Category: Courts

Columns, Congress, Courts, Lawyering, Politics, Supreme Court

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” →

Constitutional Law, Courts, Torts

“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” →

Columns, Constitutional Law, Courts, Media, Politics, Supreme Court, Torts

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?” →

Columns, Constitutional Law, Courts, Politics

“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 declared “Republicans 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” →

Columns, Congress, Constitutional Law, Courts

“This the Constitution Forbids”: Biden’s Race and Gender Criteria for the Court Were Rejected By The Court in Past Cases

Below is my column in the Wall Street Journal on President Joe Biden’s promise almost two years ago that he would only consider a black female for the first vacancy on the Supreme Court. The column produced a significant response from commentators. However, in all of the commentary that followed the column, no one is contesting the primary point: that this type of exclusionary rule has been found unconstitutional or unlawful in schools or businesses.  While there may be legitimate points of distinction with a Court appointment, there is little discussion of why we should use a threshold exclusionary rule for admission to the highest court that the Court would not allow in any admission to a school or business. It is worth discussing even if one believes that the Court membership is a type of bona fide occupational qualification or if one simply rejects the very premise of the Court’s barring such criteria in past cases. The benefit of having a diverse Court is obvious but, if we want to use an express exclusionary rule, we should be able to discuss why it is appropriate for the Court and those institutions or businesses barred in past case.

Instead, commentators suggested that I ignored that prior presidents made such preferential picks. That is not true. My point was that Biden’s pledge was entirely unnecessary since he could have stated that he wanted to appoint a black female without barring consideration of other candidates on the basis of their race or gender. It is the difference between a preferential and exclusionary process. Commentators insisted that Ronald Reagan, Donald Trump, and George H.W. Bush made the same pledge. That is also false. While seeking to appoint women and African Americans, none of the three excluded other races or genders from consideration and had diverse short lists. Yet, even if they did, the question remains: should admission to the Court be based on an exclusionary threshold qualification that the Court has rejected as unconstitutional or unlawful for schools and businesses?

Here is the column: Continue reading ““This the Constitution Forbids”: Biden’s Race and Gender Criteria for the Court Were Rejected By The Court in Past Cases” →

Courts, Media, Torts

Second Circuit Refutes Allegations Involving Law Clerk in Mediaite, Above the Law, and Other Publications

On October 5, 2021, the site Above the Law ran a story by Senior editor Kathryn Rubino about what she described as a vehemently racist law student who was given a prestigious clerkship by William H. Pryor Jr., chief judge of the United States Court of Appeals for the Eleventh Circuit. Above the Law has a long history of attacking conservatives, free speech advocates, and others deemed right of center. This story (which appeared earlier on sites like Mediaite) was perfect from that perspective and lit up the liberal media. That included a column by Washington Post’s Ruth Marcus asking “Why is a prominent federal judge hiring a law clerk who said she hates Black people?” The problem is that the Second Circuit found little evidence that it is true. The question is whether the accused student, Crystal Clanton, will now sue ATL, Mediaite, and other media outlets for defamation.

Continue reading “Second Circuit Refutes Allegations Involving Law Clerk in Mediaite, Above the Law, and Other Publications” →

Columns, Constitutional Law, Courts, Politics, Supreme Court

Tick, Tick, Tick…: The Supreme Court Readies an Explosive Docket for 2022

Below is my column in the Hill on upcoming year for the Supreme Court. The Court’s docket is likely to put the institution at ground zero of a heated election year. Major decisions on abortion and gun rights are expected by June 2022. Even with Chief Justice John Roberts denouncing attempts at “inappropriate political influence” on the Court, the threats of Court packing and other measures are likely to become even more shrill as these decisions rollout in the new year.

Here is the column: Continue reading “Tick, Tick, Tick…: The Supreme Court Readies an Explosive Docket for 2022” →

Congress, Constitutional Law, Courts, Politics

“Inappropriate Political Influence”: Chief Justice John Roberts Responds to Threats Against the Court

Chief Justice John Roberts used his year-end report on New Year’s Eve to denounce the threats being made against the Court and its members by Democratic politicians and groups, including threats to pack the Court to force an immediate liberal majority. Roberts referred to such threats as efforts to exercise “inappropriate political influence” on the Court in contravention of our constitutional values and traditions. Continue reading ““Inappropriate Political Influence”: Chief Justice John Roberts Responds to Threats Against the Court” →

Constitutional Law, Courts, Politics, Supreme Court

“Dire” for Democracy? New York Mag Columnist Decries the Popularity of Chief Justice Roberts
Columns, Constitutional Law, Courts

The Rise of Gotcha Legislation: Newsom and DeSantis are Legislating Soundbites and Voters are Loving it.

Below is my column in The Hill on the recent bills proposed in Florida and California on immigration and guns. The bills are the latest examples of “gotcha legislation,” though the Florida bill could raise some interesting legal questions if Gov. Ron DeSantis moves forward with his plan on relocating undocumented persons to Delaware.

Here is the column: Continue reading “The Rise of Gotcha Legislation: Newsom and DeSantis are Legislating Soundbites and Voters are Loving it.” →

Academia, Constitutional Law, Courts

Wisconsin Voter ID Law for College Students Upheld

U.S. District Judge James Peterson this week upheld Wisconsin’s voter identification rules for college students. Common Cause and other groups challenged the requirement that student IDs display the student’s signature, an issuance date, and an expiration date. Peterson found that such rules were rationally related to the purpose of combatting voter fraud. Continue reading “Wisconsin Voter ID Law for College Students Upheld” →

Constitutional Law, Courts, Politics

Send Lawyers, Guns, and Money: Newsom Calls For Gun Ban Modeled on Texas Abortion Law

California Gov. Gavin Newsom thrilled many this weekend by saying that his administration will model a new law on Texas’ abortion ban that would let private citizens sue anyone who makes or sells assault weapons or ghost guns. It won’t work. Legally, that is. It will be hugely successful politically, but not without costs to the state and potential litigants. Continue reading “Send Lawyers, Guns, and Money: Newsom Calls For Gun Ban Modeled on Texas Abortion Law” →

Constitutional Law, Courts, Supreme Court

Supreme Court Rejects Injunction of Texas Abortion Law But Allows the Challenge to Proceed in Lower Court

The Supreme Court issued decisions today in the pending issues in Whole Woman’s Health v. Jackson and United States v. Texas. As anticipated in the earlier column, the Supreme Court did not grant an injunction and dismissed the Biden Administration’s lawsuit. The Court again rejected the notion of enjoining the judge and clerk but it did identify some private parties who can be sued as part of a pre-enforcement action. That represents a partial victory for pro-choice litigants, but the Court returned to a single track for its abortion review. That track originates in Mississippi, not Texas. Dobbs will remain the key decision on reproductive rights and is likely to answer many of the questions in the ongoing Texas litigation. Continue reading “Supreme Court Rejects Injunction of Texas Abortion Law But Allows the Challenge to Proceed in Lower Court” →

Columns, Constitutional Law, Courts, Politics, Supreme Court

Court on a Hot Tin Roof: Airing Out “the Stench” from the Oral Argument Over Abortion

Below is a version of my column in The Hill on the statement of Justice Sonya Sotomayor on the “stench” of politics in the oral argument in Dobbs v. Jackson Women’s Health Organization, a challenge to the Mississippi abortion law. The statement seemed directed at Sotomayor’s three new colleagues and the effort to use the new court composition to seek the reduction or overturning of Roe v. Wade.

Here is the column: Continue reading “Court on a Hot Tin Roof: Airing Out “the Stench” from the Oral Argument Over Abortion” →

Courts, Media

MSNBC Banned From Rittenhouse Trial [Updated]

Judge Bruce Schroeder has banned MSNBC from the Kenosha County Courthouse following an incident where an employee allegedly followed the bus with the jurors.  It is difficult to express how moronic such a decision would be for a network. (For the record, I once worked for NBC/MSNBC as a legal analyst. I have also worked for CBS, BBC, and currently Fox). Update: NBC issued a statement below.

Continue reading “MSNBC Banned From Rittenhouse Trial [Updated]” →