Category: Constitutional Law

“Some are More Equal Than Others”: University of Oregon Sued After Blocking Professor Who Posted “All Men are Created Equal”

There is an interesting lawsuit filed against the University of Oregon after Portland State University Professor Bruce Gilley was blocked from a social media account. Gilley claims that he was blocked  after he tweeted “all men are created equal.” The lawsuit names Tova Stabin, communication manager for the university’s Division of Equity and Inclusion, as the sole defendant. Gilley may believe that “all men are equal” but the censoring of his post suggests that, as in Orwell’s Animal Farm, “some are more equal than others” at the University of Oregon.

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Rhodes Alumni Launch Campaign to Remove Justice Barrett from School’s Hall of Fame

Rhodes College

The petition by an alumni group at Rhodes College is seeking to remove Supreme Court Justice Amy Coney Barrett from the school’s “Hall of Fame” due to her vote in the Dobbs decision overturning Roe v. Wade. The petition accuses Barrett of violating the school’s honor code by testifying untruthfully in her confirmation hearing. In reality, the letter engages in gross misrepresentations of her testimony in the latest attack on her character and honesty. It is a letter that should be condemned by people regardless of their view of reproductive rights.  The letter also declares Justice Barrett to be a threat to democracy because she holds opposing views on constitutional interpretation. Continue reading “Rhodes Alumni Launch Campaign to Remove Justice Barrett from School’s Hall of Fame”

Is “Inconceivable” Provable? The Justice Department Needs More Than a Vizzini Charge to Prosecute Trump

Below is my column in the Hill on the ongoing federal grand jury investigation reportedly looking into January 6th and potential criminal charges against former president Donald Trump. If there is an indictment, it cannot be based on a Vizzini charge that it is simply “inconceivable” that anyone would believe that there was widespread election fraud. Notably, a new Harvard study has found that most people who went to the Capitol on January 6th did so in loyalty to Trump rather than to engage in insurrection. Millions continue to believe that the election was stolen. However, any case would likely be tried in Washington, D.C., which constitutes arguably the worst possible jury pool politically for the former president.

Here is the column:

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“Rebalance the Bench”: Democrats Introduce Sweeping Changes for the Supreme Court

Democratic members have continued their unrelenting attacks on the Supreme Court and its conservative majority. This week, Senate and House members have introduced a bill to impose term limits, regularized confirmation schedules, and other changes. In introducing the legislation, Sen. Sheldon Whitehouse (D., R.I.), Rep. Hank Johnson (D., Ga.), and others have left no question that this is just the latest effort to change the balance of the Court in favor of a liberal majority. Such comments make the bill seem like little more than legislative graffiti. Continue reading ““Rebalance the Bench”: Democrats Introduce Sweeping Changes for the Supreme Court”

Schiff: The Committee Could Subpoena Ginni Thomas About Justice Thomas

There was a telling exchange today on CBS’ Face the Nation when host Margaret Brennan asked J6 Committee member Rep. Adam Schiff (D-CA) about issuing a subpoena of Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas.  I have previously written how the calls for Justice Thomas to resign or be impeached are wildly out of line with ethical and constitutional standards. What was interesting, however, was how Schiff justified such an unprecedented subpoena: to question her about one of Thomas’ opinions dealing with the authority of Congress to investigate what occurred on that day. Continue reading “Schiff: The Committee Could Subpoena Ginni Thomas About Justice Thomas”

South Carolina Legislators Move to Criminalize Sharing Abortion Information

The South Carolina legislature is moving to enact a new law with deeply troubling free speech implications. Following the Jackson Women’s Health Organization v. Dobbs decision overturning Roe, the legislators have sought to criminalize any effort to ”aid, abet or conspire with someone” to obtain an abortion. That apparently includes sharing information over the Internet or other communication systems. In my view, the law violates the First Amendment and should be scuttled by the legislature. Otherwise, it would likely be struck down by the courts.

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Federal Court Enjoins “Assault Gun” Ban in Boulder County, Colorado

As various states move to pass controversial new gun control laws after the decision in New York State Rifle & Pistol Association v. Bruen, one such law was just enjoined by a federal court in Colorado. In Rocky Mountain Gun Owners v. SuperiorDistrict Judge Raymond P. Moore granted a motion for a preliminary injunction to stop enforcement of the law enacted by the town of Superior, Colorado to ban on the sale or possession of a wide array of guns. Continue reading “Federal Court Enjoins “Assault Gun” Ban in Boulder County, Colorado”

The Court of Public Opinion: Justice Kagan Suggests that the Court is Losing Legitimacy by Being Out of Step with Public Opinion

Supreme Court Justice Elena Kagan made a curious and concerning comment this week about how the Supreme Court’s legitimacy depends on the consistency of its judicial opinions with public opinion. It was a comment that seemed consistent with the criticism of Sen. Elizabeth Warren (D., Mass.) that the Court was improperly departing from “widely held public opinion.” Warren used the complaint to justify her call for raw court packing to produce an instant liberal majority. I am frankly astonished by the statement of Justice Kagan which runs against the entire purpose of the Court as, at times, a countermajoritarian institution designed to follow the constitution rather than the polls.

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“Offer Large Sums of Public Money”: Law Professor Calls for Congress to “Buyout” Conservative Justices

Critics of the Supreme Court have tried every means to change the balance or decisions of the Court from threats of impeachment to harassing justices at homes or restaurants.  Some of these reckless measures have been encouraged by law professors, including a Georgetown law professor who encouraged more “aggressive” measures targeting the justices.  Now, Seton Hall Law Assistant Dean Brian Sheppard has called for Congress to “buyout” justices by offering them “large sums of money.” If needed, he suggests that President Joe Biden could scrape up the dough to prompt justices to cash in and get out.

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“He’s a Public Employee. Fire his A**”: Critics Call for Harbaugh to be Canned for Coming Out as Pro-Life

University of Michigan football head coach Jim Harbaugh is facing calls for his termination after he went public with his pro-life views. Harbaugh is a devout Catholic and said that “I believe in having the courage to let the unborn be born.” The response has been overwhelming and furious, but it is unlikely that Harbaugh (who just signed signed a 5-year, $36.7 million contract) will be canned. It is an interesting comparison to the successful campaign recently to force a NFL coach to withdraw his comments about Jan. 6th. Yet, if critics had their way, both coaches would be fired for holding dissenting views on such issues. Continue reading ““He’s a Public Employee. Fire his A**”: Critics Call for Harbaugh to be Canned for Coming Out as Pro-Life”

“This Unchains the President”: Sen. Merkley Calls for Biden To Circumvent the Congress

When Madison described the essence of his constitutional vision of the separation of powers in Federalist 51, he declared “Ambition must be made to counteract ambition.” Madison believed that the three branches would preserve the balance of the Constitution by using the institutional interests of each branch to jealously protect their inherent powers. He clearly did not envision many of our current leaders in Congress who often call for presidents to circumvent their own institution when they are unable to prevail with legislation. The latest example is Sen. Jeff Merkley (D, Ore.). Continue reading ““This Unchains the President”: Sen. Merkley Calls for Biden To Circumvent the Congress”

“Be Aggressive and Go All the Way”: Abortion Could be Headed Back to the Supreme Court

Below is my column in the Hill on how the next round of post-Roe litigation is coming into sharper focus. At the center of this fight will be the question of who controls doctors in any given state.

Here is the column:

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Democrats’ Second Amendment ‘Syndrome’ Plan: Plotting the Next Big Fight over Gun Rights

Below is my column in the Hill on the next round of litigation over the Second Amendment. New York and other states quickly moved to exploit the concurrence of Justice Brett Kavanaugh (who was joined by Chief Justice John Roberts) that state officials believe contains a loophole for greater gun limitations based not on the weapons but the places where they can be taken.

Here is the column:

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“This is a Moment”: Dobbs and the Realities of the Post-Roe World

Below is my column in USA Today on misleading claims made about the recent abortion ruling in Dobbs v. Jackson Women’s Health Organization and the existing protections for women on issues ranging from travel to contraceptives. There are good-faith concerns over the reasoning and implications of the decision. There is no need to raise unfounded fears over issues like interstate travel or contraceptives. The President and the Court appear in agreement. The time is now for citizens to vote on the issue of abortion and any limitations placed on that state-based right.

Here is the column:

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Rep. Katie Porter Hit With Ethics Complaint Over Attack on Witness

Heritage Foundation President Kevin Roberts has filed an ethics complaint with the Office of Congressional Ethics against Rep. Katie Porter (D., Cal.) after her allegation that a witness lied under oath in opposing gun laws three years ago in a hearing. In a hearing this month, she made the allegation against Heritage Foundation legal fellow and Second Amendment expert Amy Swearer. The exchange between Swearer and Porter went viral on the Internet with many liberals praising Porter for the exchange. A closer examination shows that the attack was unfair and unfounded. It is also an increasingly common part of congressional hearings as members seek to intimidate or abuse expert witnesses who hold opposing views. While these ethical complaints are difficult to maintain under the generous rules of the House, Porter’s conduct warrants condemnation. Continue reading “Rep. Katie Porter Hit With Ethics Complaint Over Attack on Witness”