Category: Supreme Court

Abortion Absolutism: How Some Leaders Are Adopting Extreme Interpretations of the Right to Abortion

Below is my column in USA Today on the strikingly absolutist language being used by Democratic leaders in defining the right to abortion after the Supreme Court’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization. Yet, when pressed, these same politicians have been declining to address the implications of leaving the decision entirely to the woman at all stages of a pregnancy. Addressing the scope of this right is key to defining and supporting this right in constitutional law. Many Americans are open to protecting the right to choose, particularly in the first trimester. However, many politicians are pushing an unlimited view of the right that raises both constitutional and political questions — an approach that far exceeds what the current Roe case law supports. Conversely, Republicans are dealing with their own extreme responses to the pending decision in both the Senate and the states.

Here is the column:

Continue reading “Abortion Absolutism: How Some Leaders Are Adopting Extreme Interpretations of the Right to Abortion”

The Post-Roe World: A Reality Check on the Implications of the Leaked Supreme Court Opinion

The Map of Hell painting by Botticelli

Below is my column in the Hill on claims being made about the post-Roe world and the sweeping away of such rights as interracial marriage and the use of contraceptives. The “parade of horribles” seems to get longer by the day but it may actually be undermining the good-faith arguments made by pro-abortion advocates.

Here is the column: Continue reading “The Post-Roe World: A Reality Check on the Implications of the Leaked Supreme Court Opinion”

Clarence Thomas: “When Someone Uses Stare Decisis that Means They’re Out of Arguments”

Associate Justice Clarence Thomas made an interesting comment this weekend about the hold of precedent on the Court. After denouncing the recent leak of the draft opinion that would overturn Roe v. Wade as “an infidelity,” Thomas dismissed the reliance on the principle of stare decisis, or the respect for precedent. That was one of the central arguments in favor of preserving Roe. Thomas, however, surprised many by dismissing the principle as the last line of defense for those without an argument on the merits. Continue reading “Clarence Thomas: “When Someone Uses Stare Decisis that Means They’re Out of Arguments””

Protesting at Justice’s Homes Should be a Subject of Condemnation, not Prosecution

Below is my column in the Hill on the call for the use of a federal law to arrest protesters outside of the homes of justices. The crushing irony is that many of these critics have spent years calling for the denial or curtailment of the free speech of others. Yet, these justices being targeted in their homes would likely narrowly construe or bar the use of this law.

Here is the column:

Continue reading “Protesting at Justice’s Homes Should be a Subject of Condemnation, not Prosecution”

“When The Mob is Right”: Georgetown Law Professor Josh Chafetz Supports “Aggressive” Protests at the Homes of Justices

Georgetown Law Professor Josh Chafetz is under fire this week after going to Twitter to defend “aggressive” protests at the homes of Supreme Court justices. Chafetz explained that such mob action should be permissible when “the mob is right.”  For many who have watched the rise of threats and intolerance on our campuses, Chafetz’s comments capture the culture of many on the left. While many were taken aback by a professor seemingly supporting mob action, it is the same “by any means necessary” justification that has been used to justify everything from packing to sacking to leaking on the Court. Continue reading ““When The Mob is Right”: Georgetown Law Professor Josh Chafetz Supports “Aggressive” Protests at the Homes of Justices”

“The Only One That Makes Sense”: NPR’s Totenberg Claims The “Leading Theory” is that the Leaker is a Conservative Clerk

Recently, National Public Radio’s Legal Affairs Correspondent Nina Totenberg was widely criticized for a false story about Justice Neil Gorsuch allegedly refusing to wear a mask during oral arguments despite a threat to the health of his colleague Justice Sonia Sotomayor. She also suggested that Sotomayor had to watch the oral arguments virtually due to his conduct. Gorsuch and Sotomayor issued a joint statement that called Totenberg’s story “false.” Now, Totenberg has made another bombshell report that “the leading theory” is that it was a conservative law clerk who leaked the opinion. While most of us have discussed this as one of the possible scenarios, Totenberg reports that it is now the “leading theory” in the investigation. Totenberg’s reporting, however, did not suggest that she has any factual basis or evidence to make that claim. She simply says that it is “the only one that makes sense.” It may be the only “sensible” choice for some, but it is hardly the “most likely” theory based on the available evidence.

Continue reading ““The Only One That Makes Sense”: NPR’s Totenberg Claims The “Leading Theory” is that the Leaker is a Conservative Clerk”

No, Justices Did Not Commit Perjury in Their Confirmation Hearings When Asked About Roe

The response to the leaked draft opinion overturning Roe v. Wade has unleashed a torrent of outrage on the left. While many are calling for marches and sweeping new legislation, some are focused on calling out the justices in the majority for alleged “perjury” or “lying” in their confirmation hearings, particularly Justices Samuel Alito, Brett Kavanaugh, and Neil Gorsuch. In reality, they did not lie in testimony in referencing Roe as established precedent.  The suggestion of perjury is utter nonsense. Continue reading “No, Justices Did Not Commit Perjury in Their Confirmation Hearings When Asked About Roe”

Leaked Draft Opinion Rocks the Court and Washington

The leaking of a draft opinion in Dobbs v. Jackson Women’s Health Organization has rocked the Court and Washington. The 98-page draft opinion is dated Feb. 10, 2022 and authored by Associate Justice Samuel Alito. I have two columns (in USA Today and The Hill) today on the opinion and the disgraceful leak from within the Court. Continue reading “Leaked Draft Opinion Rocks the Court and Washington”

Supreme Court Declines Emergency Relief in Thomas Jefferson High School Case

I have been writing (here and here and here) on the controversy over the decision of the Fairfax School Board to change the admissions requirements for Thomas Jefferson High School for Science and Technology to achieve diversity goals. Now, the United States Supreme Court has denied a request for emergency intervention in the case. However, the decision is not the end of the case. The Court may still review the admissions changes and three justices are already signaling that they would like to do so.

Continue reading “Supreme Court Declines Emergency Relief in Thomas Jefferson High School Case”

Showdown at TJ: How a Virginia High School Became The Latest Battleground Over Racial Discrimination

Below is my column in the Hill on the litigation over the new admissions policy at the elite Thomas Jefferson High School in Fairfax, Virginia. The school board ended the use of an admissions test in favor of a “holistic approach” to achieve greater diversity at the school. Notably, this week, the board defended its policy before the Supreme Court by insisting that it was not “race balancing” and that the new policy is entirely “race neutral.” However, the board replaced a race-blind, merit-based system for the express purpose of achieving greater diversity. Indeed, one board member declared “in looking at what has happened to George Floyd . . . we must recognize the unacceptable numbers of such things as the unacceptable numbers of African Americans that have been accepted to TJ.”

The Virginia Attorney General (and various other states) have filed to challenge those assertions in a potentially important case that would allow the Court to consider allegedly discriminatory admissions practices and polices not just on the college but the high school levels.

Here is the column:

Continue reading “Showdown at TJ: How a Virginia High School Became The Latest Battleground Over Racial Discrimination”

E Pluribus Unum: The Supreme Court Issues Two Major Rulings With Only One Dissenting Vote

We have previously discussed the disconnect between the rhetoric for court packing and the reality of the court itself. As senators like Elizabeth Warren have called to pack the Court with a liberal majority and others have described it as hopelessly and ideologically divided, the Court itself continues to crank out unanimous or nearly unanimous decisions. This week saw two major cases touching on free exercise and free speech with only one dissenting vote.  While justices have publicly condemned the Democratic court packing efforts, the court seems to be again speaking through its opinions. The cases are Ramirez v. Collier and  Houston Community College System v. David Buren Wilson.

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Is it Okay Now to Say There is a Thin Record on Jackson’s Judicial Philosophy?

With the completion of her two days of confirmation testimony, one fact is now clear: Judge Ketanji Brown Jackson insists that she has no judicial philosophy other than a judicial methodology that is essentially identical to her oath of office. Putting aside the legal and linguistic problems with that position, most of the media and legal experts have simply shrugged and moved on. That is curious because just a week ago, many of these same figures went ballistic when I noted that we have little evidence of a judicial philosophy in past decisions by Judge Jackson and it would be one of the key issues in her confirmation hearings. Continue reading “Is it Okay Now to Say There is a Thin Record on Jackson’s Judicial Philosophy?”

“We Have Never Had This Moment Before”: The Jackson Confirmation Shows Striking Differences From Prior Confirmations

Below is my column in USA Today on the confirmation hearings for Judge Ketanji Brown Jackson. For the most part, the hearings remained respectful and civil. I criticized some of the questioning from Republican senators on relevance or tone, but the difference with the prior three nominations was striking in a number of respects. Judge Jackson faced tough questioning on her prior decisions, but there were no giant pictures of alleged future victims or attacks on her religion or family that we saw two years ago. Indeed, as Sen. Cory Booker (D., N.J.), stated “This is not a normal day for America. We have never had this moment before.”

Here is the column: Continue reading ““We Have Never Had This Moment Before”: The Jackson Confirmation Shows Striking Differences From Prior Confirmations”

Dial H for Homicide? MSNBC Commentator Accuses Sen. Hawley of Trying To Murder Judge Jackson

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In the movie “Dial M for Murder,” the character Mark Halliday explained how he writes about murders: “I usually put myself in the criminal’s shoes and then I keep asking myself, uh, what do I do next?” He admitted, however, that “I’m afraid my murders would be something like my bridge: I’d make some stupid mistake and never realize it until I found everybody was looking at me.”

That appears to be the fate of MSNBC commentator and the Nation’s Justice Correspondent Elie Mystal, who recently accused Sen. Josh Hawley of trying to kill Supreme Court nominee Judge Ketanji Brown Jackson. His weapon: a question about her prior legal positions.

Continue reading “Dial H for Homicide? MSNBC Commentator Accuses Sen. Hawley of Trying To Murder Judge Jackson”

Why Judge Jackson Needs to Recuse Herself in the Harvard Case: A Response to Noah Feldman et al.

In an earlier column, I wrote about what I saw as an insurmountable conflict of interest for Judge Ketanji Brown Jackson if she is confirmed to the Supreme Court. One of the most important cases on the Court’s calendar is a racial discrimination case involving Harvard admissions policies. I was surprised, therefore, to read that Harvard Law Professor Noah Feldman and others believe that Jackson has strong arguments against any recusal in the case. I wanted to address those arguments in greater detail.

Continue reading “Why Judge Jackson Needs to Recuse Herself in the Harvard Case: A Response to Noah Feldman et al.”