Category: Courts

The Supreme Court Bars Cuomo’s Pandemic Limits On Houses of Worship

The U.S. Supreme Court delivered a surprising blow to pandemic restrictions on house of worship in a late night order barring the enforcement of New York Gov. Andrew Cuomo’s Oct. 6 “Cluster Initiative” limiting attendance at religious services.  Five justices (including newly installed Justice Amy Coney Barrett) blocked the limits while allowing the United States Court of Appeals for the Second Circuit to hear the merits in the case. Notably, Chief Justice John Roberts voted with the liberal justices but only because he felt that the order was not needed since the plaintiffs were not currently subject to the most severe limits. Continue reading “The Supreme Court Bars Cuomo’s Pandemic Limits On Houses of Worship”

Barrett Reloaded? A New Third Circuit Decision Could Prove The Perfect Base For A Second Amendment Blowout

The Third Circuit has issued an opinion that has received little attention over the right to bear arms, but it should. The decision in Folajtar v. The Attorney General of the United States may be one of the most perfectly tailored case for major Supreme Court decision. Indeed, the only thing lacking from the 2-1 decision is a mailing label directly to Justice Amy Coney Barrett. In ruling that a non-violent tax conviction can result in the denial of gun ownership, the panel presents a clean case to further define the contours of the individual rights recognized in District of Columbia v. Heller, 554 U.S. 570 (2008). It is also an opportunity that any new justice would relish: after being the lone dissenter on a similar case, Barrett could be the critical vote (and even the author) on the opinion changing the area in line with her prior position.

Continue reading “Barrett Reloaded? A New Third Circuit Decision Could Prove The Perfect Base For A Second Amendment Blowout”

Uncured: Federal Judge Dismisses Trump Challenge In Pennsylvania

On Saturday, U.S. District Court Judge Matthew Brann dismissed the challenge filed by the Trump campaign to stop the certification of the vote in Pennsylvania. The court acknowledged that vote negation may have occurred due to different “curing” rules, but balked at the legal and logical basis for blocking certification of the state electoral votes to remedy to such claims. The scathing order described the argument of Trump counsel Rudy Giuliani as a “Frankenstein monster” composed of disparate parts of different legal claims. Notably, the court did find that the “Individual Plaintiffs have adequately pled that their votes were denied.” However, that island of support is lost in a vast ocean of countervailing and caustic findings by the court. Continue reading “Uncured: Federal Judge Dismisses Trump Challenge In Pennsylvania”

Is “Curing” A Colorable Claim Under Equal Protection? [Updated]

#SCOTUS

There is more rage than reason being expressed in the country over election challenges, but there are some interesting legal issues. One is found in Pennsylvania where the Trump campaign is alleging that counties used different approaches to “curing” ballots. The issue brings back memories of Bush v. Gore, 531 U.S. 98 (2000), under equal protection. Notably, while academics have uniformly dismissed this claim, they largely refer not to the claim but to the relief.  The fact is that there does not seem a sufficient number of votes that could change the outcome of the election. The question however is whether there is still a colorable claim of an equal protection violation.  This could come down to the two distinct parts of Bush v. Gore.

Continue reading “Is “Curing” A Colorable Claim Under Equal Protection? [Updated]”

“The First Thing We Do”: The Lawless Campaign To Harass Lawyers Representing The Trump Campaign

Below is my column in The Hill on the successful campaign that has forced firms to drop Donald Trump or the Republican Party as clients in the ongoing litigation over the 2020 election. Notably, this campaign started soon after the election was called for President-Elect Joe Biden.

Here is the column: Continue reading ““The First Thing We Do”: The Lawless Campaign To Harass Lawyers Representing The Trump Campaign”

“Unfashionable Views”: Justice Alito Speaks Out Against Pandemic Restrictions, Contraception Laws, and Other Controversies

Justice Sam Alito is making headlines after his speech last night as the keynote at this year’s all-virtual Federalist Society National Lawyers Convention. Alito slammed pandemic measures  and attacks on free speech in his remarks to the Convention, including the crackdown on “unfashionable views” in our society.  I happen to agree with some of his points, but I have great reservations over a justice speaking on issues that are likely to come before him on the Court. Indeed, I have long been a critic of the Supreme Court justices engaging in public appearances where they hold forth on contemporary issues. I have been particularly critical of the late Justice Antonin Scalia and Justice Ruth Bader Ginsburg who clearly relished appearances before ideologically supportive groups. Continue reading ““Unfashionable Views”: Justice Alito Speaks Out Against Pandemic Restrictions, Contraception Laws, and Other Controversies”

Ornstein: Impeach Amy Coney Barrett

My column this morning in the Hill discussed a call by columnist and professor Norm Ornstein to impeach Amy Coney Barrett if she does not yield to a demand to recuse herself from any election challenge before the Court. A demand for such recusal was filed yesterday in the Supreme Court. Ornstein’s call for impeachment is the latest unhinged response to Barrett nomination and further decouples our national debate from any sense rationality and restraint.

Continue reading “Ornstein: Impeach Amy Coney Barrett”

The Barrett Boycott: Democrats Struggle To Get An Empty Sack To Stand Up

I recently wrote about how the Barrett confirmation hearing is proof that Benjamin Franklin was right when he wrote that “it is hard for an empty sack to stand upright.” Now that analogy is becoming reality as Democrats plan to leave actual empty seats in today’s hearing to vote on the nomination. It is all an effort to convince Democrats voters that the senators are really angry over the nomination and fighting like the dickens to stop it. It is, of course, pure theater with no real impact on the nomination but voters seem to demand little more from politicians today than visceral distractions.

Continue reading “The Barrett Boycott: Democrats Struggle To Get An Empty Sack To Stand Up”

Barrett Unmodified: Moments of Clarity Emerge From The Confirmation of Judge Amy Coney Barrett

Below is my column in the Wall Street Journal on nomination of Amy Coney Barrett. While the confirmation hearing often seemed weirdly disconnected to the nominee, there were important moments where the jurisprudential views of Judge Barrett were expressed with striking — and rare — clarity.

Here is the column: Continue reading “Barrett Unmodified: Moments of Clarity Emerge From The Confirmation of Judge Amy Coney Barrett”

Barrett: There Is Nothing Super About The Precedent In Roe v. Wade

Below is my column in The Hill newspaper on Roe v. Wade and the doctrine of stare decisis (or the respect and preservation of precedent). One of the most notable moments in the hearing came when Judge Barrett suggested that Roe was not “super precedent.”  Indeed, she noted that the concept of “super precedent” is the work of others in academic publications. However, on Roe, Judge Barrett had an interesting exchange with Sen. Amy Klobuchar, D-Minn. in which she identified Brown v. Board of Education as such super precedent. However, when pushed on Roe, she noted  “I’m answering a lot of questions about Roe which I think indicates that Roe doesn’t fall into that category.”

This issue was addressed in the column: Continue reading “Barrett: There Is Nothing Super About The Precedent In Roe v. Wade”

Turley Speaks At Brookings On Legislative History and Judicial Interpretation

Today I have the pleasure of speaking at Brookings Institution as part of the Washington University’s speaker’s series.  Ironically, the speech is on the use of legislative history, a subject much discussed yesterday in the confirmation hearing of Judge Amy Coney Barrett.  I will therefore step away from blogging for an hour to appear virtually. Continue reading “Turley Speaks At Brookings On Legislative History and Judicial Interpretation”

Douglas Kahn: There Is No Basis To Assume That Barrett Would Strike Down The ACA

We occasionally have the opportunity to publish columns from other academics on pressing legal or political issues. In the column below, Professor Douglas A. Kahn discusses the charge that Judge Amy Coney Barrett would clearly vote to strike down the Affordable Care Act (ACA) in the pending case of California v. Texas. Professor Kahn is the Paul G. Kauper Professor Emeritus of Law at the University of Michigan. He taught for decades at Michigan and has written a host of books and articles in his distinguished career. He is also a graduate of our law school at George Washington University. It is my distinct honor to post his thoughts on the ACA issue below.

Continue reading “Douglas Kahn: There Is No Basis To Assume That Barrett Would Strike Down The ACA”

Biden Pledges To Make “Roe The Law Of The Land” If Overturned By The Supreme Court

Last night’s NBC’s town hall in Miami with former Vice President Joe Biden was panned, to quote Politico’s Marc Caputo, as another “Biden Informercial” that protected the candidate from both tough questions and skeptical voters. There was not a single question on Biden refusing to answer whether he supports packing the Supreme Court, a move supported by his running mate Kamala Harris and various top Democrats in this election.  However, Biden did make one notable comment about the Court and nominee Amy Coney Barrett.  He said that, if Barrett helped reverse Roe v. Wade, he would make “Roe the law of the land.” Continue reading “Biden Pledges To Make “Roe The Law Of The Land” If Overturned By The Supreme Court”

Ginsburg’s Nightmare: The Democratic Plan To Destroy The Supreme Court Of The United States

Below is my column in The Hill newspaper on the call for a litmus test for Supreme Court nominees and the packing of the Supreme Court with up to six new members to secure a majority.  Both ideas were expressly denounced by Ruth Bader Ginsburg. Indeed, to achieve these objectives, the Democratic members will have to tear down the very rule established by Ginsburg in her confirmation hearing. Continue reading “Ginsburg’s Nightmare: The Democratic Plan To Destroy The Supreme Court Of The United States”

Michigan Supreme Court Strikes Down Gov. Whitmer’s State of Emergency Order

In a recent column in the New York Times, Michigan Gov. Gretchen Whitmer criticized President Donald Trump for not issuing a national order making the wearing of masks mandatory – a pledge made by Vice President Joe Biden raising serious constitutional questions. Now, Whitmer is having her broad interpretation of state executive authority checked by the Michigan Supreme Court, which found that she violated the Constitution with her extension of the state of emergency. Continue reading “Michigan Supreme Court Strikes Down Gov. Whitmer’s State of Emergency Order”