Category: Supreme Court

Constitutional Law, Supreme Court

Second Shot at the Second Amendment: Could Heller Be Undone by an Errant Qualifier?
Many of us are gearing up with columns previewing the Court’s October term and have highlighted the upcoming arguments over bans on AR-15s and semiautomatic weapons out of the Seventh Circuit in Chicago (Viramontes v. Cook County) and the Second Circuit in New York (Grant v. Higgins). In a recent column, Professor Rory Little suggests that these cases will strike at what he considers a glaring flaw in the Heller decision that recognized the individual right under the Second Amendment. Professor Little repeats a common claim about Heller that some of us have challenged. I wanted to briefly address that controversy again. Continue reading “Second Shot at the Second Amendment: Could Heller Be Undone by an Errant Qualifier?” →
Constitutional Law, Courts, Media, Politics, Society, Supreme Court

Fake News or Viewpoint Discrimination: Can the President Ban Disfavored Media?

The Trump Administration is rushing to prepare for a fight that few knew was coming after President Donald Trump banned Politico, CNN, and MS NOW from the White House for spreading “fake news.” I understand the President had been planning this step for over a year, but he announced it with little notice to his staff. What will follow could be one of the most consequential fights over press rights in decades… and the odds are against the President. Continue reading “Fake News or Viewpoint Discrimination: Can the President Ban Disfavored Media?” →

Columns, Constitutional Law, Politics, Supreme Court

Unpacking the Narrative: The Supreme Court Remains a Court of Consensus

Below is my column in the New York Post challenging the narrative of the Supreme Court as hopelessly ideologically divided. As the Court heads into the October Session, it remains a court of consensus on the vast majority of cases. While this false narrative is central to the push to pack the Court, the statistics belie the claims of critics.

Here is the column: Continue reading “Unpacking the Narrative: The Supreme Court Remains a Court of Consensus” →

Constitutional Law, Politics, Supreme Court

Sen. Paul Introduces Birthright Citizenship Amendment

Yesterday, I had the pleasure of speaking at the Constitution Day event at James Madison University about “Rage and the Republic.” and various constitutional issues. During the event, organized by the James Madison Center on Civic Engagement, one student asked me what I would change about the U.S. Constitution. I said that I would amend the Constitution to eliminate birthright citizenship, as have other nations who once followed this ill-considered practice. Well, Sen. Rand Paul (R., Kentucky) has wasted no time. He just reintroduced his bill to ban birthright citizenship. Continue reading “Sen. Paul Introduces Birthright Citizenship Amendment” →

Columns, Constitutional Law, Politics, Supreme Court

The Dangerous Evolution of Gavin Newsom

Below is my column in The Hill on the declaration of Gov. Gavin Newsom that he is now officially “evolving.” However, unlike more modest objectives like opposable thumbs over eons, Newsom wants to accomplish a full transformation in one election cycle to appeal to the surging far left of his party. It is a cautionary tale for Democrats who want their party to reposition toward the political center.

Here is the column:

Continue reading “The Dangerous Evolution of Gavin Newsom” →

Constitutional Law, Supreme Court

A Stunning Case in the Making? The Supreme Court Orders New York to Respond in Second Amendment Case
Congress, Constitutional Law, Courts, Politics, Supreme Court, Torts

Lock and [Re-]Loaded: Third Circuit Greenlights Major Challenge to New Jersey Gun Liability Law

Some of us have been closely following challenges to A1765, New Jersey’s gun industry liability law. In my view, the law is facially invalid and preempted under federal law, and we may now find out after the United States Court of Appeals for the Third Circuit greenlit a challenge from the National Shooting Sports Foundation (NSSF) yesterday. The court found that the NSSF has standing to bring the lawsuit, which could reach the United States Supreme Court. Continue reading “Lock and [Re-]Loaded: Third Circuit Greenlights Major Challenge to New Jersey Gun Liability Law” →

Congress, Constitutional Law, Courts, Politics, Supreme Court

Supreme Irony: Congressional Democrats Seek to Reform Institution That is More Popular Than They Are

Congressional Democrats blocked an effort to introduce a constitutional amendment to bar the Court’s expansion, with many members reiterating their demand to pack the Court to create an instant liberal majority. The Democrats insisted the Court is broken and no longer legitimate because of partisan rulings they want reversed by a packed Court. Ironically, the vote came with the release of the latest Harvard-Harris polling showing that Congress itself is still the least respected institution, while the Supreme Court holds higher approval than either the White House or Congress. Continue reading “Supreme Irony: Congressional Democrats Seek to Reform Institution That is More Popular Than They Are” →

Constitutional Law, Politics, Supreme Court, Torts

Eye of the Beholder: Aesthetic Injury and the White House Ballroom

The Administration won a major victory before the Supreme Court this week, securing a 5-4 decision allowing the resumption of construction of the new White House ballroom. Notably, Chief Justice John Roberts wrote a dissent with his three liberal colleagues to oppose the move. The case turns on the standing of challengers to bring the case. However, as a torts professor, what intrigued me was what the case says about aesthetic injuries. Continue reading “Eye of the Beholder: Aesthetic Injury and the White House Ballroom” →

Congress, Constitutional Law, Courts, Politics, Supreme Court

Clyburn Calls for Packing the Court with “Baker’s Dozen” to Flip Cases

On NBC’s “Meet the Press,” Rep. James Clyburn (D-SC) added his voice to expand the Supreme Court to a “baker’s dozen,” or thirteen members to allow Democrats to add justices who agree with him and Democratic members on how the law must be interpreted.  In the meantime, as discussed earlier, court packing is being pushed as the new litmus test for any Democratic candidates. Clyburn’s “baker’s dozen” is a telling description of an effort to bake in partisan views on a Court expanded to create an instant liberal majority. In defending this hostile takeover of the Court, Clyburn bizarrely insisted that the failure to do so might lead to a return to antebellum conditions when blacks were being given fewer rights than whites. Continue reading “Clyburn Calls for Packing the Court with “Baker’s Dozen” to Flip Cases” →

Bizarre, Constitutional Law, Courts, Politics, Supreme Court

The Long Shadow of Judge Indira Talwani

Below is my column in The Hill on the latest controversy from the chambers of Judge Indira Talwani. While the court could be upheld in halting the executive order on mail-in balloting in this case, Talwani is one of a number of jurists who have been habitual blockers of executive reforms and policies. Talwani has been criticized in the past as something of a one-stop option for forum-shoppers. Her record reaffirms the rationale for justices in using the emergency docket, or so-called “shadow docket,” to deter gaming the system.

Here is the column: Continue reading “The Long Shadow of Judge Indira Talwani” →

Academia, Courts, Politics, Supreme Court, Torts

Pack or Sack: Penn Professor Demands Litmus Test for Politicians to Commit to Packing the Supreme Cout

University of Pennsylvania Professor Michael Mann is the Vice Provost for Climate Science, Policy, and Action and has pushed candidates to commit to major environmental reforms. Notably, he seemed to pivot in an interview with Peter Dominick on a podcast last week, calling for all Democratic candidates to face a litmus test on committing to pack the Supreme Court: promise to pack or get the sack. It is only the latest example of how the hostile takeover of the Court is now the priority for many Democrats in removing a barrier to a radical agenda.

Continue reading “Pack or Sack: Penn Professor Demands Litmus Test for Politicians to Commit to Packing the Supreme Cout” →

Constitutional Law, Politics, Religion, Society, Supreme Court

Browbeaten: Woman Forced Out of Virginia Salon Over Her Support for Israel

There is a disturbing controversy in Northern Virginia where Jessica Walton alleges that she went to Karimi Salon in Alexandria to get her eyebrows trimmed, only to be pushed out of the salon after the owner, Fatana Karimi, learned that Walton is Israeli. The incident raises a prior issue discussed on this blog: the right of business owners to refuse service based on political or religious beliefs as a matter of free speech. Walton posted a full account and a video on social media. Karimi, however, may not have a constitutional claim to defend against a discrimination complaint. Continue reading “Browbeaten: Woman Forced Out of Virginia Salon Over Her Support for Israel” →

Columns, Constitutional Law, Courts, Politics, Supreme Court

Sam Alito is Locked and Loaded . . . and He is Not Going Anywhere

Below is my column in The Hill on the announcement from Justice Samuel Alito that he is sticking around. Even a cursory review of the docket explains why Alito is not eager to depart despite the wishful thinking of folks at National Public Radio.

Here is the column: Continue reading “Sam Alito is Locked and Loaded . . . and He is Not Going Anywhere” →

Courts, Politics, Supreme Court

Harris Renews Calls to Pack the Court Despite Poll Showing Most Americans Agree with Court’s Decisions

Kamala Harris is again promising the radical wing of her party that she will pack the Supreme Court. Pete Buttigieg and others have done the same to pander to the extreme left. These calls are increasing among Democratic leaders despite a recent poll showing that the Court remains the more popular institution vis-à-vis Congress, and that the majority of Americans agree with its major decisions. Continue reading “Harris Renews Calls to Pack the Court Despite Poll Showing Most Americans Agree with Court’s Decisions” →

Res ipsa loquitur – The thing itself speaks