Category: Constitutional Law

Christopher Newport Professor Under Fire Over Her Criticism of Superman’s New Identity as a Bisexual

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Texas History Professor Fired For Criticizing Mike Pence Files First Amendment Challenge

There is a new free speech case out of Texas where a former history professor, Lora Burnett, is suing Collin College over her termination. Burnett alleges that the college fired her after she lashed out at former Vice President Mike Pence and tweeted that a moderator in his debate with now Vice President Kamala Harris should shut his “little demon mouth up.” While I disagree with Burnett’s rhetoric and tenor, the lawsuit has the makings of an important free speech challenge.

Continue reading “Texas History Professor Fired For Criticizing Mike Pence Files First Amendment Challenge”

Biden’s “Come on, Man” Defense Will Not Fly on Religious Freedom

Below is my column on the President’s dismissal of any objections to the Covid vaccine and his call for mass firings of first responders who remain defiant. The comments reflect a growing call for states and the federal government to reject any religious exemptions for vaccination.

Here is the column: Continue reading “Biden’s “Come on, Man” Defense Will Not Fly on Religious Freedom”

Federal Court Rules In Favor of UNC in Use of Race in Admissions

Many observers are waiting for the United States Supreme Court to decide whether to delve again into college admissions with a pending case out of Harvard University in which Asian and white students claim discrimination. We have been following that case for a couple years. However, there is a new ruling out of North Carolina that could present another opportunity for the Court to revisit the issue. Judge Loretta C. Biggs of the U.S. District Court for the Middle District of North Carolina just ruled that UNC can use race criteria to guarantee a “critical mass” of minority students in its classes. Both cases could offer the Court an opportunity to clarify its conflicted affirmative action rulings on college admissions. Continue reading “Federal Court Rules In Favor of UNC in Use of Race in Admissions”

“The Risks of Court Expansion are Considerable”: Biden Commission Leaves Court Packers Empty-Handed and Enraged

Below is my column in USA Today on the resignation of conservative members of President Joe Biden’s Commission on the Supreme Court.

Here is the column:

Internet progressives went into renewed outrage last week with objections to the “abomination” and “fixed” game being played in Washington. The subject of these attacks was not election fraud or infrastructure but the preliminary findings of the Biden Presidential Commission on the Supreme Court, which warned that “the risks of court expansion are considerable.”

Despite being composed primarily of liberal members, the commission is now being attacked as a tool of the status quo. Ironically, much like the court itself, the commission is being declared invalid because it dared to reach conclusions different from these activists. Unlike on the court, activists apparently succeeded in getting two conservative members to resign because of the recommendations.

When the commission was formed, I wrote that it did not look like a serious effort to pack the court. Rather it looked like a standard “death by commission” move by President Joe Biden. The reason was not that it was too moderate but too liberal. If Biden seriously wanted to pack the court, this commission would hardly be credible with many Americans given the small number of members in the center or on the right. As the commission acknowledged, “A majority of the public does not support court expansion.”

Cable news regular and Nation writer Elie Mystal declared on Twitter, “When you put no court reformers on your court reform commission, you end up with no court reform. This game was fixed from the moment @JoeBiden named the commission.” He denounced the whole effort as “designed to produce no change.”

In reality, the commission was divided, with some members supporting court packing and two of the few conservative members suddenly resigning Friday.

However, even if the backlash results in a purging of the report or the commission, Mystal could be partially right.

The “death by commission” tactic is a common substitute in Washington for actual political leadership. During the presidential campaign, Biden repeatedly refused to state whether he opposed packing the court. He said he would only answer the question after the election, a truly bizarre position that many in the news media then just shrugged off.

As a senator, Biden was eager to express his views when it was politically popular to oppose court packing. He denounced it as a “bonehead” and “terrible, terrible” idea. Now, however, those words would come at a cost. So Biden ordered up a commission to put space between his principles and his politics. To guarantee its placebo effect, the White House stressed that the commission would only make preliminary recommendations.

The strategy did not work in this case because Biden’s acquiescence had fueled a well-funded movement of groups like Demand Justice (which has run a billboard truck in Washington calling for the immediate retirement of Justice Stephen Breyer). For months, progressives have made court packing the litmus test for whether someone truly supports democracy. Now to their outrage, the commission wrote court expansion “could undermine the very goal of some of its proponents of restoring the court’s legitimacy. … The reform – at least if it were done in the near term and all at once – would be perceived by many as a partisan maneuver.”

If the White House hoped that the commission would serve as a type of primal scream session to release rage, it didn’t work. That was evident in the response to the initial report. The “abomination” described by the Slate writer Mark Joseph Stern is that the commission suggested that “today’s Supreme Court is basically apolitical while fretting that reforms with any real teeth would politicize it, and potentially break democracy.”

In other words, this commission is itself in need for reform like the court itself. It was not stacked enough or simply ineffectual because it failed to reach the supposedly “right” conclusion.

The commission did appear to vaguely support term limits for Supreme Court justices. While the limits would raise some constitutional questions, there is an argument that federal judges are only guaranteed lifetime tenure, not tenure on a particular court. However, the resulting turnover would toss out liberals and conservatives alike when groups are demanding the instant addition of four liberal justices to force a new majority on the court.

What the commission did not want to address is the fundamental flaw in the court reform movement. Most of the calls to expand the court have been based on the view that the court is “broken” because it is reaching the wrong conclusions. In other words, the court would not function correctly until it ruled “correctly.” After all, when discussing the principle of judicial review, members like Rep. Alexandria Ocasio-Cortez, D-N.Y., asked, “How much does the current structure benefit us? And I don’t think it does.”

Biden’s effort to use a commission to kill this “bonehead idea” was designed for a different time when you could let causes die from an abundance of time and talk. This is the age of rage. The commission was designed to placate radical demands for change, but it is now denounced as an “abomination” like the institution that it was tasked to study.

While the president is likely to promise to study the commission study, the calls for court packing are only likely to increase with this term as the court addresses major cases on abortion, free speech, gun rights and other issues. Biden cannot remain a pure pedestrian in this controversy.

It is not even clear that throwing the court under the bus would placate these activists. As French journalist Jacques Mallet du Pan famously observed about the French Revolution, “Like Saturn, the revolution devours its children.” That counts for courts, commissions and even presidents.

While the president is likely to promise to study the commission study, the calls for court packing are only likely to increase with this term as the court addresses major cases on abortion, free speech, gun rights and other issues. Biden cannot remain a pure pedestrian in this controversy.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

Police Suggest Possible Charges for Those Who Filmed Rape on Train [Updated]

The recent rape of a woman on a train in Pennsylvania has shocked and disgusted the nation, particularly after passengers did nothing to help the woman as she was allegedly attacked by Fiston Ngoy, 35. Now police are reportedly considering criminal charges against passengers who filmed the rape and did not call the police.

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Locked and Loaded: Supreme Court is Ready for a Showdown on the Second Amendment

Below is my column in the Hill on the makings of a blockbuster case in New York State Rifle & Pistol Association Inc. v. Bruen, the first major gun rights case before the Supreme Court in ten years.  Justices have been openly discussing a case to push back on lower courts that have been chipping away at its Second Amendment jurisprudence. They found that case with a strikingly familiar plaintiff.

Here is the column: Continue reading “Locked and Loaded: Supreme Court is Ready for a Showdown on the Second Amendment”

Morrison: Time to Give DC Residents A Vote in Congress

I recently discussed the Supreme Court’s affirmance of a decision rejecting constitutional arguments that the District of Columbia is entitled to a vote in Congress. I have repeatedly testified and written on the constitutional barriers to such a vote absent statehood. See Jonathan Turley, Too Clever By Half: The Partial Representation of the District of Columbia in the House of Representatives76 George Washington University Law Review 305-374 (2008). Given those long-standing views, I felt that the blog should hear from a leading intellectual with an opposing perspective. One of the briefs written in support of the district in the recent litigation was from constitutional scholars, including my colleague Alan B. Morrison, Lerner Family Associate Dean at George Washington Law School. I reached out to Professor Morrison to see if he would offer a response on the ruling and the underlying issues. I was delighted when he accepted.

For many on this blog, Professor Morrison needs little introduction. He has not only previously written on the blog, but he is one of the most respected legal figures in the country with extensive litigation and public interest experience. His views on this and every subject are worth the most serious consideration by readers. Continue reading “Morrison: Time to Give DC Residents A Vote in Congress”

United States Supreme Court Affirms Denial of Voting Rights For D.C.

The United States Supreme Court affirmed the decision of the United States Court of Appeals for the District of Columbia (and the later denial of a motion for consideration) in rejecting the much touted lawsuit to give residents a vote in Congress. Some of us have repeatedly said that the lawsuit would not succeed despite various law professors filing a brief supporting the underlying claims. What is most striking however is the coverage in the Washington Post, which reported on the summary affirmance but only quoted supporters for the challenge, including a strikingly misleading take on the lower court ruling upheld by the Supreme Court.

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Train Whistle Docket: The Supreme Court Returns With Blockbuster Cases On Guns, Abortions, and Free Speech

This week, the Supreme Court will again assemble for a new term and pundits and politicians are already handicapping the cases. This term however has more drama and tension as Democrats call for packing the Court with an instant liberal majority and others attack its members in anticipation of opinions that have yet to be written. The reality is summed up in one of my favorite stories about Supreme Court Justice Oliver Wendell Holmes when he was on a trip to Washington. Holmes forgot his ticket but the train conductor reassured him, “Do not worry about your ticket. We all know who you are. When you get to your destination, you can find it and just mail it to us.” Holmes responded, “My dear man, the problem is not my ticket. The problem is, where am I going?” Continue reading “Train Whistle Docket: The Supreme Court Returns With Blockbuster Cases On Guns, Abortions, and Free Speech”

“They Tell Me I Shouldn’t But . . .”: Sotomayor Calls on Law Students to Oppose the Texas Abortion Law

Modern justices have long chafed at the restraints of judicial ethical rules about public commentary. The late Ruth Bader Ginsburg was celebrated as “notorious” due in part to her controversial public speeches and discussions of pending or expected cases before the Court. Despite my long criticism of this trend, I was still taken aback by comments of Justice Sonia Sotomayor at an event organized by the American Bar Association. In her comments, Sotomayor appeared to call for political campaigns and discussed a matter just before the Court. Despite the discussion of the case and political opposition from a sitting justice, the ABA members were silent as were the many liberal activists who have been denouncing the Court as too “political.” Continue reading ““They Tell Me I Shouldn’t But . . .”: Sotomayor Calls on Law Students to Oppose the Texas Abortion Law”

Federal Court Rules Against DC on Wrongful Gun Arrests

U.S. District Judge Royce C. Lamberth issued an important decision on Wednesday that the D.C. government is liable for wrongfully arresting six people between 2012 and 2014 for violating its ban on carrying handguns in public. It is the latest loss of the city, which continues to pass legislation that runs afoul of governing Supreme Court precedent. Continue reading “Federal Court Rules Against DC on Wrongful Gun Arrests”

Enlightened Algorithms: Democrats Call For Increased Corporate Controls To Protect Citizens From Their Own Dangerous Curiosities

Below is my column in USA Today on the recent call by Sen. Elizabeth Warren (D., Mass.) for Amazon to steer readers to “true” books on climate change. It is the latest example of Democrat’s embracing a type of  corporate governance model to carry out tasks barred to the government under the Constitution. Companies are now being asked to protect us from our own dangerous interests and inquiries. An array of enlightened algorithms will now watch over citizens to help them make good choices and read “true” things.

Here is the column: Continue reading “Enlightened Algorithms: Democrats Call For Increased Corporate Controls To Protect Citizens From Their Own Dangerous Curiosities”

YouTube Removes Videos of Putin Critic in Latest Act of Corporate Censorship

We have been discussing the rising support for corporate censorship among leading Democratic politicians, academics, and writers. Social media and Internet companies now actively respond to calls from government officials to silence those with opposing views. The latest such example is Google-owned YouTube removing videos of jailed Kremlin critic Alexei Navalny before Russia’s parliamentary elections.  Alphabet Inc.’s Google and Apple Inc. also pulled a voting app from Navalny ahead of the election. Nevertheless, CEO Susan Wojcicki bizarrely claimed in a Bloomberg interview Bloomberg Television that free speech remains a “core value” for the company. Continue reading “YouTube Removes Videos of Putin Critic in Latest Act of Corporate Censorship”

Policing Pronouns: How “Misgendering” is Becoming the New Battleground Over Discrimination

Below is my column in the Hill on growing conflicts over “misgendering” in the use of pronouns. Both governmental agencies and academic institutions are increasingly treating misgendering as a form of hate speech or discrimination. That is triggering major free speech fights in this county and abroad.

Here is the column: Continue reading “Policing Pronouns: How “Misgendering” is Becoming the New Battleground Over Discrimination”