Category: Supreme Court

The Perpetual Impeachment: House Democrats Tell The Supreme Court That They Are Preparing For A New Impeachment

HouseofRepSealOn Monday, the House Democrats filed a brief that with the Supreme Court that the House was actively pursuing new articles of impeachment against President Donald Trump including “the possible exercise of improper political influence over recent decisions made in the Roger Stone and Michael Flynn prosecutions, both of which were initiated by the special counsel.” The argument is meant to justify the continued demand for redacted grand-jury material from the now closed Special Counsel investigation into the Russian collusion investigation.

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A “Radical Transformation”: Supreme Court Unanimously Overrules The Ninth Circuit

Supreme CourtIn an unanimous opinion, Justice Ruth Bader Ginsburg excoriated the United States Court of Appeals for the Ninth Circuit for “an abuse of discretion” when it brought in third parties to argue the case and ruled on that basis.  That approach “drastically” changed the judicial norms of having the parties present arguments.  The Ninth Circuit opinion was written by A. Wallace Tashima who ruled with Marsha S. Berzon, and Andrew D. Hurwitz.  Hurwitz was brought into the case after Judge Stephen Reinhardt died. Continue reading “A “Radical Transformation”: Supreme Court Unanimously Overrules The Ninth Circuit”

Supreme Court Unanimously Throws Out Bridgegate Convictions — And Rejects Prior Legal Arguments Against Trump

Supreme CourtThe Supreme Court today unanimously threw out the convictions of  Bridget Kelly, a former aide to Christie, and Bill Baroni, a former Port Authority official, for their role in  “Bridgegate.” The dispute involved  the controversial closing of lanes on the George Washington Bridge to create traffic problems for the mayor of Fort Lee, N.J., who had refused to endorse Christie.  Notably, the Court rejected the very arguments raised by some experts against Trump and relied on some of the same analysis that I raised in my testimony in the Trump impeachment against such claims. Continue reading “Supreme Court Unanimously Throws Out Bridgegate Convictions — And Rejects Prior Legal Arguments Against Trump”

“The Dustbin of History”: Could Roe Be Next To Be Swept Away After Ramos?

The Supreme Court’s decision requiring unanimous verdicts in state criminal trials was a historic moment for constitutional law. One of the few remaining rights under the Bill of Rights left discretionary to the states was finally “incorporated” as a constitutional requirement. Associate Justice Neil Gorsuch declared that state systems allowing non-unanimous verdicts are now “relegated to the dustbin of history.”  In his concurring opinion, Brett Kavanaugh joined in sweeping away the prior 1972 ruling in Apodaca v. Oregon. It was difficult not to conclude that the two justices had another case in mind that was argued the same year that Apodaca was published: Roe v. Wade. If Roe is the next case to be “relegated to the dustbin of history,” it would likely fall (or more likely be diminished) by the same analysis laid out by the two Trump appointees – and notably followed by key liberal justices. Continue reading ““The Dustbin of History”: Could Roe Be Next To Be Swept Away After Ramos?”

“Dustbin of History”: Supreme Court Rules State Juries Must Be Unanimous In Major Constitutional Ruling

440px-Associate_Justice_Neil_Gorsuch_Official_PortraitThe Supreme Court handed down a major new ruling today that requires state juries to be unanimous to convict defendants in criminal trials.  It is a historic “incorporation” ruling that the Sixth Amendment would apply in the same way to the states as it does the federal government.  Most rights are incorporated, but the Supreme Court has long allowed this protection to be decided state-by-state. The court’s 6-3 ruling overturned its 1972 decision in Apodaca v. Oregon. Notably, the opinion was written by Justice Neil Gorsuch who continues to follow his conscience in breaking from the right of the Court — as I expect he would when I testified in favor of his confirmation.   Gorsuch declared that “Louisiana’s and Oregon’s laws are fully—and rightly—relegated to the dustbin of history.”

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State Attorneys General Demand That The Court Reconsider The Public Charge Rule In Light Of The Pandemic

Supreme CourtThe attorneys general of New York, Connecticut, and Vermont have asked the U.S. Supreme Court to reconsider the decision early this year to allow the Trump Administration to rollout its “public charge rule.”  The Court split along ideological lines to lift the nationwide injunction.  The decision was clearly influenced in part by the strong opposition of some members to lower courts binding the entire country through national injunctive orders.  However, it also reflected the view of conservative justices on the inherent authority of the President in the area.  The effort to get a reconsideration of the decision based on the pandemic is likely to be viewed by a number of justices as seeking a policy judgment.

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No, The Supreme Court Did Not Just Help Rig The Wisconsin Election

Few per curiam opinions have generated as much heat from both dissenting justices as well as the media. The decision of the Supreme Court to reverse the decision of a district court judge on extending the voting for the Wisconsin election this week has generated breathless headlines and comparisons to the Bush v. Gore decision in the 2000 elections. Such hyperbolic language aside, the decision was actually quite narrow and well-supported. Moreover, the dissent is chastising the majority for denying relief that the Wisconsin Democrats never requested from the District Court in their original preliminary injunction motion.

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Supreme Identity Politics: Biden Pledges To Only Consider Black Females For Supreme Court Pick

Below is my column in The Hill newspaper on former Vice President Joe Biden’s pledge that he will select a black women as the next nominee to the Supreme Court.

Here is the column:

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The Death of Irony: How A Judge’s Attack On Judicial Bias Backfired

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.

Here is the column:

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Chief Justice John Roberts Heading Down Collision Course With Himself

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.

Here is the column:

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Roberts Rebukes Schumer For Threatening Justices With Retaliation Over Rulings

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.

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No, Sotomayor Should Not Recuse Herself From All Cases Involving The Administration

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.

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Ginsburg Declares ERA Dead And Calls For New Campaign

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.

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Supreme Court Rules That Trump Administration Can Go Forward With Public Charge Rule Of Immigrants

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.

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How The Supreme Court Could Be Pulled Into The Trump Impeachment

Supreme CourtBelow 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.

Here is the column: Continue reading “How The Supreme Court Could Be Pulled Into The Trump Impeachment”

Res ipsa loquitur – The thing itself speaks