Supreme Court

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 »

Anthony Kennedy Discovers a Right to Gay Marriage [Updated]

Featured image Two hundred twenty-four years after the Constitution was ratified, Anthony Kennedy and four loyal Democrats have discovered, hidden somewhere in its provisions, a right to gay marriage. This so-called right, deemed “fundamental” by the five-justice majority, was undreamed of until a few years ago. If you want to read the decision, it is here. Yesterday’s Obamacare decision told us that we do not live under the rule of law. Today’s »

Triumph of the leftist will

Featured image The Supreme Court issued its decision in King v Burwell yesterday. The Supreme Court has posted its opinions in the case here. At issue in King was the legality of the IRS’s provision of tax credits in Obamacare exchanges established by the federal government. As Professor Jonathan Adler wrote in USA Today, the case “presents a straightforward case of statutory interpretation.” As such, it wasn’t a hard case; it was »

Have Republicans Saved the Obama Administration?

Featured image Within the last 48 hours, the Obama administration dodged two huge bullets. First, Congressional Republicans passed the trade promotion authority act, paving the way for passage of the Trans Pacific Partnership, which the administration has been negotiating for years, and the Trade In Services Agreement. Then, this morning, the Supreme Court bailed out Obamacare, rewriting key provisions of the Affordable Care Act to prevent Obamacare from collapsing, with two presumed »

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 »

Behold, the Supreme Court’s Magical Warp Field Generator!

Featured image I recall once reading an interview with one of the head writers of Star Trek: The Next Generation—you know, the faux Star Trek series where the role of Captain Kirk was reimagined by the UN and the National Organization of Women.  (No: This is not arguable. Just as there is only one real James Bond—Sean Connery, damnit—there is only one Star Trek. Simple rule: if it doesn’t have William Shatner, »

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 »