Supreme Court

Supreme Court to parties in “Little Sisters of the Poor” — work it out yourselves

Featured image The Supreme Court has issued a unanimous per curiam opinion in the Little Sisters of the Poor case. Rather than deciding the legal issues before it, the Court vacated the judgment of the Court of Appeals, which was adverse to the Little Sisters, and sent the case back to that court so the parties can be given “sufficient time to resolve any outstanding issues between them.” Justices Ginsburg and Sotomayor »

Will Liberals’ Posthumous Smears of Justice Scalia Succeed?

Featured image George Mason University’s law school was founded in 1979. Justice Antonin Scalia spoke at the dedication of the law school’s current building in 1999 and was a guest lecturer at the university. The law school developed a plan to expand its faculty and scholarship program, and in the wake of Justice Scalia’s death, an anonymous donor offered $20 million to fund those programs. The Charles Koch Foundation added a $10 »

What a Hillary-Shaped Supreme Court Would Look Like

Featured image Mark Tushnet of Harvard Law School is one of the leading leftists in legal academia today. Yesterday on Jack Balkin’s website Balkinization, Tushnet lets it all hang out how he thinks a reliably liberal Supreme Court should think and act. I’ve interspersed a couple of my comments in [bolded brackets]. Pay special attention to his Point #6: 1      A jurisprudence of “wrong the day it was decided.” Liberals should be compiling lists »

Democrats channel Herman Cain

Featured image Politico reports that the White House and its allies are about to commence a new campaign to get a hearing and a vote for Judge Merrick Garland. They’re calling it the 9-9-9 campaign: nine states, during nine days, to push for a court with nine justices. The nine states are ones where Democrats think they might be able to pick up Senate seats this Fall. In addition, to the usual »

Ted Olson’s Bad Idea, Take 2

Featured image Further to Paul’s point below on “Ted Olson’s Bad Idea,” just take in the dreams of Erwin Chemerinsky, writing a couple weeks ago in The Atlantic about his ideas for what the Supreme Court could do with a durable liberal majority. Chemernisky, one of the leading liberal law professors in the country, doesn’t even try to disguise or dress up his undemocratic will to power: Thinking of a Court where »

Ted Olson’s bad idea

Featured image The estimable Ted Olson, writing in the Wall Street Journal, argues in favor of Republicans giving Judge Merrick Garland, President Obama’s Supreme Court nominee, “a good look, a respectful hearing and a vote on the merits.” More broadly, Olson calls for “a pact. . .among responsible Republican and Democratic leaders to give well-qualified Supreme Court nominees of either party a hearing and a vote within 120-180 days of a nomination.” »

The eight member Supreme Court as an expression of congressional disgust

Featured image In defending their unwillingness to proceed with the nomination of Merrick Garland to the Supreme Court, Republican Senators argue that the confirmation of a new Justice should await the upcoming election. “Let the people decide” has become the mantra. It’s an okay argument, made stronger by decades of Senate practice regarding the treatment of judicial nominees in a presidential election year. But it implies that there should be no obstruction »

Confirmation Bias, Part Two

Featured image In a post called “Confirmation Bias,” I discussed “Confirmation,” an HBO film about the 1991 hearings on Clarence Thomas’ nomination to the Supreme Court, and Anita Hill’s sexual harassment allegations against him. When I wrote the post two months ago, Senators John Danforth and Alan Simpson, two moderate Republicans who supported the Thomas nomination, had complained about the script they saw. Simpson called it a “seriously distorted” version of the »

Oral argument in DAPA case highlights the need to block Merrick Garland

Featured image The Supreme Court heard oral argument today in United States v. Texas. This is the case in which Texas and 25 other states challenge the Obama administration’s deferred-action policy (DAPA), otherwise known as executive amnesty, an attempt to give legal status and work authorizations to more than four million illegal immigrants. We have written often about the case. See here and here, for example. Elizabeth Slattery of the Heritage Foundation »

Can Obama get Garland on the Court without Senate confirmation?

Featured image Gregory Diskant, an accomplished New York lawyer, argues in the Washington Post that President Obama could appoint Judge Merrick Garland to the Supreme Court without the Senate having confirmed the nomination. How is this possible? Because, says Diskant, the Senate could be deemed to have waived its “advice and consent” role on a Supreme Court nomination if it “fails to act” on the nomination within a “reasonable” time. Diskant’s argument »

Meeting with Merrick Garland is not a big deal

Featured image We haven’t written much about the Senate’s treatment of, and the posturing by Senators surrounding, Judge Merrick Garland’s nomination to the Supreme Court. The reason I haven’t written much is that the state of play seems clear: Judge Garland will not get a hearing before the November election. Afterwards, if a Democrat wins the presidency, Republicans will consider their options. In the absence of any real suspense, the discussion has »

Justice Scalia will be missed at the Birchmere

Featured image The Birchmere is a legendary music hall in Alexandria, Virginia. It presents top-notch bluegrass, country, folk, and jazz performers. In honor of its 50th anniversary, the Washington Post asked some of the artists who know the club best to share their recollections. All of the responses are worth checking out, but Power Line readers may be most interested in that of 14-time Grammy Award winner Ricky Skaggs. He says, in »

Joe Biden’s revisionist history of his own views [UPDATED]

Featured image When politicians sanctimoniously advocate positions that everyone knows are the opposite of the ones they would take if the partisan setting were flipped, they reinforce the contempt Americans feel towards them as a class. The dispute over whether to hold hearings for and/or to confirm Merrick Garland is a case in point. Both sides are guilty to some degree of advancing positions they would denounce if the shoe were on »

Another Reason to Be Glad We’re Rid of the Bushes

Featured image Last month I noted that the New York Times had found its newest “conservative” pet, University of Minnesota law professor Richard Painter, who offered up a “conservative” case for campaign finance reform. Today Painter, who served in the White House counsel’s office under George W. Bush, returns to the Times to tell us that “Bush Would Have Nominated Garland.” His advice boils down to: when the other party holds the »

Judge Garland’s “judicial restraint”

Featured image The mainstream media, serving its traditional role as tool of the Democratic Party, is breathlessly pushing the talking point that Judge Merrick Garland is a practitioner of “judicial restraint.” Robert Barnes of the Washington Post peddles the theme here. David Savage, writing for the Los Angeles Times, does so here. Greg Weiner demonstrates, however, that the “judicial restraint” displayed by Judge Garland consists of deferring to the administrative state, not »

The Case for GOP Obstructionism

Featured image Further to my observation this morning that game theory argues in favor of Republican obstruction of Judge Garland’s Supreme Court nomination, Bay Area Power Line reader Emmett C. Stanton sends along the following article which he submitted to the San Francisco Comical immediately following the death of Justice Scalia, but which the paper rejected. Here Stanton explains more fully why the logic of “prisoners’ dilemma,” the core exercise of game »

The Supreme Court and the Hypocrisy of the Left

Featured image Lately I’ve been arguing with lefty acquaintances of mine who say, “Isn’t it terrible for the Republicans to play tit-for-tat over Court nominations” that surely they don’t seriously expect Republicans never to reciprocate for the shameful treatment of Republican judicial nominees, starting with Bork. Over 50 Bush judicial nominees were never given a hearing, let alone a vote—and not just in the final year in office. Democrats blocked a hearing »