Category: Columns

Columns, Congress, Constitutional Law, Courts, Politics, Supreme Court

Confounding Its Critics: The Supreme Court Issues A Line Of Inconveniently Non-Ideological Opinions
Fred Schilling, US Supreme Court

Below is my column in The Hill on decisions issued by the Supreme Court in recent weeks and how they have served as a retort to those who are calling for court packing or major changes in the institution. As noted below, we expect to see more ideological divisions emerge this and next week in some of the outstanding “big ticket” decisions. However, the Court seems to have front-loaded a line of cases refuting the arguments that it is dysfunctionally and hopelessly divided along ideological lines.  Today, the Supreme Court issued two more nearly unanimous decisions (with only Justice Sotomayor concurring and dissenting in part in both decision). The decisions were Terry v. United States and Greer v. United States.

Here is the column:

Continue reading “Confounding Its Critics: The Supreme Court Issues A Line Of Inconveniently Non-Ideological Opinions” →

Columns, Constitutional Law, Justice, Media, Politics

A “Slippery, Bootlicking A.G.”? The Media Goes Silent As Garland Adopts Previously Denounced Positions Of Barr

Below is my column in The Hill on the recent decisions of Attorney General Merrick Garland to support the prior positions taken by his predecessor, William Barr, on issues ranging from the Lafayette Park protests to immigration to withholding information related to the Mueller investigation. Positions that were once denounced by media and legal experts as raw partisanship have now been adopted by the Biden Administration with little acknowledgement from those same figures.

Here is the column:

Continue reading “A “Slippery, Bootlicking A.G.”? The Media Goes Silent As Garland Adopts Previously Denounced Positions Of Barr” →

Columns, Congress, Constitutional Law, Media, Politics

An Ideal Rule for the Age of Rage? Critics May Be Making the Best Argument For Keeping The Filibuster

Below is my column in the Hill on the future of the filibuster and why this may be the most credible period for the use of such a compromise-forcing rule. There have always been good-faith arguments against the use of such a rule as inhibiting democratic voting. After all, the rule blocks bare majority voting. However, with a razor-thin margin in both houses, the use of such a rule can help force greater dialogue and compromise in Congress, which most voters indicate that they want in polls. It now appears that Sen. Joe Manchin (D., W.V.) will block the federal voting rights legislation even without a filibuster. As a result he was attacked as a “not very bright” aider and abetter and “cowardly, power-hungry white guy” by the left. Sen. Dick Durbin’s press secretary on the Judiciary Committee even curiously declared that democracy should not be “in the hands of a man who lives in a house boat.” The furious response explains why Manchin has been one of just two Democrats willing to demand compromise. The Republicans have roughly the same number willing to push from that side. However, combined these senators are seeking bipartisan agendas in a deeply divided nation. Killing the filibuster will remove the key pressure to seek bipartisan approaches.

Here is the column:

Continue reading “An Ideal Rule for the Age of Rage? Critics May Be Making the Best Argument For Keeping The Filibuster” →

Columns, Constitutional Law, Courts

Federal Court Strikes Down California’s Assault Weapons Ban

For many years, I have been critical of politicians running on promises of sweeping gun control legislation that would violate controlling case law under the Second Amendment. After every mass shooting, politicians pledge that they will get guns out of society when they know that such promises mislead voters on the range of permissible action in the area. In reality, the range of permissible legislative action is quite limited. Moreover,  limits on things like clip capacity are unlikely to make a significant difference in gun violence. Now, a federal judge has struck down California’s three-decade-old ban on assault weapons as a violation of the Second Amendment. The decision could be raised in the ongoing consideration of the nomination of David Chipman, who President Joe Biden wants to head the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

Continue reading “Federal Court Strikes Down California’s Assault Weapons Ban” →

Columns, Constitutional Law, Media, Military, Politics

“To Support and Defend The Constitution of the United States”: Micheal Flynn’s Crisis Of Constitutional Faith

Below is my column in USA Today on the disturbing comments of former National Security Adviser Michael Flynn in favor of a military coup. He later insisted that he was misquoted but the videotape confirms that he was for a military coup before he was against it last week. It is certainly positive to see Flynn deny support for a military coup, but the incident is the latest example of our growing addiction to rage — and the loss of our common constitutional faith.

Here is the column:

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Columns, Constitutional Law, Politics, Supreme Court

The Curious Ruling In Van Buren v. United States: The Supreme Court Defies Critics With Another Consensus Ruling
Fred Schilling, Collection of the Supreme Court

A curious thing just happened on the Supreme Court when it issued the sole decision of the day. The 6-3 decision of the Supreme Court in Van Buren v. United States is not one of the blockbuster decisions that are being eagerly awaited in the coming days. The case involving computer fraud is interesting to some of us for its says about the intricacies of the federal statute. However, it is even more interesting in what it says about intricacies of the Court. In its line up of justices, the Supreme Court is again speaking loudly to critics who are demanding court packing and radical transformations of the Court. As I recently discussed regarding the release of a series of unanimous decisions, the Court could be speaking as an institution to remind the public that they are not nearly as partisan as their critics. Continue reading “The Curious Ruling In Van Buren v. United States: The Supreme Court Defies Critics With Another Consensus Ruling” →

Columns, Constitutional Law, Courts, Criminal law, Media, Politics

Bowser’s About Face: The District Admits Using Tear Gas Against Protesters and Seeks To Dismiss BLM’s Lafayette Park Lawsuit

Below is my column in the Hill on the District of Columbia not only admitting that it used tear gas on June 1 last year near Lafayette Park, but also defending the use as entirely appropriate to enforce the curfew order of Mayor Muriel Bowser. The media has avoided on the story despite Bowser’s previous condemnations of the alleged use of tear gas that night by the federal agencies. (The federal agencies claimed to have use pepper balls but the affect is largely the same). Both the Bowser and Biden Administrations are seeking to dismiss the Black Lives Matter lawsuit. Yet, the host of legal experts and media who condemned the use of tear gas and the clearing  of the Lafayette park area last year are entirely silent on the disclosures.

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Academia, Columns, Constitutional Law, Courts, Society, Supreme Court

Will Eliminating Standard Tests Really Reduce Racial Disparities In Education?

Below is my column in The Hill newspaper on the announcement that the University of California will now join the “test-blind” movement and end the use of the SAT and ACT in its admissions decisions. Some have called for the change to increase diversity in the schools, particularly after California voters refused to change the long ban on affirmative action in education under state law.

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Columns, Free Speech, Politics

Facebook: People Will Now Be Allowed To Discuss Whether Covid-19 Originated In Wuhan Lab

Read that headline a couple times. There was a time when such a headline would only appear on The Onion, but it is true. Facebook has long banned anyone who discussed the evidence that a worldwide pandemic killing millions and destroying the global economy may have been released from a government lab in Wuhan, China. Facebook would not allow the theory to be discussed as “debunked” despite widespread criticism that Facebook was, again, engaging in corporate censorship. The false claim that this theory was “debunked” was pushed by various media platforms as part of the criticism of then President Donald Trump and his Administration. Now however Dr. Anthony Fauci and others have acknowledged that there is a basis to suspect the lab as the origin of the outbreak. So now Facebook will allow you to talk about it. Continue reading “Facebook: People Will Now Be Allowed To Discuss Whether Covid-19 Originated In Wuhan Lab” →

Columns, Society, Torts

Dr. Fauci Emerges As An Unlikely Witness For Trump In The “China Flu” Case

Below is my column in The Hill newspaper on the statement of Dr. Anthony Fauci and others that the origin of Covid-19 could well have been the virology lab in Wuhan, China. The increasing recognition of that theory could make a recent lawsuit against former President Donald Trump more of an opportunity than a liability. Indeed, Trump’s counsel may secretly want the flawed complaint by the Chinese American Civil Rights Coalition to survive standing and other threshold challenges in order to secure a ruling on the use of terms like the “China flu.”

Here is the column:

Continue reading “Dr. Fauci Emerges As An Unlikely Witness For Trump In The “China Flu” Case” →

Columns, Constitutional Law, Courts, Politics

Preference or Prejudice? Federal Court Finds Biden Administration Is Engaged In Racial and Gender Discrimination
(White House Photo/Adam Schultz)

Below is my column in The Hill on the recent decision of a federal judge that the Biden Administration was engaged in racial and gender discrimination in the administration of the pandemic relief under the American Rescue Plan Act. It is a question that is now being raised in a variety of federal programs under the Biden Administration. Continue reading “Preference or Prejudice? Federal Court Finds Biden Administration Is Engaged In Racial and Gender Discrimination” →

Columns, Congress, Constitutional Law, Courts, Politics, Society, Supreme Court

The Big One? The Supreme Court Accepts Case That Could Deliver A Lethal Blow To Roe

Below is my column in The Hill newspaper on the Supreme Court accepting a major new challenge over abortion with Dobbs vs. Jackson Women’s Health Organization.  After years of exaggerated coverage of the threat of past cases, this could well be “the big one” for pro-life advocates seeking to substantially curtail Roe and Casey.

Here is the column:

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Bizarre, Columns, Politics

Ohio’s Vaccine Lottery: How DeWine Converted Federal Funds Into A State Giveaway

Below is my column in USA Today on the announcement that Ohio will be using federal relief funds for a lottery giveaway to lure people to take the vaccine.  In the meantime, New York City announced it would give out an array of free items, including a seven-day free Metro card. I have little doubt that such programs can increase participation but the use of millions of federal funds for a give-away program raises issues worthy of debate. However, the lack of any significant limit on spending of these federal funds has made such lotteries possible.

Here is the column:

Continue reading “Ohio’s Vaccine Lottery: How DeWine Converted Federal Funds Into A State Giveaway” →

Columns, Congress, Constitutional Law, Free Speech, International, Media

The “Bonkers” Interview Of Bonny Prince Harry: Why The Attack On The First Amendment Should Concern Americans

The media went into a frenzy this weekend when the bonny Prince Harry gave a huge Hurrumpf to the First Amendment. On a show appropriately called “the Armchair Expert,” Harry declared the First Amendment “bonkers” and expressed frustration of how it protects the media in its “feeding frenzy” over his life. Harry’s criticism of the First Amendment can be dismissed as the unfamiliarity of a royal refugee. However, it is actually far more serious than that. Harry and his American wife Meghan Markle have attacked media rights in England and succeeded under the laws of the United Kingdom. They are now joining a growing anti-free speech and free press movement in the United States. Continue reading “The “Bonkers” Interview Of Bonny Prince Harry: Why The Attack On The First Amendment Should Concern Americans” →

Columns, Congress, Criminal law, Media, Politics

Welcome To The DarkSide: Why The Biden Administration Will Not Define The Pipeline Attack As Terrorism
(Official White House Photo by Adam Schultz)

Below is my column on the recent Colonial Pipeline attack. President Joe Biden and his Administration (as well as the media) has referred to the actors as “criminals” and “hacker” but notably not “terrorists.” Many cyberattacks are forms of extortion. They seek money from businesses to release data.  This is different. This was an effort to coerce a population; to cause economic chaos.

Notably, DarkSide announced that it would shutdown its operations after receiving the ransom, an announcement heralded by many. It is a dubious claim. First, the declaration serves assure the public and to tamp down calls for a global hunt for the culprits. Second, it is meaningless. Whether DarkSide continues as a moniker or as a functioning organization, we just paid off terrorists. We long maintained a policy not to yield to terrorism because it fuels more attacks. DarkSide and other such attacks have proven how ineffective we are in preventing such attacks or defying such demands. These are despicable people willing to cause deaths and social disarray, but they are also rationale actors.  For the moment, cyber terrorism works and the success of this attack is not going to lead to a unilateral ceasefire from cyber gangs.

Here is the column: Continue reading “Welcome To The DarkSide: Why The Biden Administration Will Not Define The Pipeline Attack As Terrorism” →

Res ipsa loquitur – The thing itself speaks