The conviction of former Minneapolis police officer Derek Chauvin was undermined this week after the previously anonymous Juror #52 went public with interviews to discuss his experience on the jury and support the movement to curtail police abuse. The problem was not the public disclosure of his identity (which jurors can elect to do) but what his self-identification triggered on the Internet. A picture soon emerged showing Brandon Mitchell wearing a Black Lives Matter T-shirt with a reference to the death of George Floyd. The image was raised as contradicting his answers in voir dire and raising an appellate question as to juror bias that could be used to challenge the conviction. Continue reading “Juror 52: Does Chauvin Have A New Challenge Over Juror Brandon Mitchell?”
We recently discussed the controversial commission created by President Joe Biden to discuss calls to pack the Supreme Court as well as a number of truly looney ideas for circumventing or reducing the authority of the Court’s conservative majority. Some members however decided not to wait even for a commission that is itself packed with liberal members. House Judiciary Committee Chair Jerry Nadler, D-NY, Sen. Ed Markey, D-Mass, and others will be announcing their plan to immediately add four new justices to the Court. The number is calculated purely to give liberals a 7-6 majority on the Court. It is about a subtle as a B-52 run. Continue reading “Hostile Takeover: Democrats To Introduce Bill To Pack The Supreme Court”
The United States Court of Appeals for the Sixth Circuit this week upheld an Ohio law that bans doctors from performing abortions when they know the reason a woman is seeking an abortion is that her baby has Down syndrome. It is a major win for pro-life advocates but could face an appeal to the Supreme Court.
Below is my column in The Hill on President Joe Biden’s Commission on the Supreme Court. While the composition of the makeup of the Commission is now known, the true purpose of the Commission remains in doubt. While the Commission is likely to make recommendations for “reforms,” the genesis of the Commission was to consider the court packing scheme that was widely discussed during the 2020 presidential election. Biden precisely called court packing a “bone headed” and “terrible, terrible idea.” However, he was not willing to confront extreme voices in his own party and this Commission is the result. The hope of many in Washington is that this Commission will give the Administration cover in setting aside the demands to add new members in the short term to create a liberal majority on the Court. If this largely liberal commission recommends against court packing, Biden and the Democratic leadership could shrug and say “well., we tried.” The question is whether the Commission will feel the pressure to come up with some alternative substantial recommended change. Over 20 years ago, I recommended the expansion of the Court to 17 or 19 members. However, that recommendation would occur over many years and would not give advocates the short-term majority that they are seeking. That is the difference between reforming and packing the Court. Even a gradual increase would also face considerable opposition in the Senate, particularly out of a lack of trust that a later majority would add a couple of justices and then renege on continued additions to continue to control the majority of the Court. Even former Democratic Majority Leader Harry Reid warned against term limits or seeking to expand the Supreme Court as a dangerous path for Democrats.
Here is the column:
On Friday, President Joe Biden issued an executive order forming the Presidential Commission on the Supreme Court of the United States. The order is the fulfillment of his pledge on the campaign trial to consider the expansion of the Supreme Court, a court-packing scheme advocated by some Democrats to retake control of the court from its current conservative majority. Even though I have long argued for the expansion of the Supreme Court, I opposed these calls as a raw effort to pack the Court. I have a column out this morning discussing the Commission.
Below is my column in The Hill on the news that Donald Trump will not be charged with campaign finance violations linked to payments made to Stormy Daniels. The report (and the start of the Senate trial) raise another question as to why Trump has not been interviewed, let alone charged, with the crime of incitement. Various members and legal experts have claimed that the case for prosecution is clear on its face. The crime occurred in public over a month ago, but there is no indication of a move to prosecute. Why? It is presumably not because prosecutors feel it would be too easy.
Here is the column:
With the nomination of California Attorney General Xavier Becerra for Secretary of the Department of Health and Human Services, the list of presumed frontrunners for Attorney General is narrowing. One name remains prominently at top: former Associate Attorney General Sally Yates. Yates’ appointment would be one of the most controversial for Biden and would likely lead to an intense confirmation fight over her standoff with President Donald Trump at the start of his Administration as well as her role in the Russian investigation. However, in a strange way, Yates’ controversy could be exactly what both President Trump and President-Elect Joe Biden need if they are looking a basis for a self-pardon.
This afternoon I have the pleasure of joining a distinguished panel to speak on the Supreme Court at the University of Southern California’s Gould School of Law. The event is part of the LACBA Business Law Section 2020 Virtual Institute for Corporate Counsel and will also include Michael J. Gerhardt of UNC School of Law and Pamela S. Karlan of Stanford Law School who testified with me during the Trump impeachment hearing. It will also include Beth S. Brinkmann of Covington & Burling LLP.
We have been discussing calls to pack the Supreme Court and President-Elect Joe Biden pledging to assemble a commission of experts to fundamentally change the Supreme Court after it added another conservative justice to the majority. Boston College Law Professor Kent Greenfield is already putting forward one such proposal: just replace the Supreme Court on constitutional questions. Greenfield calls for the establishment of a constitutional court that would strip the Supreme Court of the ability to rule on such question because “the Supreme Court needs a breather.” That “breath” however only became a perceived need for many academics when the conservative conservative on the Court grew to 6-3. Continue reading ““The Supreme Court Needs A Breather”: Law Professor Calls For Replacement of Supreme Court With A “Specialized Court” For Constitutional Questions”
The long-awaited argument in Trump v. New York revealed a Court that seemed eager for an off-ramp rather than a merits ruling in the census dispute. Justices seemed skeptical of the Trump Administration’s interpretation of “persons” to exclude undocumented individuals while they also expressed skepticism that the Court needed to intervene at this stage. Notably, one of those expressing skepticism over the exclusionary interpretation was Associate Justice Amy Coney Barrett. I have previously stated that I believe the Administration’s interpretation is at odds with the long-standing meaning of “persons” under the Constitution as including all individuals residing in the United States regardless of their status. Some of the justices balked at micromanaging communications between a president and a federal agency in prohibiting certain information from being transmitted. One thing however stood out in the argument: the use of the term “illegal alien” by various justices, including Justice Sonia Sotomayor. The term has been denounced in some states and various universities as a “microaggression.” Continue reading “The Census Case: Did The Court Reject Micromanagement But Embrace Microaggression?”
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”
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). It is also an opportunity that any new justice would relish: after being the lone dissenter on a similar case, Barrett could be the critical vote (and even the author) on the opinion changing the area in line with her prior position.
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.
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”
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.