Category: Courts

Columns, Courts, Supreme Court

The Django Syndrome: What the Latest Racist Attacks on Clarence Thomas Say About Our Rage Politics
In July 1991, Clarence Thomas, a relatively unknown D.C. Circuit judge, was nominated by President George H.W. Bush to replace Thurgood Marshall on the United States Supreme Court. Thomas soon found out that the only thing more perilous than replacing a historical icon on the Court is replacing a liberal with a conservative. Thomas would become an icon in his own right for conservatives: an unyielding defender of textualism and conservative jurisprudence. Yet, liberals seem more preoccupied by his race than his rigidity. This week, a leading Democrat, Minnesota Attorney General Keith Ellison unleashed another openly racist attack on Thomas and neither the media nor the political establishment condemned the remarks.

Continue reading “The Django Syndrome: What the Latest Racist Attacks on Clarence Thomas Say About Our Rage Politics” →

Constitutional Law, Courts, Supreme Court

Locked and Loaded: Third Circuit Declares Federal Gun Law Unconstitutional Over Ex-Felon Rights

Yesterday, the United States Court of Appeals for the Third Circuit handed down a major ruling in favor of the Second Amendment rights of ex-felons. At issue was the federal “felon-in-possession” law—18 U.S.C. § 922(g)(1), which bars ex-felons from possession of firearms. While it is always risky to bet on granting of review before the Supreme Court, this en banc decision is well positioned for a Supreme Court showdown over the Second Amendment. Continue reading “Locked and Loaded: Third Circuit Declares Federal Gun Law Unconstitutional Over Ex-Felon Rights” →

Constitutional Law, Courts

Federal Judge Enjoins Illinois’ Assault Weapon Ban

In a major victory for gun rights advocates, U.S. District Judge Stephen McGlynn has granted a preliminary injunction of Illinois’ ban on assault weapons and large capacity magazines. The decision comes after two other district courts ruled in favor of the law — sending this issue to the United States Court of Appeals for the Seventh Circuit and potentially the Supreme Court.  These long-awaited challenges will test the Democratic calls for removing all AR-15s and similar weapons, including calls from President Joe Biden.

Continue reading “Federal Judge Enjoins Illinois’ Assault Weapon Ban” →

Courts, Media, Politics, Supreme Court

Alito: I Know Who Likely Leaked the Dobbs Decision

In a surprising statement to The Wall Street Journal today, Supreme Court Justice Samuel Alito says he has a “pretty good idea” who leaked a draft opinion in Dobbs v. Jackson Women’s Health Organization. He strongly suggested that it was someone who opposed the opinion and wanted to pressure the justices not to go forward with the overturning of Roe v. Wade.

 

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Columns, Constitutional Law, Courts, Free Speech, Politics, Supreme Court

Floral Free Speech: Liberals in Tennessee are Making the Case for Conservative Justices

Below is my column in The Hill on the recent controversy of a Tennessee Florist shop refusing to serve Republicans and encouraging others to do the same. It is a timing boycott as we await the decision in 303 Creative v. Elenis.

Here is the column:

Continue reading “Floral Free Speech: Liberals in Tennessee are Making the Case for Conservative Justices” →

Academia, Courts, Free Speech, Lawyering

“WTF is Wrong with You”: Columbia Center and Law Students Protest Meeting With Justice Kavanaugh

Columbia University law students and alums are in an uproar over an Instagram post that showed students in the Federalist Society meeting with Supreme Court Justice Brett Kavanaugh at the Court. It would ordinarily be a singular experience for law students to spend time with one of the nine justices. That is not how it went over at Columbia where some are outraged by the meeting and Columbia’s posting the picture on its social media account. The Empowering Women of Color group announced it was “withdrawing our participation from Columbia Law School recruiting events.” Columbia’s own Center for Engaged Pedagogy, simply declared “WTF is wrong with you.” Continue reading ““WTF is Wrong with You”: Columbia Center and Law Students Protest Meeting With Justice Kavanaugh” →

Courts, Lawyering, Politics

New Orleans Judge Under Fire for Failing to Disclose Interest in Mayoral Recall Effort

Jennifer Medley is one of many citizens who appear fed up with the crime and poor management of New Orleans. Medley reportedly joined thousands of others in signing a petition to recall New Orleans Mayor LaToya Cantrell. As a single mom working in the city, she has good reason to be concerned. However, Medley is also a judge. Indeed, she is the very judge that just ruled on the recall effort without disclosing that her name is one of those seeking the recall. Continue reading “New Orleans Judge Under Fire for Failing to Disclose Interest in Mayoral Recall Effort” →

Constitutional Law, Courts, Criminal law, Free Speech, Supreme Court

Pot Shop Owner Faces Possible Criminal Charge After Profane Diatribe Against Police Officer

A video has gone viral of the owner of a Washington state dispensary unleashing a profanity-laced verbal attack on state trooper, Yasin Anwar, who pulled over a driver near the Green Seed in Moses Lake, Washington, a marijuana shop. The owner has been identified as Amy Dalluge, who reportedly has a history of problems with the police. Some are calling for charges. As outrageous and unhinged as the verbal attack was, I do not agree that such verbal abuse should be criminally charged as a matter of free speech. Continue reading “Pot Shop Owner Faces Possible Criminal Charge After Profane Diatribe Against Police Officer” →

Constitutional Law, Courts

Federal Judge Suggests Abortion May Be Protected Under 13th Amendment’s Ban on Involuntary Servitude

Judge Colleen Kollar-Kotelly in the District Court for the District of Columbia has caused a bit of a stir after a hearing in a criminal case where she called for briefing on the alternative grounds for the right to an abortion. At the hearing, Judge Kollar-Kotelly suggested that the Thirteenth Amendment’s ban on involuntary servitude could be used to guarantee a women’s right to an abortion notwithstanding the Court’s recent opinion in Dobbs v. Jackson Women’s Health Organization. The court stressed that the decision that there is no federal constitutional right to an abortion was based on the 14th Amendment, but was silent on the 13th Amendment or other grounds. The problem is that silence may be the most charitable response to this highly dubious theory, which has been bantered about in academic circles for years. The theory runs against the text, history, and case law of the Thirteenth Amendment.

Continue reading “Federal Judge Suggests Abortion May Be Protected Under 13th Amendment’s Ban on Involuntary Servitude” →

Constitutional Law, Courts, Criminal law, Justice

“The Framers Weren’t Perfect, but They Weren’t Fools”: Biden Administration Loses Another Gun Rights Case

We recently discussed the ruling of the United States Court of Appeals for the Fifth Circuit striking down a ban on gun ownership by individuals accused of domestic abuse. Now, U.S. District Judge Patrick Wyrick in Oklahoma City dismissed an indictment against Jared Michael Harrison for violating a federal law that makes it illegal for “unlawful users or addicts of controlled substances” to possess firearms. It is only the latest such loss for the Justice Department as the Biden Administration pushes sweeping rationales for limiting Second Amendment rights in the wake of last year’s ruling in New York State Rifle & Pistol Association v. Bruen.

Continue reading ““The Framers Weren’t Perfect, but They Weren’t Fools”: Biden Administration Loses Another Gun Rights Case” →

Constitutional Law, Courts, Free Speech

Masterpiece Cakeshop Loses Appeal Over Gender Transition Cake

Jack Phillip, the Colorado baker who brought the challenge in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission has again lost an appeal in Colorado state court. After the Supreme Court effectively punted on the issue of his free speech and free exercise challenges to the Colorado Anti-Discrimination Act (“CADA”), which protects against the denial of service in a place of public accommodation based on one’s identity. After the 2018 decision, Phillip faced additional demands including the creation of a gender transitioning cake. The Colorado Court of Appeals ruled on Thursday that the refusal to make the cake requested by Autumn Scardina did not constitute free speech. Continue reading “Masterpiece Cakeshop Loses Appeal Over Gender Transition Cake” →

Constitutional Law, Courts, Free Speech

Court Enjoins California’s Bar on Doctors Giving “False Information” on Covid

With the recent passage of AB 2098, California took a highly controversial step in barring doctors from offering “false information” on Covid-19 and related subjects. The law is an extension of Democratic efforts to block  or censor “misinformation” and “disinformation” in society from social media to medicine. However, this effort involves direct government action. As will come as little surprise to many on this blog, I opposed the measure as unconstitutionally vague and a threat to free speech. Nevertheless, Judge Fred Slaughter (C.D. Cal.) in McDonald v. Lawson held that this statute was likely constitutional and rejected a motion for a preliminary injunction. Now, however Judge William Shubb (E.D. Cal.) has reached the opposite conclusion in Hoeg v. Newsom, granting an injunction. Continue reading “Court Enjoins California’s Bar on Doctors Giving “False Information” on Covid” →

Constitutional Law, Courts, Religion, Supreme Court

Supreme Court Takes Major Religion Case: Postal Worker Asks Court to Toss Long-Standing Test for Religious Accommodation

The Supreme Court has granted certiorari in a potentially major case on the free exercise of religion.  Groff v. DeJoy involves evangelical Christian postal worker, Gerald Groff, who alleges that the the U.S. Postal Service (USPS) forced him out of his job when he refused to work on Sundays due to his faith. The case could either overturn or reaffirm the earlier ruling in TWA v. Hardison, which stated that employers need not offer religious accommodation if doing so would cause an “undue hardship” to the business. Continue reading “Supreme Court Takes Major Religion Case: Postal Worker Asks Court to Toss Long-Standing Test for Religious Accommodation” →

Constitutional Law, Courts, Criminal law, Politics, Supreme Court

Set for a Supreme Showdown? The Fifth Circuit Rejects Bump Stock Ban In Contrast to Other Circuits

The United States Court of Appeals for the Fifth Circuit has handed down a major opinion in Cargill v. Garland, No. 20-51016, ruling 13-3 that the ATF ban on bump stocks is unlawful. The en banc decision found that a bump stock may be many things but it is not a machine gun. Continue reading “Set for a Supreme Showdown? The Fifth Circuit Rejects Bump Stock Ban In Contrast to Other Circuits” →

Constitutional Law, Courts, Free Speech, Politics

Ninth Circuit Rules That an Advisory Board Member Can Be Fired Over Antifa Association

There is an interesting free speech decision out of the United States Court of Appeals for the Ninth Circuit this week. In Lathus v. City of Huntington Beach, a unanimous panel ruled that a member of a municipal advisory board can be fired for her association with Antifa. The opinion is clearly correct on a constitutional level, but there are some troubling elements given the underlying exercise of speech under the First Amendment.

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Res ipsa loquitur – The thing itself speaks