Category: Constitutional Law

Could the Maxwell Conviction Be Thrown Out Over Juror Misconduct?

Ghislaine Maxwell’s conviction has been widely celebrated as bringing some justice to the victims of Jeffrey Epstein. However, that moment may prove fleeting in light of a startling disclosure made by one of the jurors to Reuters this week. A juror identified only by his first two names (“Scotty David”) admitted that he was able to sway fellow jurors by discussing his own experience with abuse. It is not clear if he disclosed that prior abuse on the juror questionnaire as part of the voir dire process. The disclosure could give Maxwell a strong argument for reversal if the prior abuse was not revealed and was then used in the jury room to pursue the jury after it deadlocked in its proceedings. Update: Both defense counsel and the government are now calling for a formal inquiry into the allegations on this juror.

Continue reading “Could the Maxwell Conviction Be Thrown Out Over Juror Misconduct?”

Tick, Tick, Tick…: The Supreme Court Readies an Explosive Docket for 2022

Below is my column in the Hill on upcoming year for the Supreme Court. The Court’s docket is likely to put the institution at ground zero of a heated election year. Major decisions on abortion and gun rights are expected by June 2022. Even with Chief Justice John Roberts denouncing attempts at “inappropriate political influence” on the Court, the threats of Court packing and other measures are likely to become even more shrill as these decisions rollout in the new year.

Here is the column: Continue reading “Tick, Tick, Tick…: The Supreme Court Readies an Explosive Docket for 2022”

New York Announces That Scarce Covid-19 Treatments Will Be Prioritized For Non-White Patients

New York may have triggered a new constitutional challenge with its policy to prioritize non-white people in the distribution of certain COVID-19 treatments. There are growing shortages due to a failure of the Biden Administration to anticipate the demand for monoclonal antibody treatment and antiviral pills as well as testing kits. New York’s Department of Health has responded to this shortage with a policy that will make race one of the prioritizing factors in distributing available resources. The policy, in my view, raises serious constitutional concerns over racial preferences in the supply of potentially life-saving treatments. Continue reading “New York Announces That Scarce Covid-19 Treatments Will Be Prioritized For Non-White Patients”

“Inappropriate Political Influence”: Chief Justice John Roberts Responds to Threats Against the Court

Chief Justice John Roberts used his year-end report on New Year’s Eve to denounce the threats being made against the Court and its members by Democratic politicians and groups, including threats to pack the Court to force an immediate liberal majority. Roberts referred to such threats as efforts to exercise “inappropriate political influence” on the Court in contravention of our constitutional values and traditions. Continue reading ““Inappropriate Political Influence”: Chief Justice John Roberts Responds to Threats Against the Court”

Is the “Workaround” Working? Federal Judge Enjoins Another Biden Mandate in Texas

The Supreme Court is preparing for arguments on January 7th in three cases looking at the legality of the vaccine mandate issued by the Occupational Safety and Health Administration (OSHA). Courts have split on what White House Chief of Staff Ron Klain admits was a “workaround” of the limits on the President’s authority. Lower courts, however, are still adding potential mandate cases for expedited consideration. On New Year’s Eve, Judge James “Wesley” Hendrix of the U.S. District Court Northern District of Texas enjoined the mandate issued under the Head Start programs by the Biden administration. The opinion follows the same general analysis as many of the prior cases in finding that this “workaround” will not work. Continue reading “Is the “Workaround” Working? Federal Judge Enjoins Another Biden Mandate in Texas”

New York Considers Legislation to Curtail Free Speech in the Name of Democracy

The great civil libertarian Justice Louis Brandeis once warned that “the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” New York State Democrat Senator Brad Holyman is one of those “men of zeal.” With the approaching anniversary of the Jan. 6th riots, he has proposed a new law that would legislate an even greater level of censorship to prevent the “social media amplification” of views that are deemed harmful or “disinformation.”  It is only the latest example of our “whatever it takes” politics.

Continue reading “New York Considers Legislation to Curtail Free Speech in the Name of Democracy”

“Dire” for Democracy? New York Mag Columnist Decries the Popularity of Chief Justice Roberts

“Aggressively Individualistic”: Miami Law Professor Proposes a “Redo” of the First and Second Amendments

Bill of RightsWe have been discussing the growing attack on free speech in this country, including a widespread movement in academia to curtail free speech rights. Indeed, this movement largely began on college campuses and spread to social media, politics, and journalism. It is now an article of faith for the left to demand censorship or the regulation of speech in the name of social justice. University of Miami’s Mary Anne Franks has a simple solution, and The Boston Globe wants people to consider it: just gut the First and Second Amendments. That’s right, the problem with the Bill of Rights, according to Franks, is that it is too “aggressively individualistic” so the solution is to “redo” the work of the Framers to be more woke compliant.  All of those pesky constitutional rulings in favor of free speech rights will then fall away and society can move on with social justice unimpeded by constitutional niceties. Continue reading ““Aggressively Individualistic”: Miami Law Professor Proposes a “Redo” of the First and Second Amendments”

New York’s Circular Firing Squad: Gun Groups Sue Over Latest Legislative Misfire

Below is my column in The Hill on New York’s latest gun control measure — and the latest challenge to a New York law. What is most striking in reviewing the line of gun cases coming out of New York is that the Empire State has done more for gun rights than any “pro-gun” state. Indeed, if you look at the cases expanding gun rights, New York is the greater enabler of Second Amendment expansion of any state. The reason is that these legislative measures are propelled by political rather than legal judgment. For gun owners, New York is proof of what Napoleon Bonaparte advised “Never interrupt your enemy when he is making a mistake.”  The gun nuisance law is the latest in a long line of mistakes by New York.

Here is the column: Continue reading “New York’s Circular Firing Squad: Gun Groups Sue Over Latest Legislative Misfire”

The Rise of Gotcha Legislation: Newsom and DeSantis are Legislating Soundbites and Voters are Loving it.

Below is my column in The Hill on the recent bills proposed in Florida and California on immigration and guns. The bills are the latest examples of “gotcha legislation,” though the Florida bill could raise some interesting legal questions if Gov. Ron DeSantis moves forward with his plan on relocating undocumented persons to Delaware.

Here is the column: Continue reading “The Rise of Gotcha Legislation: Newsom and DeSantis are Legislating Soundbites and Voters are Loving it.”

Destroying the Court to Save it: Warren Calls For Packing the Supreme Court With a Liberal Majority

This week, Sen. Elizabeth Warren (D., Mass.) finally buried her former persona as a law professor. In a transition that began in 2011, Warren has struggled with the demands of politics that often pit her against core legal principles. Warren’s final measure of devotion to politics came in her Boston Globe op-ed where she called for the Supreme Court to be packed with a liberal majority. She justified her call by denouncing the court for voting wrongly on decisions and, perish the thought, against “widely held public opinion.” Of course, the Framers designed the courts to be able to resist “widely held public opinion” and, yes, even the Congress. Warren’s solution is to change the Court to make it more amenable to the demands of public (and her) opinion. Some of us have been discussing the expansion of the Court for decades. However, there is a difference between court reform and court packing. What Democratic members are demanding is raw court packing to add four members to the Court to give liberals an instant majority — a movement denounced by figures like the late Justice Ruth Bader Ginsburg and Justice Stephen Breyer. Last year, House Judiciary Committee Chair Jerry Nadler, D-N.Y., Sen. Ed Markey, D-Mass, and others stood in front of the Supreme Court to announce a court packing bill to give liberals a one-justice majority.  This follows threats from various Democratic members that conservative justices had better vote with liberal colleagues . . . or else. Sen. Jeanne Shaheen, D-N.H., recently issued a warning to the Supreme Court: reaffirm Roe v. Wade or face a “revolution.”  Sen. Richard Blumenthal previously warned the Supreme Court that, if it continued to issue conservative rulings or “chip away at Roe v Wade,” it would trigger “a seismic movement to reform the Supreme Court. It may not be expanding the Supreme Court, it may be making changes to its jurisdiction, or requiring a certain numbers of votes to strike down certain past precedents.”

Senate Majority Leader Chuck Schumer also declared in front of the Supreme Court “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price.”For her part, Rep. Alexandria Ocasio-Cortez, D-N.Y. questioned the whole institution’s value if it is not going to vote consistently with her views and those of the Democratic party: “How much does the current structure benefit us? And I don’t think it does.”Warren seems to be channeling more AOC than FDR. Roosevelt at least tried to hide his reckless desire to pack the Court by pushing an age-based rule. It was uniquely stupid. The bill would have allowed Roosevelt to add up to six justices for every member who is over 70 years old. Warren, like AOC, wants the Democratic base to know that she is pushing a pure, outcome-changing court packing scheme without even the pretense of a neutral rule.

Despite the fact that the Court has more often voted on non-ideological lines (and regularly issued unanimous decisions), Warren denounced the Court as an “extremist” body that has “threatened, or outright dismantled, fundamental rights in this country.” Those “fundamental” values do not apparently include judicial independence.

What is most striking is Warren’s use of a clearly false premise: that the Republicans packed the Court first: “This Republican court-packing has undermined the legitimacy of every action the current court takes.” She is referring to the Republicans refusing to vote on the nomination of Merrick Garland during the Obama Administration. Many of us criticized the lack of a Senate vote at the time. However, that is not court packing. It did not add seats to the Court. The Senate has the constitutional authority to vote or not to vote on a nominee. It was perfectly constitutional. What Warren is advocating is the addition of seats to the Court, which the Congress can do but most voters oppose as unprincipled and dangerous.

For Warren to call the Garland controversy “court packing” is all that you have to know about her column. She knows that that was not court packing, just as she knows that court packing is fundamentally wrong.  However, the Warren op-ed was her Rubicon where she crossed over from being a law professor to being a politician.

That transition has not been an easy one for Warren. As an academic, Warren was described as a “die-hard conservative” who was a leading advocate for corporations.  All of that had to go when she decided to seek the Democratic nomination for the Senate. Even more has to go if you seek the Democratic nomination for president (an even greater priority now as Democrats and media figures seek alternatives to President Biden).

Academics often evolve in their views of constitutional or statutory issues. However, Warren never made the transition from a corporate defender to an anti-corporate activist in her academic writings. It came largely after her entry into politics without an explanation of the reasons for adopting the new positions. The fact is that Warren had some interesting scholarship in the business law area and it would be equally interesting to understand why she has moved away from those positions.

That however was not enough. In the age of rage, one has to show that you are willing to do what others are not willing to do . . . like tear down the leading judicial institution in our constitutional system. If you are going to run in the Democratic primary, you need to be a “made” politician who has demonstrated that you can dispense with the niceties of the Constitution and do what makes others cringe. After all, how does the Court “benefit us”? Those other candidates may support higher taxation or spending bills but they are weaklings if they balk at packing the Supreme Court.

There is a sense of release in crossing that Rubicon. You are no longer burdened by the need to justify one’s actions in light of constitutional history or values. For example, during the confirmation hearing for Justice Kavanaugh, Sen. Sheldon Whitehouse (D-R.I.) demanded that Kavanaugh promise to respect stare decisis on cases like Roe, but then called for overturning cases like Citizens United v. Federal Election Commission.

It is the same glaring hypocrisy of democratic leaders like Warren denouncing the conservative majority as “partisan” while demanding the packing of the court to guarantee an immediate liberal majority.

The Warren column is perfectly Orwellian in declaring that the Supreme Court now “threatens the foundations of our nation” while using that claim to destroy our highest court. It is the judicial version of the explanation in the Vietnam War that “it became necessary to destroy the town to save it.” Warren would open up the Court to continual manipulation by shifting majorities in Congress — recreating the Court in the image of our dysfunctional Congress.

So, on December 15, 2021, Elizabeth Warren finally transitioned to being a pure politician unburdened and unrestrained. From “Tax the Rich” to “Pack the Court,” Warren is now soundbite ready and principle resistant for 2024.


Michigan Woman Criminally Investigated for Social Media Attacks on Anti-Maskers

The Livingston County (Mich.) Sheriff’s Office is seeking criminal charges against a Howell woman who posted nasty attacks on Twitter to criticize recent public meeting comments by anti-maskers. Kasey Helton seems an entirely unhinged and uncivil person. However, as will come as no surprise to regulars on this blog, I do not see the basis for such a criminal referral, which creates a chilling effect on free speech. Continue reading “Michigan Woman Criminally Investigated for Social Media Attacks on Anti-Maskers”

Aged Out at 17? Prince Andrew Raises Surprising Defense to Giuffre Lawsuit

Florida Southern District Court

There was a surprising claim by Prince Andrew this week by his defense in the lawsuit from Virginia Roberts Giuffre, who claims that she was forced to have sex with him at the behest of Jeffrey Epstein. The Duke of York is arguing that Giuffre was too old at the time of the alleged sexual acts to use the New York Child Victims Act (CVA) to “revive” her claims now. He also repeats his main defense that Giuffre signed a release that bars her lawsuit against him.

Continue reading “Aged Out at 17? Prince Andrew Raises Surprising Defense to Giuffre Lawsuit”