There is a new ruling out of the United States Court of Appeals for the Tenth Circuit that could be headed for a major showdown in the Supreme Court. The decision in 303 Creative LLC v. Elenis could force a hitherto evasive Court to rule directly on the conflict between anti-discrimination laws and the religious clauses. I have previously written that I view these controversies as best addressed as free speech rather than free exercise cases. The Tenth Circuit decision reaffirms a growing conflict among the circuits and offers an especially strong case for the Court to consider such a major reframing of such conflicts. Continue reading “Tenth Circuit Rules Web Designer Must Create Site For Same-Sex Marriage”
Below is my column in The Hill newspaper on the renewed calls for the investigation of Justice Brett Kavanaugh. The often over-heated coverage however omits key factual and legal context for a new report.
Here is the column:
Below is my column in the Hill on a series of cases that appear propelled by political rather than legal considerations. The costs to the legal system, the public, or victims in such cases are often overlooked but they are considerable.
Here is the column:
We recently discussed the Inspector General report on the Lafayette Park protests and the debunking of claims that the federal government and specifically Attorney General Bill Barr cleared the area for the controversial photo op of President Donald Trump in front of St. John’s Church. For a year, legal and media experts have stated as fact that area was cleared for that purpose and that Barr was lying about the federal agencies using tear gas as opposed to pepper balls (even though the legal and practical difference is largely immaterial). Some tried to keep the myth alive by criticism the IG report and its scope. Now, federal judge Dabney L. Friedrich has dismissed the lawsuit by the ACLU and Black Lives Matter as based on unsupported and unsubstantiated claims against the federal agencies. Ironically, the court allowed the lawsuit against the MPD under Mayor Muriel Bowser to continue. The Bowser Administration admitted recently that it used tear gas near the park on that night and that such use was perfectly reasonable. Both the Bowser and Biden Administrations sought to dismiss the BLM lawsuit as unfounded and unsupportable — a striking departure from what Bowser has stated publicly. Continue reading “Court Dismisses BLM Lawsuit Against Federal Agencies Over Lafayette Park Protests”
Below is my column in the Hill on the growing number of losses by the Biden Administration in courts around the country, including a particularly embarrassing loss before the United States Supreme Court. What is notable is that such losses in the early days of the Trump Administration led to coverage declaring a war on the “rule of law” and even indications of authoritarianism. The Biden losses have received little coverage despite what could be a worst record in the early days of his Administration. The fact is that such adverse decisions are not uncommon as Administrations try to fast track changes. However, the Biden Administration has actually had some very serious losses, including some which are being appealed. Yet, many previously outspoken legal experts have either blamed conservative judges or simply ignored the losses all together. It is a continuation of an interesting pattern where Democrats are adopting the very rationales that they once denounced.
Newly released emails show the pressure brought by the White House on both former Attorney General Bill Barr and his brief successor, acting Attorney General Jeffrey Rosen, to intervene in the 2020 election. Both Barr and Rosen refused to intervene and pushed aside numerous efforts to arrange meetings with Trump counsel and to file federal complaints. What is astonishing is the degree to which these pressures continued in the brief period in which Rosen served as acting Attorney General in the final days of the Administration. Continue reading “New Emails Show Unsuccessful and Unrelenting Pressure on Barr and Rosen from Trump to Intervene in the Election”
During the confirmation hearings of now Justice Amy Coney Barrett, I repeatedly objected to the clearly false narrative that she was nominated to vote to strike down the Affordable Care Act in the pending case of California v. Texas. The case was highly unlikely to result in such a decision and the Democrats knew it. The case was focused on a highly technical and limited issues of severability. It would either be resolved on that limited basis or dismissed for standing. While Barrett might view the ACA as unconstitutional (as many do), I noted that she was more likely to dismiss the challenge or sever the individual mandate than to strike down the Act in the case. That is what she did in joined the 7-2 decision to dismiss the case. Continue reading “Will The Senate Democrats Now Apologize To Justice Barrett?”
Below is my column in The Hill on decisions issued by the Supreme Court in recent weeks and how they have served as a retort to those who are calling for court packing or major changes in the institution. As noted below, we expect to see more ideological divisions emerge this and next week in some of the outstanding “big ticket” decisions. However, the Court seems to have front-loaded a line of cases refuting the arguments that it is dysfunctionally and hopelessly divided along ideological lines. Today, the Supreme Court issued two more nearly unanimous decisions (with only Justice Sotomayor concurring and dissenting in part in both decision). The decisions were Terry v. United States and Greer v. United States.
Here is the column:
Remember when networks and legal experts (correctly) denounced President Donald Trump for his attacks on judges who ruled against him? Two years ago, I ran a column noting that Democrats were adopting the same attacks on conservative judges but the media was entirely silent. Now, California Gov. Gavin Newsom and Democrats are lambasting a federal judge who ruled in favor of gun rights in a recent decision — accusing him of being in the pocket of the NRA and a danger to the country. The response to Newsom’s attack from all of those same media and legal experts has ranged from outright support to conspicuous silence.
For many years, I have been critical of politicians running on promises of sweeping gun control legislation that would violate controlling case law under the Second Amendment. After every mass shooting, politicians pledge that they will get guns out of society when they know that such promises mislead voters on the range of permissible action in the area. In reality, the range of permissible legislative action is quite limited. Moreover, limits on things like clip capacity are unlikely to make a significant difference in gun violence. Now, a federal judge has struck down California’s three-decade-old ban on assault weapons as a violation of the Second Amendment. The decision could be raised in the ongoing consideration of the nomination of David Chipman, who President Joe Biden wants to head the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
Below is my column in the Hill on the District of Columbia not only admitting that it used tear gas on June 1 last year near Lafayette Park, but also defending the use as entirely appropriate to enforce the curfew order of Mayor Muriel Bowser. The media has avoided on the story despite Bowser’s previous condemnations of the alleged use of tear gas that night by the federal agencies. (The federal agencies claimed to have use pepper balls but the affect is largely the same). Both the Bowser and Biden Administrations are seeking to dismiss the Black Lives Matter lawsuit. Yet, the host of legal experts and media who condemned the use of tear gas and the clearing of the Lafayette park area last year are entirely silent on the disclosures.
In the movie The Last Jedi, Supreme Leader Snoke observes “My disappointment in your performance cannot be overstated.” It appears that Snoke could find like minds on the United States Court of Appeals for the Ninth Circuit. In Briseno v. Henderson, Judge Kenneth K. Lee took a rather broad view of “judicial notice” to declare recently that the 2017 movie was “mediocre and schlocky.” Continue reading “Taking Judicial Notice? Ninth Circuit Denounces The Last Jedi As “Mediocre and Schlocky””
Today the Supreme Court issued two more unanimous decisions in Garland v. Dai and United States v. Cooley. This follow two unanimous decisions last week. The weekly display of unanimity is notable given the calls by Democratic leaders to pack the Court. Yesterday, I wrote about how the heavy-handed campaigns might backfire with the justices. As we await important and likely divided decisions on issues like abortion, Chief Justice John Roberts and his colleagues seem to be sending a message that the Court is not so rigidly ideological as Democratic members and activists suggest. Continue reading “Unpacked and Undivided: Is The Court Sending A Message With A Litany Of 9-0 Decisions?”
I have previously criticized Sen. Richard Blumenthal, D-Conn., for his almost unrivaled advocacy of censorship and speech controls. Blumenthal previously threatened social media companies not to “backslide” in censoring opposing views. Now, Blumenthal is taking up the cudgel of court packing with not so subtle threats to conservative justices that, if they do not vote with their liberal colleagues, the Court may be fundamentally altered. He is not alone in such reckless and coercive rhetoric.
Below is my column in The Hill newspaper on the announcement that the University of California will now join the “test-blind” movement and end the use of the SAT and ACT in its admissions decisions. Some have called for the change to increase diversity in the schools, particularly after California voters refused to change the long ban on affirmative action in education under state law.
Here is the column: