Category: Courts

Clarence Thomas: “When Someone Uses Stare Decisis that Means They’re Out of Arguments”

Associate Justice Clarence Thomas made an interesting comment this weekend about the hold of precedent on the Court. After denouncing the recent leak of the draft opinion that would overturn Roe v. Wade as “an infidelity,” Thomas dismissed the reliance on the principle of stare decisis, or the respect for precedent. That was one of the central arguments in favor of preserving Roe. Thomas, however, surprised many by dismissing the principle as the last line of defense for those without an argument on the merits. Continue reading “Clarence Thomas: “When Someone Uses Stare Decisis that Means They’re Out of Arguments””

Turley Speaks to the Federal Bar Association on the Supreme Court

I have the pleasure this morning of speaking with the Federal Bar Association in Utah. The keynote address is entitled “Dangerous Times for the Least Dangerous Branch: The Supreme Court in the Age of Rage.” Ironically, the topic was selected months ago, but the recent leaking of the draft opinion on abortion and doxing of justices adds a particularly menacing element to the topic.

Continue reading “Turley Speaks to the Federal Bar Association on the Supreme Court”

From Court Packing to Leaking to Doxing: White House Yields to a National Rage Addiction

Below is my column in the Hill on the leak and the refusal of President Joe Biden to denounce such conduct. It is a defining moment for his presidency that, even in the face of such a disgraceful and unethical act, the President cannot muster the courage to condemn it. He then magnified that failure by refusing to condemn the doxing and targeting of justices and their families at their homes.

Here is the column:

Continue reading “From Court Packing to Leaking to Doxing: White House Yields to a National Rage Addiction”

No, Justices Did Not Commit Perjury in Their Confirmation Hearings When Asked About Roe

The response to the leaked draft opinion overturning Roe v. Wade has unleashed a torrent of outrage on the left. While many are calling for marches and sweeping new legislation, some are focused on calling out the justices in the majority for alleged “perjury” or “lying” in their confirmation hearings, particularly Justices Samuel Alito, Brett Kavanaugh, and Neil Gorsuch. In reality, they did not lie in testimony in referencing Roe as established precedent.  The suggestion of perjury is utter nonsense. Continue reading “No, Justices Did Not Commit Perjury in Their Confirmation Hearings When Asked About Roe”

Supreme Court Declines Emergency Relief in Thomas Jefferson High School Case

I have been writing (here and here and here) on the controversy over the decision of the Fairfax School Board to change the admissions requirements for Thomas Jefferson High School for Science and Technology to achieve diversity goals. Now, the United States Supreme Court has denied a request for emergency intervention in the case. However, the decision is not the end of the case. The Court may still review the admissions changes and three justices are already signaling that they would like to do so.

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Showdown at TJ: How a Virginia High School Became The Latest Battleground Over Racial Discrimination

Below is my column in the Hill on the litigation over the new admissions policy at the elite Thomas Jefferson High School in Fairfax, Virginia. The school board ended the use of an admissions test in favor of a “holistic approach” to achieve greater diversity at the school. Notably, this week, the board defended its policy before the Supreme Court by insisting that it was not “race balancing” and that the new policy is entirely “race neutral.” However, the board replaced a race-blind, merit-based system for the express purpose of achieving greater diversity. Indeed, one board member declared “in looking at what has happened to George Floyd . . . we must recognize the unacceptable numbers of such things as the unacceptable numbers of African Americans that have been accepted to TJ.”

The Virginia Attorney General (and various other states) have filed to challenge those assertions in a potentially important case that would allow the Court to consider allegedly discriminatory admissions practices and polices not just on the college but the high school levels.

Here is the column:

Continue reading “Showdown at TJ: How a Virginia High School Became The Latest Battleground Over Racial Discrimination”

“The Illegality…Was Obvious”: An Analysis of the Carter Opinion on Jan. 6th

“The illegality of the plan was obvious.” Those words of Judge David O. Carter in the U.S. District Court for the Central District of California this week have electrified commentators across the networks and the Internet. Judge Carter was praised for his “simple clarity” in declaring that “it is more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.”  The declarations by the court have led to a frenzy in the media and renewed calls for the prosecution of the former president. However, there are elements to the decision that are deeply concerning on issues ranging from free speech to attorney-client privilege.

Continue reading ““The Illegality…Was Obvious”: An Analysis of the Carter Opinion on Jan. 6th”

Justice Thomas Faces Calls for Investigation and Sweeping Recusals

Below is my column on the calls for Supreme Court Justice Clarence Thomas to recuse himself from a wide range of cases.  I have previously discussed the  meritless calls for his impeachment over the controversy related to his wife’s emails to the White House after the 2020 election. There are legitimate concerns that Thomas should have recused himself from a January case if he knew that his wife’s messages were included in the material sought by the House investigation. However, experts have gone further to claim that he must recuse himself from a wide array of other cases, including any touching on the 2020 election. I do not agree with that assessment. In the meantime, Sen. Cory Booker (D., N.J.) is calling for an “investigation” into Thomas’ refusal to recuse himself, though he is vague on who would conduct such an investigation.

Here is the column:

Continue reading “Justice Thomas Faces Calls for Investigation and Sweeping Recusals”

Is it Okay Now to Say There is a Thin Record on Jackson’s Judicial Philosophy?

With the completion of her two days of confirmation testimony, one fact is now clear: Judge Ketanji Brown Jackson insists that she has no judicial philosophy other than a judicial methodology that is essentially identical to her oath of office. Putting aside the legal and linguistic problems with that position, most of the media and legal experts have simply shrugged and moved on. That is curious because just a week ago, many of these same figures went ballistic when I noted that we have little evidence of a judicial philosophy in past decisions by Judge Jackson and it would be one of the key issues in her confirmation hearings. Continue reading “Is it Okay Now to Say There is a Thin Record on Jackson’s Judicial Philosophy?”

“We Have Never Had This Moment Before”: The Jackson Confirmation Shows Striking Differences From Prior Confirmations

Below is my column in USA Today on the confirmation hearings for Judge Ketanji Brown Jackson. For the most part, the hearings remained respectful and civil. I criticized some of the questioning from Republican senators on relevance or tone, but the difference with the prior three nominations was striking in a number of respects. Judge Jackson faced tough questioning on her prior decisions, but there were no giant pictures of alleged future victims or attacks on her religion or family that we saw two years ago. Indeed, as Sen. Cory Booker (D., N.J.), stated “This is not a normal day for America. We have never had this moment before.”

Here is the column: Continue reading ““We Have Never Had This Moment Before”: The Jackson Confirmation Shows Striking Differences From Prior Confirmations”

Why Judge Jackson Needs to Recuse Herself in the Harvard Case: A Response to Noah Feldman et al.

In an earlier column, I wrote about what I saw as an insurmountable conflict of interest for Judge Ketanji Brown Jackson if she is confirmed to the Supreme Court. One of the most important cases on the Court’s calendar is a racial discrimination case involving Harvard admissions policies. I was surprised, therefore, to read that Harvard Law Professor Noah Feldman and others believe that Jackson has strong arguments against any recusal in the case. I wanted to address those arguments in greater detail.

Continue reading “Why Judge Jackson Needs to Recuse Herself in the Harvard Case: A Response to Noah Feldman et al.”

The Crimson Tie: Why Judge Jackson May Have An Ethical Problem To Address

Below is my column in the Hill on the possible conflict of interest faced by Judge Ketanji Brown Jackson if she is confirmed to replace Justice Stephen Breyer. If Judge Jackson becomes Justice Jackson, her service on a Harvard governing board will be a barrier to her sitting on one of the most significant cases of the term. While the Harvard Crimson quotes Professor Noah Feldman as saying that there is a “strong argument that she would not need to recuse,” I cannot see how she could ethically sit in judgment on the case given her board position.

Here is the column:

Continue reading “The Crimson Tie: Why Judge Jackson May Have An Ethical Problem To Address”

“A Bit Unusual”: Federal Judge Rejects Palin Motion For New Trial

Senior U.S. District Judge Jed Rakoff has issued a stinging rebuke to former Alaska Gov. Sarah Palin in seeking a new trial. A new trial was unlikely given Rakoff’s ruling that he would dismiss the case regardless of the verdict of the jury. However, in my view, Rakoff made an utter mess of this case and this decision will only magnify the novel issues for appeal.

Continue reading ““A Bit Unusual”: Federal Judge Rejects Palin Motion For New Trial”

Palin and Public Figures: Is it Time to Reconsider New York Times v. Sullivan and the Actual Malice Standard?

Below is my column in USA Today on the Palin defamation trial. The case, if appealed, could raise a serious challenge to the application of the “actual malice” standard to public figures. Ironically, last night, Hillary Clinton made reference to this standard in suggesting that she might be able to sue Fox News for its coverage of the Durham investigation. It is considered a sacrilege to even raise the possibility of reexamining the legacy of New York Times v. Sullivan but there are legitimate long-standing questions about the extension of the actual malice standard from public officials to public figures. It is a tough question with good arguments on both sides, but it is a debate that is long overdue.

Here is the column:

Continue reading “Palin and Public Figures: Is it Time to Reconsider New York Times v. Sullivan and the Actual Malice Standard?”

“Dismantling Democracy” to Save it: How Democrats Rediscovered the Joys of Rigging Elections

Below is my column in the Hill on the frenzy of gerrymandering in various states and the selective condemnation of President Joe Biden of such practices in North Carolina.

While denouncing Republicans for gerrymandering as attack on democracy, Democratic figures like lawyer Marc Elias are under attack for raising millions to support Democratic gerrymandering. Elias previously declaredRepublicans gerrymander like this because they do not want free and fair elections.” (Elias was previously accused of lying to conceal the Clinton campaign’s funding of the Steele dossier, has sought to reverse election results, and has been sanctioned by the courts). Notably, the raw gerrymandering in New York not only seeks to rig the coming elections but openly flouts the will of the voters who repeatedly demanded that the practice stop in their state. 

Here is the column:

Continue reading ““Dismantling Democracy” to Save it: How Democrats Rediscovered the Joys of Rigging Elections”