Category: Supreme Court

The Supreme Court Bars Cuomo’s Pandemic Limits On Houses of Worship

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”

Barrett Reloaded? A New Third Circuit Decision Could Prove The Perfect Base For A Second Amendment Blowout

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).

Continue reading “Barrett Reloaded? A New Third Circuit Decision Could Prove The Perfect Base For A Second Amendment Blowout”

The Notorious SAA: Democrats Denounce Alito After Years Of Praising Ginsburg For Controversial Comments

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.

Continue reading “The Notorious SAA: Democrats Denounce Alito After Years Of Praising Ginsburg For Controversial Comments”

“Unfashionable Views”: Justice Alito Speaks Out Against Pandemic Restrictions, Contraception Laws, and Other Controversies

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”

After Taking The Bait, The Chief Justice Prepares To Switch On The ACA

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.

Continue reading “After Taking The Bait, The Chief Justice Prepares To Switch On The ACA”

A Conspiracy Collapses In The Court: Justices Appear To Confirm A Majority In Favor Of Preserving The ACA

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?

Continue reading “A Conspiracy Collapses In The Court: Justices Appear To Confirm A Majority In Favor Of Preserving The ACA”

Injudicious: Pelosi Calls Barrett “Illegitimate” As MSNBC’s Joy Reid Calls Thomas “Uncle Clarence”

The sobering election results do not seem to have altered the heated rhetoric from Democratic leaders or media figures. Speaker Nancy Pelosi, who oversaw another loss of seats in the House, lashed out at Justice Amy Coney Barrett as “illegitimate.”  MSNBC’s Joy Reid once again triggered outrage with a reference to Justice Clarence Thomas as “Uncle Clarence” — a clear reference to the racial slur of being an “Uncle Tom.”  There was no outrage in the media which has previously criticized President Trump for attacks on jurists.

Continue reading “Injudicious: Pelosi Calls Barrett “Illegitimate” As MSNBC’s Joy Reid Calls Thomas “Uncle Clarence””

The Empire Strikes Back: Do Cuomo’s Covid-19 Guidelines Take The State Moniker Literally?

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.

Continue reading “The Empire Strikes Back: Do Cuomo’s Covid-19 Guidelines Take The State Moniker Literally?”

Democrats Threaten Retaliatory Actions To Add Or Remove Justices On A “Court Out Of Whack”

Below is my column in The Hill on the call for Justice Amy Coney Barrett to recuse herself or be impeached. The call for recusal is indicative of demands and threats that are becoming more unhinged by the day.  Whether it is adding or impeaching justices, the Democrats are yielding to the same 30 percent of irate and increasingly irrational voters in their base.  What is concerning is the utter lack of responsible voices from the party to counter this retaliatory impulse or to defend the institution of the Court. Instead, former Vice President Joe Biden’s declaration that the Court is “out of whack” now means that many Democrats are out to whack either the Court or its members.

Here is the column:

Continue reading “Democrats Threaten Retaliatory Actions To Add Or Remove Justices On A “Court Out Of Whack””

Ornstein: Impeach Amy Coney Barrett

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.

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Biden’s Parade of Horribles: A Review Of The “Alternatives” For The New Biden Commission On Changing The Supreme Court

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:

Continue reading “Biden’s Parade of Horribles: A Review Of The “Alternatives” For The New Biden Commission On Changing The Supreme Court”

The Barrett Boycott: Democrats Struggle To Get An Empty Sack To Stand Up

I recently wrote about how the Barrett confirmation hearing is proof that Benjamin Franklin was right when he wrote that “it is hard for an empty sack to stand upright.” Now that analogy is becoming reality as Democrats plan to leave actual empty seats in today’s hearing to vote on the nomination. It is all an effort to convince Democrats voters that the senators are really angry over the nomination and fighting like the dickens to stop it. It is, of course, pure theater with no real impact on the nomination but voters seem to demand little more from politicians today than visceral distractions.

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A Tale of Two Amys And One Sorority: Kappa Delta Profusely Apologizes For Congratulating Judge Amy Coney Barrett

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.

Continue reading “A Tale of Two Amys And One Sorority: Kappa Delta Profusely Apologizes For Congratulating Judge Amy Coney Barrett”

Barrett Unmodified: Moments of Clarity Emerge From The Confirmation of Judge Amy Coney Barrett

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.

Here is the column: Continue reading “Barrett Unmodified: Moments of Clarity Emerge From The Confirmation of Judge Amy Coney Barrett”

Franklin’s Rule: How The Barrett Hearing Left The Democrats Holding An Empty Sack

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.

Here is the column: Continue reading “Franklin’s Rule: How The Barrett Hearing Left The Democrats Holding An Empty Sack”

Res ipsa loquitur – The thing itself speaks