Author Archives: Paul Mirengoff

Aging and sentimentality in judges

Featured image Before I head to Europe, let me expand, using thoughts Bill Otis presented to me, on why I think older judges are more likely than younger ones to decide cases based on sentiment. Resisting sentimentality requires discipline and energy. Discipline can subside with the onset of old age. As Bill puts it: By the time they get to their sixties, most talented lawyers have essentially made it in life, and »

Off to Europe

Featured image I will be in Europe for the next two weeks. In Paris, where I’ll be for a large portion of the trip, the Eiffel Tower will be illuminated, but presumably not in rainbow colors to celebrate gay marriage. Sad to say, the governments of the countries I’ll be visiting all have a better understanding of Iran, and world as a whole, than President Obama does. What a sad commentary. If, »

The quest for ideological purity in Supreme Court Justices

Featured image In our podcast last week, we tried to explain why Democratic-appointed Supreme Court Justices march in lockstep in the big, closely divided Supreme Court cases, while one Republican-appointed Justice (Anthony Kennedy) cannot be counted on at all to vote with his more reliably conservative brethren and a second (John Roberts) has parted company in two of most important cases decided in his tenure. I offered one possible explanation. Liberalism, I »

This day in baseball history: Twins win twice, cling to first place

Featured image 1965 was only the third year since 1948 that the New York Yankees did not win the American League pennant. Unlike the previous two instances — 1954 (when they won 103 games) and 1959 (when they were only 4 games back in early July) — the ’65 Yankees were never in contention. On this day 50 years ago, they were in sixth place, 10 games off the pace. That pace »

Hillary sags in early states

Featured image Rich Lowry says that a “plugged-in lefty” tells him he believes that Bernie Sanders will defeat Hillary Clinton in both Iowa and New Hampshire. This scenario may sound far-fetched, but polling data suggests it could come to pass. A new WMUR/CNN Granite State Poll, conducted by the University of New Hampshire Survey Center from June 18 to 24, puts Sanders within 8 points of Clinton, 43-35 (with a margin of »

Justice Kennedy’s eyes are wide shut on the gay rights assault on religion

Featured image In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Justice Kennedy acknowledged the dangers of ruling that disparate impact analysis applies to Fair Housing Act cases, and he tried to erect limitations that would avoid these dangers. However, as Justice Alito showed in his dissent, the supposed limitations will not constrain liberal bureaucrats and judges. A parallel exchange can be found in today’s ruling finding a »

In housing case, Justice Kennedy’s eyes are wide shut

Featured image I wrote here about yesterday’s decision by the Supreme Court in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. By a 5-4 vote, with Justice Kennedy writing for the majority, the Court held that the Fair Housing Act allows lawsuits based on disparate impact. Usually in a case like this, it is the dissent that warns of the dire consequences that may well flow from the »

Looks like Hillary did not give State Dept. all of her work-related emails

Featured image Earlier this month, we learned that Sidney Blumenthal turned over to Trey Gowdy’s committee 61 emails in which he corresponded with Hillary Clinton that the State Department hadn’t produced in response to a subpoena by the committee for such documents. The question was: did State have the documents but fail to produce them to the committee or did State not have the documents because Hillary, who kept them on a »

From Justice Scalia’s dissent

Featured image Justice Scalia dissented vigorously from the Supreme Court’s decision upholding Obamacare subsidies on the federal exchange. Justices Thomas and Alito joined in that dissent. Here are key excerpts from Scalia’s dissent: We should start calling this law SCOTUScare. The Court interprets §36B to award tax credits on both federal and state Exchanges. It accepts that the “most natural sense” of the phrase “Exchange established by the State” is an Exchange »

Supreme Court upholds Obamacare subsidies [With Comment by John]

Featured image The vote was 6-3. Chief Justice Roberts wrote the opinion. The dissenters were Justices Scalia, Thomas, and Alito. Two big wins for the Obama administration today, the other being the housing case (see post below). UPDATE: According to SCOTUSblog, where I’m following today’s developments, the majority acknowledges the strength of the argument that the plain language of the statute permits subsidies only on state exchanges. However, the majority says that »

Supreme Court finds disparate impact claims cognizable in housing cases

Featured image The Supreme Court has just affirmed the Fifth Circuit’s ruling that the Fair Housing Act allows lawsuits based on disparate impact – that is, an allegation that a law or practice has a discriminatory effect, even if it wasn’t based on a discriminatory purpose. The case is Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. The vote was 5-4. Justice Kennedy wrote the opinion. Without reading »

Freddie Gray autopsy report raises problems for prosecution

Featured image The Baltimore Sun says it has obtained a copy of the autopsy report in the Freddie Gray case. The Sun hasn’t published the report but presents a summary of it here. If the Sun’s description is accurate, the report will likely hurt, perhaps fatally, the prosecution’s case at least with respect to its most serious charges. Before getting into specifics, let me observe that, as described by the Sun, the »

Hillary relies on Republicans to be a party of cowards

Featured image Hillary Clinton has made “voting rights” the centerpiece of her presidential campaign. Christian Adams reports: In Houston, Hillary made election process rules a focus of her campaign. By process, I mean who votes, when they vote, and how they vote. While Republicans tend to focus on issues, Democrats realize that if they dominate the process of the election, the power to control the issues will follow. Process brings power. Hillary’s »

Obama expounds on racism, superficially

Featured image President Obama said yesterday that “we are not cured of [racism].” He also said that “the legacy of slavery, Jim Crow, discrimination in almost every institution of our lives. . .casts a long shadow and that’s still part of our DNA that’s passed on.” Let’s consider these assertions. The second consists of cliched metaphors (“casts a long shadow” and “part of our DNA”). As such, they are difficult to evaluate. »

Dartmouth alum provides clarity on “torture”

Featured image Robert Grenier served in the CIA for 27 years. In 2001, as station chief in Islamabad, he developed a CIA war plan for southern Afghanistan that relied on Afghans to drive Al Qaeda and Taliban fighters from Kabul and install Hamid Karzai as the country’s new president. He describes these events in a new book called 88 Days to Kandahar. Grenier also helped coordinate covert operations in support of the »

Lack of self-restraint makes CEOs, and capitalism, easy targets

Featured image I’ve heard it said that in the 1950s and early 1960s, doctors often drove Buicks even though they could afford Cadillacs. Maybe they didn’t want to show off. Or maybe they didn’t want to be subjected to the kind of joke that Alfred Hitchcock used in “The Man Who Knew Too Much” when Jimmy Stewart (as a doctor) and Doris Day describe the medical procedures that are paying for their »

Good news from South Carolina [UPDATED]

Featured image As John has noted, the Confederate battle flag is under fire in South Carolina. Sen. Lindsey Graham, Sen. Tim Scott, and Gov. Nikki Haley — Republicans all — have called for it to be removed from the state capitol grounds in Columbia, South Carolina. I agree that it’s time to take the flag down. Not because its presence caused Dylann Roof to kill blacks. It didn’t. Not because removing the »