In an interesting 5-4 split, the Supreme Court has denied the Trump Administration’s application for a stay of a district court’s temporary restraining order (TRO) against the Administration’s effort to freeze $2 billion in funds from the U.S. Agency for International Development. The Administration is down by one vote but hardly out in the fight with lower courts over the control of this funding. Continue reading “Down But Not Out: The Supreme Court Rules 5-4 Against the Freezing $2 Billion in USAID Funds”
Category: Supreme Court
Late Saturday, D.C. District Judge Amy Berman Jackson ruled that President Donald Trump violated federal law in firing Hampton Dellinger, head of the Office of Special Counsel. Jackson’s decision is forceful, well-written, and challengeable under existing precedent. Indeed, it may have just set up an appeal that both presidents and professors have long waited for to reinforce presidential powers. Continue reading “Spoiling for a Fight: Why the Administration’s Loss Last Night May Be Not Just Expected But Welcomed”
Today, the U.S. Supreme Court will hear a case with potentially sweeping implications for discrimination cases. Ames v. Ohio Department of Youth Service involves an Ohio woman, Marlean Ames, who claims she was discriminated against for being straight as less-qualified LGBT colleagues in Ohio’s youth corrections system were promoted. Continue reading “Supreme Court To Hear Major Employment Discrimination Case Today”
The Trump administration made an interesting pivot on Friday in the major case on gender-transitioning legislation. The case involving the Tennessee ban on the use of puberty blockers and hormone therapy for transgender minors is expected to establish new and significant precedent in the area. The oral argument appeared to favor the state. The problem is that, if the Trump Administration were to withdraw its challenge, it would work against the interests of Tennessee and other states in seeking a final resolution before the Court. Accordingly, the Trump Administration created a type of Pushmi-Pullyu position: it renounced the Biden position and then retained the challenge by encouraging the Court to move forward with a final decision. Continue reading “The Pushmi-Pullyu: The Administration Renounces and Retains the Biden Challenge to Gender-Transitioning Law”
Below is my column in the Hill on the move of the Trump Administration against birthright citizenship. The Trump Administration believes that this is a fight worth either winning or even losing in the courts. Roughly half of the country oppose birthright citizenship. The key is where those voters are coming from. The minority of voters supporting the right are overwhelmingly coming from the Democratic core that opposed Trump in the last election. In other words, it is an issue appealing to the very margin voters that will be needed in the midterm election. That makes this a perfect wedge issue either as a court fight or, if unsuccessful, a fight for a constitutional amendment.
Here is the column: Continue reading “Spoiling for a Fight: Why Challenging Birthright Citizenship May Be a Win-Win Strategy for Trump”
On Friday, the Supreme Court agreed to review a potentially blockbuster religion clause case in Oklahoma Charter School Board v. Drummond. However, there is a catch. While the lawyers representing St. Isidore of Seville Catholic Virtual School may need every vote they can get in this heavily contested area, they may have to prevail without Justice Amy Coney Barrett who recused herself for an unstated reason. Continue reading “Barrett-Lite: The Supreme Court Takes Up Major New Religion Clause Case With One Notable Exception”
The release of the first part of Jack Smith’s report at midnight was the special counsel’s version of the Supreme Court’s Dobbs decision: we had seen it before. Putting aside the public filings where Smith fought to get this information out before the election, there was little new in the report. What the report did not contain is an explanation of how Smith destroyed his own cases against Trump. However, one notable element was Smith’s reliance on a dubious concurrence by Justice Ketanji Brown Jackson, the subject of a prior column on what would be an interpretation that was too clever by half. Continue reading “Jacksonian Obstruction: Smith Explains How He Was Planning to Circumvent the Decision in Fischer”
The Supreme Court voted 5-4 to allow the sentencing of President-elect Donald Trump to go forward today. The bare majority was secured when Chief Justice John Roberts and Associate Justice Amy Coney Barrett voted with their liberal colleagues, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. However, part of the rationale for the decision was that Acting New York Justice Juan Merchan indicated that he was going to issue an unconditional discharge without any jail or probation. The question is whether Merchan could pull a bait-and-switch and decide to impose punishment. It is highly unlikely but intriguing. Continue reading “Green Light: Supreme Court Votes to Allow Trump Sentencing But Could Merchan Pull a Bait-and-Switch?”
As an academic and a legal commentator, I have sometimes disagreed with the United States Supreme Court, but I often stress the good-faith differences in how certain rights or protections are interpreted. One case, however, has long stood out for me as wildly off-base and wrongly decided: Kelo v. New London. The case allowed the government to seize property from one private party and then give it to another private party. There is now a petition before the Supreme Court that would allow it to reconsider this pernicious precedent. The Court should grant review in Bowers v. Oneida County Industrial Development Agency precisely for that purpose. Continue reading “Eminently Overdue: The Supreme Court Considers New York Case That Could Overturn the Infamous Kelo Decision”
Supreme Court Justice Sonia Sotomayor is under fire today for seemingly dismissing medical concerns over the risks of puberty blockers and gender surgeries for minors with a comparison to taking Aspirin. In the oral arguments in United States v. Skrmetti, Sotomayor pointed out that there are risks to any medical procedure or drug. However, the analogy belittled the concerns of many parents and groups over the research on the dangers of these treatments. It also highlighted how the Biden Administration and liberal justices were discarding countervailing research inconveniently at odds with their preferred legal conclusion.
Democracy appears to be losing its appeal on the left. After campaigning on panic politics and predicting the imminent death of democracy, some on the left are now calling to burn the system down in light of Republicans not only taking both houses and the White House but Trump likely winning the popular vote. Continue reading ““Remember, Remember, the 5th of November”: Democrats Seem to be Moving on From Democracy”
Below is my column in Fox.com on the impact of the reelection of Donald Trump and the flipping of the Senate for the Supreme Court. The election may have proven one of the most critical for the Court in its history.
Here is the column: Continue reading “A Shift in Time Saves Nine: How The Trump Election Impacts the Supreme Court”
Kamala Harris this week faced accusations of plagiarism over multiple sections of her book, “Smart on Crime: A Career Prosecutor’s Plan to Make Us Safer.”
This is not the first such accusation, Harris has been accused of lifting a story from Martin Luther King. In 1965, King described “a moment in Birmingham when a white policeman accosted a little Negro girl, seven or eight years old, who was walking in a demonstration with her mother.” King recounted how the policeman asked the little girl “‘What do you want?’ and the little girl looked at him straight in the eye and answered, ‘Fee-dom’.” Harris would later tell the story of how her mother asked her “Kamala, what’s wrong? What do you want?” and I wailed back, “Fweedom.”
As found by various media outlets, the new allegations from her book would qualify as plagiarism despite the denial of the campaign. It is doubtful it will matter to many voters in the hardened political silos of this election. However, it could prompt a long-needed discussion about how we handle plagiarism in academia.
Here is a slightly expanded version of my Hill column:
In prior columns, academic articles, and my book, “The Indispensable Right, I discuss the never-ending litigation targeting Jack Phillips, the Christian baker who declined to make cakes that violated his religious beliefs. Phillips continues to be the subject of continuing lawsuits despite the Supreme Court upholding his right to decline to make expressive products for ceremonies or celebrations that he finds immoral. Now the Colorado Supreme Court has dismissed an action brought by a transgender lawyer against the cake shop and its owner. Continue reading “Colorado Supreme Court Dismisses Another Lawsuit Against Masterpiece Cakeshop”
Author and cultural critic Fran Lebowitz added voice to the unhinged calls on the left for trashing the Supreme Court. As I discussed recently in the Wall Street Journal (and in my book), there is a growing counter-constitutional movement in the United States led by law professors, pundits, and celebrities. Lebowitz amplified those calls in a radical demand to simply get rid of the Court. Continue reading “Lebowitz Calls for Biden-Harris to “Dissolve the Supreme Court””