Category: Courts

A Constitutional Thanksgiving: Why We Should All Give Thanks for the “Least Dangerous Branch”

As families gather this year for our annual holiday feast, there remain many things for all of us to give pause and thanks for in our lives. Our friends, family, and faith remain central to this holiday. So is our freedom.  Despite economic, political, and social problems, we remain a free and prosperous nation committed to core values of individual rights and self-determination. Indeed, more than any year, there is particular reason to give thanks to the most besieged and resilient part of our constitutional system: the courts. Despite attacks from the left and right, our court system remains a bulwark against political impulse and excess. The Supreme Court in particular has faced unrelenting attacks ranging from a reprehensible leak to an attempted assassination of a justice to calls for court packing. It has stood its ground just as James Madison and other Framers had hoped in their original design of our constitutional system.

Continue reading “A Constitutional Thanksgiving: Why We Should All Give Thanks for the “Least Dangerous Branch””

Fulton County Judge Rules with the Warnock Campaign and Orders New Early Voting Date

Fulton County Superior Court Judge Thomas A. Cox Jr. has ruled in favor of a filing by the Democratic Party and U.S. Sen. Raphael Warnock’s campaign to allow early voting to begin on Saturday in Georgia’s Senate runoff election. I previously criticized this filing as an invitation for the court to act as a super legislature in the face of clear statutory language. In fairness to Judge Cox, the opinion below makes a creative case for such a construction. Yet, despite this well-written decision, I still believe that the court is wrong to ignore the plain meaning of the statute.

Continue reading “Fulton County Judge Rules with the Warnock Campaign and Orders New Early Voting Date”

The Cuties and the “Younger” Doctrine: Netflix Prevails in Key Federal Ruling Over Controversial Movie

previously wrote a column opposing calls by GOP members for a federal investigation of Netflix and the movie “Cuties” (or Mignonnes). Now, federal Judge Michael Truncale (left) has issued a preliminary injunction in the Eastern District of Texas to stop the prosecution of the company. The move is relatively rare since the Younger abstention doctrine ordinarily shields state prosecutions from such interventions of federal courts. However, the court highlighted deep flaws in the prosecutorial case. Continue reading “The Cuties and the “Younger” Doctrine: Netflix Prevails in Key Federal Ruling Over Controversial Movie”

“Not Ruled by an All-Powerful Executive”: Federal Judge Declares Biden Loan Forgiveness Unconstitutional

We have previously discussed how the Administration stretched the 2003 Higher Education Relief Opportunities for Students (HEROES) to the breaking point as the basis for waiving roughly half a trillion dollars in debt owed to the public in college loans. Now, U.S. District Judge Mark Pittman of the Northern District of Texas has issued an opinion declaring that President Joe Biden violated the Constitution in unilaterally forgiving the debt before the midterm election. Judge Pittman wrote “[i]n this country, we are not ruled by an all-powerful executive with a pen and a phone.” It was former President Barack Obama who defied Congress with unilateral actions and declared that he would go it alone if needed because “I’ve got a pen, and I’ve got a phone.” Continue reading ““Not Ruled by an All-Powerful Executive”: Federal Judge Declares Biden Loan Forgiveness Unconstitutional”

Fetterman Turns to Controversial Clinton Lawyer Marc Elias’ Firm to Strike Down Pennsylvania Election Provisions

Democratic Senate candidate John Fetterman and other Democrats have filed a federal lawsuit to strike down parts of Pennsylvania’s election law after the state Supreme Court ruled that mail-in ballots with incorrect dates or no dates should not be counted. Fetterman is challenging the state law on constitutional and federal statutes. He has turned to a controversial former lawyer for Hillary Clinton to seek to strike down the provision.

Continue reading “Fetterman Turns to Controversial Clinton Lawyer Marc Elias’ Firm to Strike Down Pennsylvania Election Provisions”

“When True Democracy Goes Away, People Get Hurt”: Obama Joins Mantra that Democracy is at Risk if GOP Wins

Former President Barack Obama continued the Democratic campaign theme this week in arguing that democracy is in danger if Republicans prevail in the midterm elections. I have a new column out this weekend addressing the over-the-top rhetoric coming from Democratic politicians and pundits. However, the former president’s speech was revealing as he cited the very arguments made by Democrats  . . . as attacks on democracy.  Obama did not go as far as some but he also seemed to channel the dire warnings of the imminent collapse of our democracy if the Republicans should prevail in the elections.

Continue reading ““When True Democracy Goes Away, People Get Hurt”: Obama Joins Mantra that Democracy is at Risk if GOP Wins”

Ninth Circuit Rules Against Transgender Woman in Beauty Pageant Competition . . . Citing the Musical Hamilton

A panel on the United States Court of Appeals for the Ninth Circuit seemed to be channeling the lyrics of the musical Hamilton in noting that “Everything is legal in New Jersey.” The panel ruled against  a transgender woman who brought a discrimination claim against a beauty pageant that allowed only “natural-born females” to compete. In a prior 2016 column, I discussed the racially discriminatory consideration of only “non-Whites” for the cast of the much-celebrated production. The majority opinion written by Judge Lawrence VanDyke noted the policy in upholding a policy that excluded trans women from the Miss United States of America pageant in Oregon. Continue reading “Ninth Circuit Rules Against Transgender Woman in Beauty Pageant Competition . . . Citing the Musical Hamilton”

“Evil Light” or False Light? A Pro-Life California Woman Objects to False Image in Democratic Ad

There was an interesting torts question raised last week over an abortion rights video ad shared by former Secretary of State Hillary Clinton, Democratic Gov. Gavin Newsom, and others. The video was made to support Proposition 1, a pro-choice amendment to the California State Constitution. Macy Petty is a pro-life activist who was falsely portrayed as crying outside of the Supreme Court after its overturning of Roe v. Wade this year.  The video ad was reportedly paid for by the California Democratic Party.

Continue reading ““Evil Light” or False Light? A Pro-Life California Woman Objects to False Image in Democratic Ad”

“I Got it Passed by a Vote or Two”: Biden’s Latest Bizarre Boast on Student Loans May Come Back to Haunt Him

This weekend, I ran a column on President Joe Biden’s off-base boast that the Supreme Court and a lower court had declared that they are “on Biden’s side” on tuition forgiveness. After the column ran, however, the President claimed that he pushed through the loan forgiveness program through Congress on a narrow margin. That boast is particularly embarrassing because the Administration is in court claiming that he did not need to get congressional approval for the plan. It is likely to be raised by challengers in the next stage of litigation. It also may strangely reflect a moment of clarity in his subconscious mind, a faint recognition of the constitutional principles that he once defended as a United States senator. Continue reading ““I Got it Passed by a Vote or Two”: Biden’s Latest Bizarre Boast on Student Loans May Come Back to Haunt Him”

A Big Win for A Small Bakery: California Baker Wins Case Over Right to Refuse Cake for Lesbian Wedding

We are waiting for the potential blockbuster case of 303 Creative before the Supreme Court this term. However, a similar case just reached a final decision in California. In the case, Cathy Miller, a cake designer who owns the popular Tastries bakery in Bakersfield, California, prevailed against the Department of Fair Housing and Employment. She was sued for refusing to make a cake for a lesbian couple, Eileen and Mireya Rodriguez-Del Rio, due to her religious beliefs.

Continue reading “A Big Win for A Small Bakery: California Baker Wins Case Over Right to Refuse Cake for Lesbian Wedding”

Biden’s Boast: Blocking Judicial Review of a Half-Trillion Tuition Giveaway is Nothing to Celebrate

Below is my column in The Hill on the challenges to President Joe Biden’s massive loan forgiveness program.  President Biden boasted that the courts declared that they are “on Biden’s side.” It is not clear if Biden’s counsel explained the actual holdings in these cases or whether Biden simply forgot or ignored that explanation. Either way, the President’s boast was wildly off-base.

Here is the column: Continue reading “Biden’s Boast: Blocking Judicial Review of a Half-Trillion Tuition Giveaway is Nothing to Celebrate”

North Carolina Judge Jails Prospective Juror for Not Wearing Mask in a Mask-Optional Courthouse

CDC website

North Carolina Judge Charles Gilchrist is under fire this week for sending prospective juror Gregory Hahn into custody for contempt after he refused to wear a mask. There is no mask mandate at the courthouse and the state mandate was lifted months ago. The controversy highlights a conflict between a health policy set for the court system as a whole and the individual authority of judges over their courtrooms. Continue reading “North Carolina Judge Jails Prospective Juror for Not Wearing Mask in a Mask-Optional Courthouse”

Halakha Challenge: Three Kentucky Women Argue Abortion Law “Imposed Sectarian Theology on Jews.”

Among the slew of challenges to state abortion laws after the decision in Dobbs v. Jackson Women’s Health Organization, a newly filed action in Kentucky may be one of the most creative. The complaint by three Jewish women from Louisville seeks to block the state trigger law on the basis that it violates their religious rights since they do not believe that life begins at fertilization under Jewish law, or Halakha. I am highly skeptical of the religious claims, which have also been made in other states. Continue reading “Halakha Challenge: Three Kentucky Women Argue Abortion Law “Imposed Sectarian Theology on Jews.””

Has “Jim Eagle” Landed in Delaware? State Supreme Court Blocks Universal Mail-in Balloting

We recently discussed a federal court upholding the Georgia election law as constitutional, rejecting challenges based on voter suppression by a group associated with Democratic Georgia gubernatorial candidate Stacey Abrams. President Biden has denounced pre-2020 and post-2020 changes to the state election laws as not just “Jim Crow on steroids” but “Jim Eagle,” an awkward effort to suggest something more scary than Jim Crow. However, some of us pointed out that provisions criticized by the President are found in many blue states, including his own state of Delaware. Now, the Delaware Supreme Court has rejected a Democratic universal mail-in voting law as unconstitutional. Continue reading “Has “Jim Eagle” Landed in Delaware? State Supreme Court Blocks Universal Mail-in Balloting”

“Jim Eagle” Has Landed: A Federal Court Rejects Challenge to Georgia Election Law

Below is my expanded column in Fox.com on the recent decision finding the Georgia election law constitutional. That was the law widely denounced by President Joe Biden and other Democratic leaders as unconstitutional as a “new Jim Crow” law. The media repeated the claim despite some of us noting that the law fit well within existing precedent and even shared conditions with blue states like Delaware. Now that the challenge to election law changes denounced as voter suppression have been entirely rejected, there is little more than a shrug from some of the same figures and outlets.

Here is the column: Continue reading ““Jim Eagle” Has Landed: A Federal Court Rejects Challenge to Georgia Election Law”