Supreme Court

Fisher in Wonderland

Featured image Today’s oral argument before the Supreme Court in Fisher v. University of Texas at Austin had an Alice in Wonderland quality to it. But I suppose that became inevitable when the Court granted universities permission to discriminate in admissions on the basis of race in the name of “diversity.” Much of the time of Fisher’s lawyer, who is challenging the way the University used of racial preferences to exclude his »

A return to the future for racial preferences at the Supreme Court

Featured image This week marks the half way point of the 25 year period after which Justice O’Connor famously said, “We [the Supreme Court] expect that. . .the use of racial preferences will no longer be necessary.” As if to commemorate the occasion, the Supreme Court tomorrow will hear argument in Fisher v. University of Texas at Austin in which the use of race in the University’s undergraduate admissions program is under »

Hide the women and children, the Supreme Court is back in session

Featured image The Supreme Court is back in session, and the mainstream media has coalesced around the narrative that this term will see sweeping victories for conservatives. This theme is being peddled by the Washington Post, CNN, and NPR. I found NPR’s coverage especially nauseating: ROBERT SIEGEL, HOST: They’re back. The justices of the U.S. Supreme Court opened a new term today with subjects on the docket as diverse and contentious as »

Ivy League honors conservative justices by not honoring them

Featured image Law professor John McGinnis finds that Ivy League schools are giving short shrift to conservative Supreme Court justices when they confer honorary degrees. Is anyone surprised? The numbers are stark. Of the fourteen honorary degrees bestowed by Ivy League institutions to living Supreme Court justices twelve went to those on the left of the Court. Justice Ginsburg is the champ: she has an honorary degree from every Ivy League university »

With Justice Alito

Featured image In his new Conversation, Bill Kristol sits down with Supreme Court Associate Justice Samuel Alito (video below). We proudly published Justice Alito’s review of Michael Paulsen’s new book on the Constitution here this past April. It is good to have the opportunity to hear him speak off the bench at length on matters of interest and importance. The video is posted in full and broken into chapters here; the transcript »

Unlocking Lochner

Featured image Don’t miss George Will’s column today, “The 110-Year-Old Case That Still Inspires Supreme Court Debates.” It’s about the infamous case of Lochner v. New York from 1906—the decision that struck down a New York state maximum hour law for bakers that elicited one of the most memorable single sentences of dissent in Supreme Court history, Oliver Wendell Holmes rant that “[t]he Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social »

Philip Hamburger: Chevron’s last days?

Featured image Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School and the author, most recently, of Is Administrative Law Unlawful? (Editor’s note: Answer: Yes.) It is easily one of the most important books published in 2014 and certainly one of the most important I have ever read. Professor Hamburger has graciously taken time out from his vacation to comment at our request on the Supreme »

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 »

The Wages of Bork

Featured image Increasingly it appears that the failure of the Supreme Court nomination of Robert Bork in 1987 was a watershed moment for the history of jurisprudence over the last generation, as Anthony Kennedy has been so central to so many bad rulings (and, fairness demands, a handful of good ones, like Citizens United). While Chief Justice Roberts’s jurisprudence may remain inscrutable, nothing about Kennedy should surprise us, though. It was known »

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 »

The need to get our minds right

Featured image National Review has posted a symposium contemplating what the Supreme Court has wrought in its gay marriage decision of this past Friday. The decision represents itself as the culmination of a long line of cases and related social developments. In the first contribution to the symposium, however, Notre Dame’s Professor Gerard Bradley asserts that it is only the end of the beginning. Concluding with an allusion to the prison warden’s »

A Question For Those Who Celebrate the Gay Marriage Decision

Featured image What would you think if the Court had decided the opposite? That is, if the Court had held that same sex marriage is unconstitutional, so that all state laws approving such unions are void, and all court decisions establishing same sex marriage are overruled. Would you then think it appropriate for “five lawyers,” as Chief Justice Roberts put it, to remove this issue from the democratic process and purport to »

Should Conservatives Give Up On the Supreme Court As a Court?

Featured image This morning Andy McCarthy takes up a topic that we discussed on our podcast yesterday: the fact that in major, publicly-important cases, the liberal justices always–and I mean always–vote as a political bloc: Already, an ocean of ink has been spilled analyzing, lauding, and bemoaning the Supreme Court’s work this week: a second life line tossed to SCOTUScare in just three years; the location of a heretofore unknown constitutional right »

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 »

From Justice Scalia’s dissent

Featured image Justice Scalia’s dissent in today’s gay marriage diktat is all must reading. Short of posting the whole thing, let me offer these pointed excerpts (to which I have added some paragraphing in the interest of readability): The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, »

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 »

Oy Vey!

Featured image Where to start?  (After the epic face palms, that is.) In no particular order: • Let’s not have any more talk from the Left about how we have a “conservative” or “reactionary” Supreme Court.  Also, let’s note that the author of the majority opinion in the same sex-marriage case, Anthony Kennedy, also wrote the Citizens United opinion that some on the Left have compared to Dred Scott.  (Seriously.) It is »