Below is my column in the Hill newspaper on the recent criticism of the Roberts Court by a federal district judge. The law review article makes a stronger case for critics who view some judges are part of a deep bench movement against Trump. I do not see that pattern but I do view Judge Lynn Adelman as well outside of the navigational beacons for public commentary by federal judges.
Below is my column in The Hill newspaper on critical cases facing Chief Justice John Roberts this term as his impact as the new swing vote on the Court becomes more clear. In the oral arguments for Whole Woman’s Health v. Hellerstedt, Chief Justice Roberts appeared to be following his prior position in favor of state laws imposing conditions on abortion services. However, in that case and the recently accepted Obamacare appeal, Roberts will be exercising his swing vote while carrying a fair amount of baggage from earlier decisions.
In an extraordinary attack on the independence of the judiciary, Senate Minority Leader Sen. Chuck Schumer threatened Associate Justices Neil Gorsuch and Brett Kavanaugh with retaliation if they voted against abortion rights this term. As I discussed in my column yesterday, the Court heard oral arguments today in June Medical Services v. Russo. Schumer joined protests on the steps of the Court to warn the justices that they “will pay the price” if they vote against abortion rights. Chief Justice John Roberts issued a rare public rebuke (as he did earlier with President Trump) to defend the integrity of the judiciary. He was right to do so. Schumer sounded more like a stalker than a statesmen in his threats of future retaliation.
President Donald Trump has called upon both Supreme Court justices Sonia Sotomayor and Ruth Bader Ginsburg to recuse themselves from any cases involving his administration over their past comments. The trigger for this twitter storm is a recent rebuke by Sotomayor of her conservative colleagues where she suggested that they were showing bias in favor the Trump Administration. The statement of Sotomayor, which surprising to many of its directness, is not a basis in my view for such a recusal or disqualification.
I have long criticized Supreme Court Justice Ruth Bader Ginsburg for making comments on political issues to liberal and academic groups. While not unique on the Court in what I have called the era of “celebrity justices”, Ginsburg is something of recidivist in abandoning the long-standing avoidance of political discussions by justices as well as issues that are likely to come before the Court. Despite repeated controversies in speaking publicly on political issues, Ginsburg is clearly undeterred. This week, Ginsburg tripped both wires in discussing a matter in litigation and heading toward the Court while encouraging what would be a political campaign for a new constitutional amendment. As we have discussed, there is currently litigation over whether the Equal Rights Amendment was ratified by the recent vote in Virginia. Ginsburg did not wait for the appeal and announced that the ERA is dead. She then called for a new ERA movement. Both statements were inappropriate, but the statement on the status of the amendment was wildly at odds with standards of judicial restraint and ethics.
The Supreme Court delivered a major, if temporary, victory for the Trump Administration in the immigration field. The Administration has sought to implement the “public charge rule,” that would allow the denial of immigrants who will rely on public assistance, including most forms of Medicaid, food stamps and housing vouchers. In a brief order, the Supreme Court voted 5-4 to lift a nationwide injunction and allow the rule to be implemented while litigation continues.
Below is my column in the Washington Post on the real possibility that the Supreme Court could be pulled into the Senate impeachment trial if witnesses are allowed. If you hated Bush v. Gore, this could be one sequel that you will not want to see. Certainly few on the Court are eager to play a role in the possible removal of an American president.
The Supreme Court handed The Trump Administration a major win yesterday by lifting all injunctions on the new Trump asylum policy being enforced. That policy could result in a drastic reduction of asylum claims along the Southern Border since anyone who passes through another country like Mexico would have to first seek asylum in that country. The ruling is also a strong rebuke to the lower courts, particularly United States District Court Judge Jon Tigar in San Francisco who issued multiple orders to try to impose a national injunction.
I will be again joining a distinguished panel of experts at George Washington University this morning to kick off the new Term of the Supreme Court. The Supreme Court review will convene in the Jacob Burns Moot Court Room of the George Washington Law School at 9 am EDT (13:00 GMT/UTC) We will be discussing a number of leading cases this term as well as the current Court make-up.
A livestream will be available via the GW Law Facebook page. A link to more information is available here.
There is an interesting defamation case out of the Kavanaugh confirmation hearings. Professor Derrick Evans is suing Huffington Post for a September 2018 story on U.S. Supreme Court Justice Brett Kavanaugh and partying at Georgetown Prep school. The article alleged that Evans committed drug offenses in scoring drugs for friends, particularly cocaine. The most extraordinary — and potentially defamatory — claim was that Evans and his friend Douglas Kennedy not only regularly bought and distributed cocaine but supplied the cocaine in April 1984 that killed Douglas’ brother, David.
The Supreme Court ruled 5-4 on Friday in favor of the use of military funds for building new wall sections along our Southern Border. When the challenge was filed, I expressed doubt over its chances and said that I thought it would fail before the Supreme Court. It now has and the Trump Administration has a lot of money to build a lot of wall . . . just in time for the 2020 election cycle.
Below is my column in the Washington Post Sunday on the legacy of Supreme Court Justice John Paul Stevens. With roughly 35 years on the bench, he was the nation’s second oldest and third-longest serving justice.
Stevens will lie in repose at the Supreme Court on Monday. On Tuesday his funeral will be held and he will be buried at Arlington National Cemetery. I expect he would have preferred center field at Wrigley but this is a strong second option.
Below is my column in USA Today on the passing of Associate Justice John Paul Stevens. I have another column appearing today in the Sunday Washington Post’s Outlook Section. I remain surprised by the comparatively light coverage of the passage of this great man who gave so much to the country. I disagreed with Stevens on various cases, but I always held him in the highest regard as a person and as a jurist.
Below is my column on the end of the Supreme Court term and the one outstanding piece of business: an apology to Associate Justice Neil Gorsuch. After this column ran, Gorsuch again voted with the liberal justices on a critical due process issue. He has already carved out a principled legacy on the Court that follows his convictions rather than the predictions of his critics.