Category: Supreme Court

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

Why Has Trump Not Been Charged With Criminal Incitement?

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:

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Constitutional Law, Criminal law, Lawyering, Media, Politics, Society, Supreme Court

Is Biden About To Help Make The Case For A Self-Pardon?

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.

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Academia, Constitutional Law, Hikes, Lawyering, Supreme Court

Turley To Speak at USC Law School on the Supreme Court

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.

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Lawyering, Politics, Society, Supreme Court

“The Supreme Court Needs A Breather”: Law Professor Calls For Replacement of Supreme Court With A “Specialized Court” For Constitutional Questions

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” →

Academia, Courts, Politics, Supreme Court

The Census Case: Did The Court Reject Micromanagement But Embrace Microaggression?

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?” →

Constitutional Law, Courts, Politics, Religion, 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” →

Constitutional Law, Courts, Politics, Supreme Court

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). 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.

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Academia, Bizarre, Media, Politics, Supreme Court

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.

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Courts, Lawyering, Media, Supreme Court

“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” →

Congress, Constitutional Law, Supreme Court

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.

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Media, Politics, Supreme Court

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?

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Bizarre, Media, Politics, Supreme Court

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.

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Constitutional Law, Politics, Supreme Court

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.

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Columns, Constitutional Law, Media, Politics, Society, Supreme Court

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:

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Constitutional Law, Courts, Politics, Supreme Court

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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Res ipsa loquitur – The thing itself speaks