Category: Supreme Court

Our Crisis of Faith on Constitution Day

Not long after the ratification of our Constitution, the great Justice Joseph Story marveled “How easily men satisfy themselves that the Constitution is exactly what they wish it to be.” The Constitution is designed to be a type of waltz with a three rather than six-step pattern in our tripartite system of government. Many today however treat it more like an interpretative dance, an invitation for expressive individual moves.  Indeed, in the last few months, President Joe Biden often seems to be dancing alone. The improvisational element to constitutional interpretation reflects more than mere political opportunism. It reflects a crisis of faith on the Constitution Day.

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The New Federalist Party: Biden Move Forward With the Greatest Federalization Push Since Adams

President Joe Biden has long pledged to “build back better” but in the last few months it has become clear that his transformative plans go beyond mere infrastructure and extend to our very structure of government.

From abortions to elections to rents, Biden is seeking to federalize huge areas to displace state law. Not since John Adams and his Federalist Party has the country faced such a fundamental challenge to our system of federalism. Continue reading “The New Federalist Party: Biden Move Forward With the Greatest Federalization Push Since Adams”

“What Goes Around Comes Around”: Justice Breyer Again Warns Against Court Packing

Justice Stephen Breyer has been a target of liberal groups for months as billboards and commentators call for his immediate resignation. It has backfired with Breyer pushing back on such pressure and reaffirming that he will stay on the Court so long as he is capable of carrying out his duties. Breyer has also opposed the same groups and a number of leading Democrats pushing for court packing.  Breyer just reaffirmed his position (and that of other justices like the late Ruth Bader Ginsburg) in opposition to court packing.

 

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“The Light is Better Here”: Garland Pledges To Protect Abortion Clinics From “Attack”

The Appeal of Chaos: How Politicians and Pundits are Misconstruing The Supreme Court’s Order on the Texas Abortion Law

Magnum Chaos

Below is my column in The Hill on reaction to the refusal of the Supreme Court to enjoin the Texas abortion law. The order of the Court expressly did not reach the merits and certainly did not, as claimed, overturn Roe v. Wade. The Texas law is not even the greatest threat to Roe. Not only is there a pending case on the docket of the Court that has long been viewed as a serious threat to Roe, but the White House and the House of Representatives are threatening immediate actions that could also create new challenges for pro-choice litigants.

Here is the column: Continue reading “The Appeal of Chaos: How Politicians and Pundits are Misconstruing The Supreme Court’s Order on the Texas Abortion Law”

Supreme Irony: Polls Show Drop In Approval of the High Court Despite Unanimous and Non-Ideological Decisions

The Kavanaugh Conspiracy: Demands To Reopen Investigation Ignore Both Key Facts and Law

Below is my column in The Hill newspaper on the renewed calls for the investigation of Justice Brett Kavanaugh.  The often over-heated coverage however omits key factual and legal context for a new report.

Here is the column:

Continue reading “The Kavanaugh Conspiracy: Demands To Reopen Investigation Ignore Both Key Facts and Law”

Justice or Just Deserts? Trump, Cosby and Georgia Cases Show Rising Cost of Political Litigation

Below is my column in the Hill on a series of cases that appear propelled by political rather than legal considerations.  The costs to the legal system, the public, or victims in such cases are often overlooked but they are considerable.

Here is the column:

Continue reading “Justice or Just Deserts? Trump, Cosby and Georgia Cases Show Rising Cost of Political Litigation”

Supreme Court Strikes Down California’s Donor Disclosure Law

In the final decision of the Supreme Court before its summer break, Chief Justice John Roberts delivered a major ruling striking down the California law requiring the disclosure of donors for charities. The law attacked so-called “dark money” but the Court ruled that the state was curtailing free speech in a 6-3 decision. Continue reading “Supreme Court Strikes Down California’s Donor Disclosure Law”

“A Half-in, Half-Out Regime”: Thomas Slams the Continued Criminalization of Marijuana in Little Noticed Opinion

As we wait for the final cases from the Supreme Court this week, Monday was confined to orders of the Court, including the granting and denial of review of cases. One of the cases that was declined was Standing Akimbo, LLC v. United States. That is hardly news on a Court that rejects most petitions for a writ of certiorari. However, this denial was accompanied by an opinion from Justice Clarence Thomas who slammed the current federal policy on marijuana as “a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.”  He is, of course, correct. The current position of marijuana criminalization is incomprehensible and conflicted. However, the criticism from one of the Court’s most conservative members was particularly notable. The timing is also notable. This week, the Mexican Supreme Court decriminalized recreational use of marijuana.

Continue reading ““A Half-in, Half-Out Regime”: Thomas Slams the Continued Criminalization of Marijuana in Little Noticed Opinion”

The Right to Exclude: The Supreme Court Delivers Haymaker Reversal of the Ninth Circuit In Major Takings Ruling

While not one of the matinee cases often discussed in the press, the Supreme Court handed down a major ruling this week on takings under the Fifth Amendment. In a 6-3 decision that broke along ideological lines (a departure from a long line of unanimous or non-ideological rulings), the court ruled in Cedar Point Nursery v. Hassid that a California law was a takings under the Constitution. As I mentioned yesterday, I expect to be teaching this case in the fall and it represents a very significant new precedent in the area. Continue reading “The Right to Exclude: The Supreme Court Delivers Haymaker Reversal of the Ninth Circuit In Major Takings Ruling”

Student Athletes or Independent Contractors? The Supreme Court Moves the Goalposts on College Sports

Below is my column in The Hill on the recent ruling on college athletes by the Supreme Court.  The decision could prove to be the critical “crossing the Rubicon” moment for college sports and force schools to address long unsettled questions regarding big sports programs.

Here is the column: Continue reading “Student Athletes or Independent Contractors? The Supreme Court Moves the Goalposts on College Sports”

Supreme Court Rules 8-1 for Cheerleader in Mahonoy Case In Major Victory for Free Speech

For those seeking to portray the Supreme Court as, to use President Joe Biden’s words, “out of whack,” the Court itself continued to disappoint critics this week with another major and nearly unanimous decision in the long-awaited decision in Mahonoy v. B.L. While many of us in the free speech community hoped for a bright-line decision protecting student speech, the decision sharply rebuts the sweeping claims of schools (from high schools to universities) of authority to monitor and punish off-campus speech.  What is striking about the language is that the Court secures near unanimous decision by limiting the reach of the decision. Continue reading “Supreme Court Rules 8-1 for Cheerleader in Mahonoy Case In Major Victory for Free Speech”

Biden’s Bad Run: Is The Biden Administration Doing Worse Than The Trump Administration In The Courts?

Below is my column in the Hill on the growing number of losses by the Biden Administration in courts around the country, including a particularly embarrassing loss before the United States Supreme Court. What is notable is that such losses in the early days of the Trump Administration led to coverage declaring a war on the “rule of law” and even indications of authoritarianism. The Biden losses have received little coverage despite what could be a worst record in the early days of his Administration. The fact is that such adverse decisions are not uncommon as Administrations try to fast track changes. However, the Biden Administration has actually had some very serious losses, including some which are being appealed. Yet, many previously outspoken legal experts have either blamed conservative judges  or simply ignored the losses all together. It is a continuation of an interesting pattern where Democrats are adopting the very rationales that they once denounced.

Here is the column: Continue reading “Biden’s Bad Run: Is The Biden Administration Doing Worse Than The Trump Administration In The Courts?”

Will The Senate Democrats Now Apologize To Justice Barrett?

During the confirmation hearings of now Justice Amy Coney Barrett, I repeatedly objected to the clearly false narrative that she was nominated to vote to strike down the Affordable Care Act in the pending case of California v. Texas. The case was highly unlikely to result in such a decision and the Democrats knew it. The case was  focused on a highly technical and limited issues of severability. It would either be resolved on that limited basis or dismissed for standing. While Barrett might view the ACA as unconstitutional (as many do), I noted that she was more likely to dismiss the challenge or sever the individual mandate than to strike down the Act in the case. That is what she did in joined the 7-2 decision to dismiss the case. Continue reading “Will The Senate Democrats Now Apologize To Justice Barrett?”