Category: Politics

Constitutional Law, Politics, Supreme Court

The Right to Exclude: The Supreme Court Delivers Haymaker Reversal of the Ninth Circuit In Major Takings Ruling

While not one of the matinee cases often discussed in the press, the Supreme Court handed down a major ruling this week on takings under the Fifth Amendment. In a 6-3 decision that broke along ideological lines (a departure from a long line of unanimous or non-ideological rulings), the court ruled in Cedar Point Nursery v. Hassid that a California law was a takings under the Constitution. As I mentioned yesterday, I expect to be teaching this case in the fall and it represents a very significant new precedent in the area. Continue reading “The Right to Exclude: The Supreme Court Delivers Haymaker Reversal of the Ninth Circuit In Major Takings Ruling” →

Congress, Constitutional Law, Courts, Media, Politics

Court Dismisses BLM Lawsuit Against Federal Agencies Over Lafayette Park Protests

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” →

Columns, Constitutional Law, Courts, Politics, Supreme Court

Biden’s Bad Run: Is The Biden Administration Doing Worse Than The Trump Administration In The Courts?

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.

Here is the column: Continue reading “Biden’s Bad Run: Is The Biden Administration Doing Worse Than The Trump Administration In The Courts?” →

Academia, Criminal law, Media, Politics

“Your Unethical Nature”: Northwestern Journalism Professor Trashes Columnist For Waiting For The Facts On Police Shooting

There is an interesting conflict playing out on the pages of the Chicago Tribune over the coverage of killing of Adam Toledo.  We previously discussed the shooting of Toledo after police responded to a shooting and the suspension of a prosecutor who noted that Toledo was armed. In a June 18 column,  Tribune columnist Eric Zorn defended his coverage in April that it “was still too soon to draw conclusions.” He specifically responded to Steven Thrasher, the Daniel H. Renberg Chair of social justice in reporting at Northwestern, who trashed him for his circumspection and insisted he was excusing the murder of a child and it’s ‘never too early’ to think they are worthy of murder.”  Thrasher’s view of ethical journalism was on display in Fort Lauderdale this week when its mayor declared that a tragic accident involving an elderly driver was an act of murder and terrorism by anti-LGBT forces. He also believed that it is never too soon to declare murder.

Continue reading ““Your Unethical Nature”: Northwestern Journalism Professor Trashes Columnist For Waiting For The Facts On Police Shooting” →

Courts, Justice, Lawyering, Politics

New Emails Show Unsuccessful and Unrelenting Pressure on Barr and Rosen from Trump to Intervene in the Election

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” →

Columns, Constitutional Law, Media, Politics

E Pluribus Unum: The Supreme Court Continues to Defy and Debunk its Critics

Below is my column in USA Today on the remarkably united and non-ideological line of cases handed down by the Supreme Court.  As Democratic leaders demand to pack the Court to create a liberal majority, the Court itself appears to be speaking through these cases.

Here is the column:

Continue reading “E Pluribus Unum: The Supreme Court Continues to Defy and Debunk its Critics” →

Congress, Courts, Media, Politics, Supreme Court

Will The Senate Democrats Now Apologize To Justice Barrett?

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?” →

Criminal law, Politics

The McCloskeys Plead Guilty To Minor Misdemeanors in Conclusion of St. Louis Protest Case
YouTube Screenshot

A year ago, we discussed the charges against Mark and Patricia McCloskey of St. Louis after their armed standoff with protesters.  I was highly skeptical of the charges brought by Circuit Attorney Kim Gardner, who was later removed from the case due to ethical concerns. Now, the couple has been allowed to plead to two minor misdemeanors in the conclusion of a highly politicized case.

Continue reading “The McCloskeys Plead Guilty To Minor Misdemeanors in Conclusion of St. Louis Protest Case” →

Bizarre, Criminal law, Justice, Media, Politics

Politico Fact Bombs New York Times Over Criticism of Leak Prosecutor

The New York Times faced a stinging contradiction from Politico this week after it ran a story besmirching the lead prosecutor in the leak investigation launched under former Attorney General Bill Barr. The article relies on anonymous sources to claim that Assistant U.S. Attorney Osmar Benevenuto of the District of New Jersey was brought in by Barr as part of his “small circle of trusted aides officials.”  In reality, it appears that Benevenuto was not initially selected by Barr and does not appear to have known him. Continue reading “Politico Fact Bombs New York Times Over Criticism of Leak Prosecutor” →

Academia, Free Speech, Politics

Northwestern Students Demand Removal Of Trustee Chair From Presidential Search Due To Trump Support

We have been discussing the rising intolerance for conservatives and Republicans on campuses around the country.  My alma mater, Northwestern University has been increasingly intolerant as a university due in large part to the failure of its president and the administration to protect free speech and diversity of viewpoints.  Now the student government has asked the university to remove the chairman of the board of trustees from a presidential search committee.  The disqualifying element for Board of Trustees Chair J. Landis Martin is that he supported former President Donald Trump as a donor.  Notably, the students emphasized that Northwestern is now so overwhelmingly liberal that even one conservative on the committee is offensive and threatening. Continue reading “Northwestern Students Demand Removal Of Trustee Chair From Presidential Search Due To Trump Support” →

Columns, Congress, Constitutional Law, Courts, Politics, Supreme Court

Confounding Its Critics: The Supreme Court Issues A Line Of Inconveniently Non-Ideological Opinions
Fred Schilling, US Supreme Court

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:

Continue reading “Confounding Its Critics: The Supreme Court Issues A Line Of Inconveniently Non-Ideological Opinions” →

Constitutional Law, Politics

“Discrimination at the Hands of Their Government”: Another Federal Court Has Halted a Federal Relief Program As Racially Discriminatory
(Official White House Photo/Adam Schultz)

President Joe Biden is facing an embarrassing and growing problem as he continues to declare his focus on ending racial discrimination: another federal court appears close to ruling that his Administration is engaging in raw racial discrimination. Milwaukee District Judge William Griesbach issued a temporary restraining order in Wisconsin halting Biden’s controversial $4 billion race-based federal relief program for farmers.  The awarding of relief based on race immediately raised objections of racial discrimination. The ruling is based on the court’s view that the white farmers challenging the program are likely to prevail. Continue reading ““Discrimination at the Hands of Their Government”: Another Federal Court Has Halted a Federal Relief Program As Racially Discriminatory” →

Columns, Constitutional Law, Justice, Media, Politics

A “Slippery, Bootlicking A.G.”? The Media Goes Silent As Garland Adopts Previously Denounced Positions Of Barr

Below is my column in The Hill on the recent decisions of Attorney General Merrick Garland to support the prior positions taken by his predecessor, William Barr, on issues ranging from the Lafayette Park protests to immigration to withholding information related to the Mueller investigation. Positions that were once denounced by media and legal experts as raw partisanship have now been adopted by the Biden Administration with little acknowledgement from those same figures.

Here is the column:

Continue reading “A “Slippery, Bootlicking A.G.”? The Media Goes Silent As Garland Adopts Previously Denounced Positions Of Barr” →

Courts, Lawyering, Media, Politics

“Wholly-Owned Subsidiary of the Gun Lobby”: Newsom Attacks Federal Judge Who Ruled In Favor Of Gun Rights

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.

Continue reading ““Wholly-Owned Subsidiary of the Gun Lobby”: Newsom Attacks Federal Judge Who Ruled In Favor Of Gun Rights” →

Media, Politics

“Lingering Questions”: The Post Issues Bizarre Response To IG Report Debunking Its Past Claims

In 2016, Karen Tumulty wrote a column in the Washington Post titled “Trump: Never Wrong, Never Sorry, Never Responsible” that criticized Donald Trump as someone who refused “to take ownership of the outrageous things he has said and done.”  Tumulty’s column came to mind this week when the Washington Post faced a federal report that debunked literally dozens of Post articles on the clearing of the Lafayette Square area on June 1, 2020. The Interior Department’s Inspector General unambiguously refuted the claim that former Attorney General Bill Barr ordered the clearing to allow Trump to hold his controversial photo op in front of St. John’s Church. The Post (which proclaims that “Democracy Dies In Darkness”) shed little light on its own role in the fostering of this conspiracy theory. Continue reading ““Lingering Questions”: The Post Issues Bizarre Response To IG Report Debunking Its Past Claims” →