Below is my column in USA Today on the growing calls for packing the Supreme Court with up to six new members as soon as the Democrats gain control of both houses of Congress and the White House. I was critical of Democratic nominee Joe Biden this week when he refused to answer a question of whether he supports this call by his running mate Kamala Harris and other Democratic leaders. Biden told reporters “It’s a legitimate question, but let me tell you why I’m not going answer…it will shift the focus.” That was an extraordinary statement since if the question was legitimate, the refusal to answer it was not. Many of us would not support a presidential candidate who supported the packing of the Court. If Biden considers this a viable option, he is not a viable candidate for many of us. This is a central issue in the presidential campaign that has been pushed by Harris and top Democrats. Yet, Biden is refusing to confirm his position. What is particularly concerning is that Biden precisely and correctly denounced court packing schemes like the one supported by this running mate. Just a year ago, he insisted “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.”
Democratic members are introducing a blatantly unconstitutional bill that would limit the tenure of U.S. Supreme Court justices to 18 years. In claiming to defend the Constitution, members like Rep. Ro Khanna (D., Cal.), Rep. Joe Kennedy III (D., Mass.), and Don Beyer (D., Va.) are offering a plan that is as illogical as it is unconstitutional. While the bill also includes a provision that I proposed decades ago for the expansion of the Court, the term limit would be dead on arrival at any court.
Last night, I was finalizing my column for USA Today when one of my editors flagged my reference to the roughly 30 election-year nominations to the Supreme Court as a possible error. The New York Times ran a story declaring that there “there have been 16 Supreme Court vacancies that occurred before Election Day.” I have previously discussed glaring misstatements of cases in major media, but this was unnerving because the New York Times was suggesting that the precedent for the current nomination was roughly half as previously thought. I decided to do another rough count and, if anything, it would seem that the 29 nomination figure is arguably too low and that there appears almost twice the number cited by the New York Times. The difference appears in part counting a calendar year rather than a year from election, but that approach causes problems in comparison given the earlier early election calendars.
I was on CBS News today with my friend Kim Wehle on the replacement of Justice Ruth Bader Ginsburg. There is a legitimate debate over whether a president should wait for the next election for such a nomination to move forward. However, I disagree with Wehle that a nomination would be unlikely given the roughly 40 days left before the election. The Senate could move this nomination in that time and, judging from some past nominations, even have time to spare without setting a record.
Below is my column in The Hill newspaper on the death of Associate Justice Ruth Bader Ginsburg. We expect the nomination of her replacement this week and what could be the most heated confirmation process in history. We may look back at Bork and Kavanaugh as examples of bipartisan tranquility by comparison. As Washington returns to its favorite blood sport, many will continue to mourn the loss of an extraordinary jurist.
Here is the column:
Three years ago, I wrote a column questioning the constitutional and practical effect of gun control reforms pushed through after the Las Vegas massacre, including limits on the capacity of magazines. The moves were being oversold in the media as reforms that would make such attacks less likely or deadly while also ignoring the constitutional standard for the review of such measures. Now, one of those reforms, California’s ban on high-capacity gun magazines, has been struck down by a panel on the United States Court of Appeals for the Ninth Circuit. Notably, the magazine laws were one of the most promising areas of gun control laws after the Court’s 2008 decisions in District of Columbia v. Heller. Indeed, while I doubted its efficacy, I thought that limits on magazines could potentially pass constitutional muster under Heller with a properly crafted and supported law.
Back in March, I wrote that Chief Justice John Roberts appeared to be on course for a collision with himself over abortion. Yesterday, he collided in a spectacular way. Due to my testimony in Congress on the Lafayette Park case, I was unable to share the opinion. Continue reading “Roberts Collides With Himself On Abortion”
In a 5-4 ruling, the Supreme Court had blocked the Trump Administration from ending the Deferred Action for Childhood Arrivals (DACA) program as an “arbitrary and capricious” change. Chief Justice John Roberts, joined by the four liberal judges, ruled that Trump’s decision violated the Administrative Procedure Act. It was another self-inflicted wound due to a poorly executed policy change in this area. The ruling is based on procedural failures, not the merits or the underlying authority.
Early on in the pandemic, I wrote about how governors can shutdown churches under the Constitution. On Friday, the Supreme Court voted 5-4 to reject an emergency appeal from a California church over the imposition of limits on the size of attendance at services. The church came close to prevailing. Chief Justice John Roberts joined his liberal colleagues in upholding what he said were limits that “appear consistent” with the First Amendment. The cost ruling is an indication of how courts are applying closer scrutiny to the treatment of churches as opposed to other institutions allowed to have greater numbers of people.
On Monday, the House Democrats filed a brief that with the Supreme Court that the House was actively pursuing new articles of impeachment against President Donald Trump including “the possible exercise of improper political influence over recent decisions made in the Roger Stone and Michael Flynn prosecutions, both of which were initiated by the special counsel.” The argument is meant to justify the continued demand for redacted grand-jury material from the now closed Special Counsel investigation into the Russian collusion investigation.
In an unanimous opinion, Justice Ruth Bader Ginsburg excoriated the United States Court of Appeals for the Ninth Circuit for “an abuse of discretion” when it brought in third parties to argue the case and ruled on that basis. That approach “drastically” changed the judicial norms of having the parties present arguments. The Ninth Circuit opinion was written by A. Wallace Tashima who ruled with Marsha S. Berzon, and Andrew D. Hurwitz. Hurwitz was brought into the case after Judge Stephen Reinhardt died. Continue reading “A “Radical Transformation”: Supreme Court Unanimously Overrules The Ninth Circuit”
The Supreme Court today unanimously threw out the convictions of Bridget Kelly, a former aide to Christie, and Bill Baroni, a former Port Authority official, for their role in “Bridgegate.” The dispute involved the controversial closing of lanes on the George Washington Bridge to create traffic problems for the mayor of Fort Lee, N.J., who had refused to endorse Christie. Notably, the Court rejected the very arguments raised by some experts against Trump and relied on some of the same analysis that I raised in my testimony in the Trump impeachment against such claims. Continue reading “Supreme Court Unanimously Throws Out Bridgegate Convictions — And Rejects Prior Legal Arguments Against Trump”
The Supreme Court’s decision requiring unanimous verdicts in state criminal trials was a historic moment for constitutional law. One of the few remaining rights under the Bill of Rights left discretionary to the states was finally “incorporated” as a constitutional requirement. Associate Justice Neil Gorsuch declared that state systems allowing non-unanimous verdicts are now “relegated to the dustbin of history.” In his concurring opinion, Brett Kavanaugh joined in sweeping away the prior 1972 ruling in Apodaca v. Oregon. It was difficult not to conclude that the two justices had another case in mind that was argued the same year that Apodaca was published: Roe v. Wade. If Roe is the next case to be “relegated to the dustbin of history,” it would likely fall (or more likely be diminished) by the same analysis laid out by the two Trump appointees – and notably followed by key liberal justices. Continue reading ““The Dustbin of History”: Could Roe Be Next To Be Swept Away After Ramos?”
The Supreme Court handed down a major new ruling today that requires state juries to be unanimous to convict defendants in criminal trials. It is a historic “incorporation” ruling that the Sixth Amendment would apply in the same way to the states as it does the federal government. Most rights are incorporated, but the Supreme Court has long allowed this protection to be decided state-by-state. The court’s 6-3 ruling overturned its 1972 decision in Apodaca v. Oregon. Notably, the opinion was written by Justice Neil Gorsuch who continues to follow his conscience in breaking from the right of the Court — as I expect he would when I testified in favor of his confirmation. Gorsuch declared that “Louisiana’s and Oregon’s laws are fully—and rightly—relegated to the dustbin of history.”
The attorneys general of New York, Connecticut, and Vermont have asked the U.S. Supreme Court to reconsider the decision early this year to allow the Trump Administration to rollout its “public charge rule.” The Court split along ideological lines to lift the nationwide injunction. The decision was clearly influenced in part by the strong opposition of some members to lower courts binding the entire country through national injunctive orders. However, it also reflected the view of conservative justices on the inherent authority of the President in the area. The effort to get a reconsideration of the decision based on the pandemic is likely to be viewed by a number of justices as seeking a policy judgment.