
Continue reading ‘Show Time: Kagan Hearings Begin Today’

Supreme Court Rules In Favor Of Expansive Reading of Material Support Law

Published 1, June 22, 2010 Constitutional Law , Courts , International , Lawyering , Politics , Society , Supreme Court 29 Comments

The Supreme Court rejected first amendment claims and upheld a federal law on providing “material support” to foreign terrorist organizations in Holder v. Humanitarian Law Project. The material support law (found in the 1996 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)) is the darling of prosecutors and widely ridiculed by civil libertarians for allowing virtually any act to be classified as material support. The ruling is a victory for Supreme Court nominee Elena Kagan and a loss for civil liberties. Notably, however, even the conservatives on the Court found the interpretation of the Obama Administration to be too extreme.

Continue reading ‘Supreme Court Rules In Favor Of Expansive Reading of Material Support Law’

Confirmation-Lite: Clinton Library May Not Turn Over Documents For Kagan Confirmation Hearings

Published 1, May 21, 2010 Bizarre , Constitutional Law , Politics , Society , Supreme Court 18 Comments

Some of us have long complained that confirmation hearings have become a rather bad joke (here) — carefully choreographed events devoid of substance. While many of us thought it could not positively become more content-free, it has. The director of the William J. Clinton Presidential Library and Museum has announced that the library cannot possibly turn over the prior writings of nominee Elena Kagan from her prior government service in time for the June 28, 2010 hearings. Rather than move the date, the Senate Judiciary Committee and White House appear intent on holding a hearing without the burden of knowledge of Kagan’s prior writings. Given her wafer-thin record of writing as an academic, that will guarantee a confirmation hearing that makes Dancing With the Stars looks like a tenure review meeting.

Continue reading ‘Confirmation-Lite: Clinton Library May Not Turn Over Documents For Kagan Confirmation Hearings’

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