We have been discussing political figures like Rep. Alexandria Ocasio-Cortez, D-N.Y. questioning the need for a Supreme Court or media figures calling for the Supreme Court to be abolished because it is not ruling the way that they demand. Such extremist views have always found a place in public discourse, but what is alarming is the degree to which legal academics have joined in this reckless rhetoric. Law professors like Berkeley Dean Erwin Chemerinksy have called the justices “partisan hacks” while others have supported targeting the individual justices at their home. Georgetown Law Professor Josh Chafetz declared that “when the mob is right, some (but not all!) more aggressive tactics are justified.” Now the dean and chancellor of University of California Hastings College of the Law David Faigman is questioning the legitimacy of the Court after the ruling in Dobbs v. Jackson Women’s Health Organization. Continue reading “Hastings Chancellor and Dean Questions the Legitimacy of the Supreme Court After Dobbs”
Below is my column in USA Today on the reversal of Roe v. Wade. When Dobbs was accepts, I wrote that for thirty years as a television and print legal analyst I have annually downplayed claims of commentators that a given case before the Court was a true threat to Roe. However, with Dobbs, I saw a true existential threat to the decision for the first time. It has now played out as expected with a historic 6-3 ruling to overturn the case.
Yet, some coverage has clearly misrepresented the opinion and falsely claimed that it makes abortion illegal in the United States. Others falsely claim that the justices wrote an opinion opposing abortion. The decision focuses on who must decide this question, not what should be decided. The issue of abortion will now return to the states where abortion is expected to remain legal for most women in the country. Roughly 13 states, however, are moving to end abortion and the decision obviously represents a major change in the rejection of a federal constitutional right to abortion services.
Here is the column:
In the aftermath of the historic ruling in Dobbs v. Jackson Women’s Health Organization, politicians and pundits have denounced the Supreme Court justices and the Court itself for holding opposing views on the interpretation of the Court. Speaker Nancy Pelosi called the justices “right-wing politicians” and many journalists called the Court “activists.” Most concerning were legal analysts who fueled misleading accounts of the opinion or the record of this Court. Notably, it is precisely what the Court anticipated in condemning those who would make arguments “designed to stoke unfounded fear.” Continue reading “The Dobbs Decision Unleashes Rage and Revisionism”
As predicted, the Supreme Court handed down a momentous opinion in favor of Second Amendment rights today in New York State Rifle & Pistol Association, Inc. v. Bruen. In what will likely prove one of the most important decisions in his illustrious career as a conservative jurist, Justice Clarence Thomas wrote a 6-3 majority opinion that brought greater clarity to this and future challenges under the Second Amendment. Continue reading “The Supreme Court Hands Down Major Gun Rights Victory”
Rep. Bill Pascrell (D-N.J.) has joined the call for Supreme Court Justice Clarence Thomas to resign due to the communications of his wife, Virginia “Ginni” Thomas, with lawyer John Eastman supporting the certification challenge. It is still unclear what that email contains, but Ginni Thomas was a vocal supporter for former President Donald Trump in both public and private. Pascrell called Thomas “a corrupt jurist” and said that he could not be considered “neutral” given the fact that his wife is a political activist. Pascrell’s demand comes after Sen. Sheldon Whitehouse called for an investigation into the matter. The demand is entirely without legal or ethical merit absent new evidence that Justice Thomas himself engaged in political advocacy while ruling on related cases. Continue reading “Democratic Member Calls for Justice Thomas to Resign Over Wife’s Activism”
In Oscar Wilde’s The Importance of Being Earnest, Cecily observes “I have never met any really wicked person before… I am so afraid he will look just like every one else.” The quote came to mind this week after Senator Sheldon Whitehouse (D-RI) demanded an investigation of Ginni Thomas. Whitehouse insists that there is a “big investigative gap” in pursuing the leaker of the draft Supreme Court opinion in the pending abortion case, but not the wife of Clarence Thomas. Ginni Thomas supported the challenge to the certification of the 2020 election. Continue reading “Sen. Whitehouse Calls for Investigation of Ginni Thomas”
Despite the alleged attempted murder of Justice Brett Kavanaugh, the pro-choice group Ruth Sent Us descended upon the home of Justice Amy Coney Barrett and her family within 24 hours of the arrest. Now, the group has posted information on where Justice Barrett goes to church and where her children go to school. It is another example of our age of rage. Indeed, it is an example of the rage addiction that has taken hold of many in the country where even potentially targeting the children of a judge or justice is considered fair game. Continue reading “Pro-Choice Protesters Post School Information on the Children of Justice Amy Coney Barrett”
“So you say you want a revolution.” When they sang those lines, the Beatles could well have been talking about Democratic leaders today. Revolution seems much in the minds and the rhetoric of politicians who are continuing to threaten swift responses to the Court if it rules against their wishes. The latest armchair revolutionary is President Joe Biden himself who went on Jimmy Kimmel to do the first sit down interview in months. To his credit, Biden was promising only a “mini-Revolution.” Continue reading “So You Say You Want a Revolution? President Biden Continues to Talk Revolution if the Court does not Rule as Demanded”
This morning I will be testifying before the Senate Judiciary Committee on the expansion of domestic terrorism investigations. The hearing is titled “Examining the ‘Metastasizing’ Domestic Terrorism Threat After the Buffalo Attack” and will begin at 10 am in the Hart Senate Office Building (Room 216). The written testimony is linked below.
Below is my column in The Hill on the calls for gun bans after the massacre in Uvalde, Texas. The massacre has already been used as the basis for calls to end the filibuster, pack the court, limits on gun ownership, and outright bans. One member called for all of the above. The rhetoric is again outstripping the reality of constitutional and practical limits for gun control. Last night, President Joe Biden formally called for banning “assault weapons” while repeating the dubious claim that an earlier ban sharply reduced mass shootings.
Here is the column:
We recently discussed how President Joe Biden has not only repeated false statements about the history of the Second Amendment, but has failed to acknowledge the limits imposed by the Second Amendment in calling for a crackdown on “assault weapons.” He recently has not, however, called specifically for a ban, which would run into serious constitutional challenges. Now Vice President Kamala Harris has taken that step forward in demanding a ban on “assault weapons.” (Notably, this week, a Republican house member also came out in favor of a ban on “assault weapons.”)
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:
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.
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””
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: