Category: Supreme Court

Constitutional Law, Courts, Supreme Court

Supreme Court Lifts Injunctions On Trump Asylum Policy In Reversal Of Lower Courts

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.

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Academics, Supreme Court

GW Holds Annual Supreme Court Review

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.

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Courts, Media, Politics, Supreme Court, Torts

HuffPost and Senior Reporter Sued Over Kavanaugh Story

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.

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Politics, Supreme Court

Supreme Court Rules In Favor Of Trump On Funds For Border Wall

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.

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Columns, Courts, Lawyering, Politics, Society, Supreme Court

The Life and Legacy of John Paul Stevens

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.

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Columns, Constitutional Law, Courts, Supreme Court

Farewell To John Paul Stevens

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.

Here is the column:

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Columns, Constitutional Law, Courts, Criminal law, Media, Politics, Supreme Court

Washington Owes Neil Gorsuch An Apology

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.

Here is the column:

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Constitutional Law, Criminal law, Supreme Court

Supreme Court: No Constitutional Guarantee Of “Painless Death” In Executions

In a major 5-4 ruling on Monday, the United States Supreme Court ruled Monday that the Eighth Amendment does not guarantee a “painless death” in capital punishment. The opinion, written by Justice Neil Gorsuch, returned to the origins of the amendment and concluded that Russell Bucklew’s rare medical condition raising the danger of hemorrhage and choking does not constitute a constitutional barrier to execution. The opinion is Bucklew v. Precythe. 

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Constitutional Law, Free Speech, Media, Politics, Supreme Court, Torts

It’s A Wonderful Libel? Trump Suggests Legal Action Against SNL For Latest Skit

I have previously criticized President Donald Trump for his calls for greater liability of the media for its coverage of the controversies surrounding his Administration.   This weekend, Trump was again suggesting the need for legal review as he was excoriated by Saturday Night Live in a skit based on the classic Christmas movie “It’s a Wonderful Life.”  Fortunately, the courts have maintained core free speech and free press protections from such assaults, particularly in the realm of comedy and parody.  

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Columns, Courts, Politics, Supreme Court

Roberts’ Rebuke of Trump Rings Hollow, Given Justices’ Conduct

Below is my column in the Hill newspaper on the recent public statement issued by Chief Justice John Roberts.  While I am entirely sympathetic with the statement (which is also true) about the unfairness in referring to “Obama judges” ruling against the Trump Administration, the public rebuke only highlighted the glaring disconnect in Roberts’ defense of apolitical courts and his deafening silence over the conduct on his own Court.

Here is the column: Continue reading “Roberts’ Rebuke of Trump Rings Hollow, Given Justices’ Conduct” →

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

Turley To Speak On Thursday At National Press Club On Presidential Removal Under The 25th Amendment

pj_site_2I have the pleasure of speaking at the National Press Club on Thursday about the use of the 25th Amendment to remove an American President.  In light of my debate on Monday in Dallas on the standard of impeachment with CNN’s Jeff Toobin, there certainly does seem a theme, or at least a focus, in these events after the midterm elections.  Organized as a a National Press Club Headliners event featured an impressive array of panelists.  The event is entitled “Presidential Jeopardy: Impeachment, Indictment and the 25th Amendment” and will be held on Thursday, November 15, 2018, 10:00-11:00 a.m. at the Bloomberg Room of The National Press Club, 529 14th Street, NW, 13th Floor Continue reading “Turley To Speak On Thursday At National Press Club On Presidential Removal Under The 25th Amendment” →

Congress, Constitutional Law, Lawyering, Politics, Society, Supreme Court

Is The Whitaker Appointment (and the Federal Vacancies Reform Act) Constitutional?

Yesterday, I addressed arguments that the appointment of Matt Whitaker as Acting Attorney General violates federal law.  The arguments based on the Federal Vacancies Reform Act, in my view, are unpersuasive. As I noted, however, there remains a different and more fundamental question of whether the Act itself is unconstitutional by allowing an official without Senate confirmation to assume, even temporarily, the office of a “principal officer.”  If standing can be found to challenge the Act on that basis, the constitutional  arguments are compelling.  The constitutional question could be difficult to litigate if a nomination is made in January.  However, these constitutional concerns again raise the logic of firing Jeff Sessions immediately after the election as opposed to having him serve until the confirmation of his successor. Nevertheless, this is an issue that is somewhat untested in the courts and challengers would need to establish standing as well as raise a “ripe” issue to argue that Whitaker is lawful under the Act but the Act is unconstitutional under Article II.

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Columns, Constitutional Law, International, Supreme Court

After 150 Years, Courts Should Clearly and Finally Define The Question Of Birthright Citizenship

As we have discussed over the last couple days, President Donald Trump’s pledge to end birthright citizenship by an executive order has caused a firestorm.  Where President Donald Trump is wrong is to claim the ability to end birthright citizenship for undocumented individuals through an executive order.  The column below in USA Today explains that Trump would lose under two out of three interpretations of the 14th Amendment.  Even if he prevailed on the one possible interpretation, I remain opposed (as I was under President Barack Obama) to unilaterally ordered such major changes through executive orders.   Putting aside the means, I have been surprised by the many statements that the meaning of the 14th Amendment as it relates to illegal or undocumented is absolutely unclear and unassailable.  In fact, while birthright citizenship is unassailable, the scope of the amendment has long been questioned including both Democratic and Republican members long proposing legislative limits (including former Sen. Harry Reid).  An argument can be made for a more limited meaning, even though the plain meaning of the Amendment (and the interpretation that I would tend to favor) would militate toward the broader meaning.  Regardless, a clear and final ruling on the 14th Amendment should be welcomed — confirming whether this is a matter for legislative reform or constitutional amendment.  Trump should drop the executive order approach so the focus of any judicial review is on the meaning of the 14th amendment and not the means used by the President.

Here is the column: Continue reading “After 150 Years, Courts Should Clearly and Finally Define The Question Of Birthright Citizenship” →

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

“Horror Has A Face”: Primordial Politics and the Aftermath of the Kavanaugh Confirmation

Below is my column in The Hill newspaper on the aftermath of the Kavanaugh confirmation. It is not that there is no winner and loser as much as both Dr. Christine Blasey Ford and Judge Brett Kavanaugh are both winners and losers.

It will take time to decide which party will benefit, but there is clearly Brett bump for Republicans going into the midterms.  Yet, the confirmation will also continue to resonate Democratic voters.

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