The U.S. Supreme Court delivered a surprising blow to pandemic restrictions on house of worship in a late night order barring the enforcement of New York Gov. Andrew Cuomo’s Oct. 6 “Cluster Initiative” limiting attendance at religious services. Five justices (including newly installed Justice Amy Coney Barrett) blocked the limits while allowing the United States Court of Appeals for the Second Circuit to hear the merits in the case. Notably, Chief Justice John Roberts voted with the liberal justices but only because he felt that the order was not needed since the plaintiffs were not currently subject to the most severe limits. Continue reading “The Supreme Court Bars Cuomo’s Pandemic Limits On Houses of Worship”
The Third Circuit has issued an opinion that has received little attention over the right to bear arms, but it should. The decision in Folajtar v. The Attorney General of the United States may be one of the most perfectly tailored case for major Supreme Court decision. Indeed, the only thing lacking from the 2-1 decision is a mailing label directly to Justice Amy Coney Barrett. In ruling that a non-violent tax conviction can result in the denial of gun ownership, the panel presents a clean case to further define the contours of the individual rights recognized in District of Columbia v. Heller, 554 U.S. 570 (2008).
This week I criticized Supreme Court Justice Samuel A. Alito for a speech that he gave to the Federalist Society. That should come as no surprise since I have spent two decades criticizing justices for such controversial public addresses. However, I was struck in the last couple days by the politicians like Sen. Elizabeth Warren and liberal faculty members who are falling over themselves in utter disgust with such public commentary from a sitting justice. For years, I criticized the far more egregious comments from Justice Ruth Bader Ginsburg without a peep of protest from people like Warren. Instead, Ginsburg became the “Notorious RBG.” There is, however, no place for a Notorious SAA in the media or academia.
Justice Sam Alito is making headlines after his speech last night as the keynote at this year’s all-virtual Federalist Society National Lawyers Convention. Alito slammed pandemic measures and attacks on free speech in his remarks to the Convention, including the crackdown on “unfashionable views” in our society. I happen to agree with some of his points, but I have great reservations over a justice speaking on issues that are likely to come before him on the Court. Indeed, I have long been a critic of the Supreme Court justices engaging in public appearances where they hold forth on contemporary issues. I have been particularly critical of the late Justice Antonin Scalia and Justice Ruth Bader Ginsburg who clearly relished appearances before ideologically supportive groups. Continue reading ““Unfashionable Views”: Justice Alito Speaks Out Against Pandemic Restrictions, Contraception Laws, and Other Controversies”
Yesterday’s oral argument before the Supreme Court was most notable in the collapsing of the false narrative used by many Democratic senators and media figures in the Barrett confirmation that the Affordable Care Act was close to being overturned in the case of California v. Texas. That conspiracy theory (of which suggested that the rush to confirm Barrett was to supply the final needed vote) was shattered when both Chief Justice John Roberts and Associate Justice Brett Kavanaugh repeated their position in favor of severance — a position that would guarantee the survival of the ACA. What was equally notable however was the slightly pathetic scene of Roberts effectively acknowledging that he might have been a chump in accepting the arguments on the individual mandate eight years ago in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). For years, Roberts has been on a collision course with himself — and yesterday he had a one-person pileup.
During the Barrett confirmation hearing, we discussed the narrative of the Democrats and the media that the Affordable Care Act was dangling in the balance on the Supreme Court. With huge pictures of beneficiaries of the ACA displayed around the room, some Democratic senators actually said that Barrett was part of a conspiracy to rush her to the Court to kill the ACA. As I repeatedly said, the narrative was entirely disconnected from any legal reality since at least two conservative justices — Chief Justice John Roberts and Brett Kavanaugh — were likely to vote for severability and thus preserve the Act. They previously voted on similar cases. Today’s oral argument in It’s Obamacare day at the Supreme Court. In California v. Texas again exposed the unfair and unfounded narrative against Justice Barrett with both Roberts and Kavanaugh expressly reaffirming their positions on the severability. Will any of these senators or analysts now acknowledge that the hype in the hyperbole from the hearing?
While the origin of the nickname has been hotly debated, many trace back New York’s moniker as “The Empire State” to a comment attributed to George Washington who observed that the state’s key geographic advantages smacked of the “Seat of an Empire.” After reading the new guidelines issued by Governor Andrew M. Cuomo for out-of-state travelers, one could easily conclude that he was taking the state nickname literally. Outsiders are subject to restrictions akin to traveling to another country. The question is whether those limitations will withstand judicial review. It could prove a close question on a couple of specific conditions.
My column this morning in the Hill discussed a call by columnist and professor Norm Ornstein to impeach Amy Coney Barrett if she does not yield to a demand to recuse herself from any election challenge before the Court. A demand for such recusal was filed yesterday in the Supreme Court. Ornstein’s call for impeachment is the latest unhinged response to Barrett nomination and further decouples our national debate from any sense rationality and restraint.
Below is my column in The Hill newspaper on the range of options referenced by Vice President Joe Biden in the last debate that may be considered by his new “commission” for reforming the Supreme Court. It is worth looking at the parade of horribles proposed by academics for changing the Court to legislatively negate the majority of conservative justices after the addition of Amy Coney Barrett to the Court (as early as today). The concern is that this is little beyond enablement by commission as Democrats claim license to do lasting harm to one of the most important institutions in our constitutional system.
Here is the column:
We have discussed the growing intolerance for opposing views of politics or the law on our campuses. The most recent example is small but highly illustrative. The sorority Kappa Delta has issued an abject apology. The reason is that the sorority committed the unforgivable sin of tweeting out a congratulations to Judge Amy Coney Barrett, a member of the sorority at Rhodes College, on her nomination to the Supreme Court. One should not have to agree with Barrett’s judicial philosophy to offer a simple attagirl to a sorority sister for her extraordinary accomplishment. However, other members protested that this simple act of civility was “hurtful” and traumatic to them as fellow members. The most notable however was feminist writer Amy Siskind who previously was attacked on Twitter for her own views opposing Black Lives Matter and supporting such political figures as John McCain and Sarah Palin. It is a tale of two Amys and one is being shunned for defending her long-held views and one is being celebrated for dispensing with them.
Below is my column in the Wall Street Journal on nomination of Amy Coney Barrett. While the confirmation hearing often seemed weirdly disconnected to the nominee, there were important moments where the jurisprudential views of Judge Barrett were expressed with striking — and rare — clarity.
Below is my column in the Hill on the nomination of Judge Amy Coney Barrett and the oddly disconnected questions during her confirmation hearing. While I have written about the revealing moments of the hearing, the Democrats clearly elected not to focus on the nominee but the election. When they did attack the nominee, they fired wildly and missed completely in three areas.