Supreme Court

The Power Line Show, Ep. 130: The Cuyahoga On Fire, 50 Years Later, with Jonathan Adler

Featured image Tomorrow marks the 50th anniversary of one of the iconic moments of modern environmental history—the infamous Cuyahoga River fire in Cleveland. Things were so bad, the legend goes, that rivers were catching fire! But most of what you think you know about that story is incomplete or inaccurate, argues Jonathan H. Adler, the Johan Verheij Professor of Law at Case Western Reserve University School of Law. In a now-famous article, »

A Blow For Religious Freedom?

Featured image Today the U.S. Supreme Court decided American Legion et al. v. American Humanist Assn. et al., a case arising out of an effort by an atheist group to force the destruction of a monument to local residents killed in World War I. The monument, erected in 1918 in Prince George’s County, Maryland, on land that is now public, included the shape of a Latin cross. Therefore, the Humanist Association argued, »

Conservative Justices divide in case upholding Virginia’s ban on uranium mining

Featured image Last year, I wrote about the case of Virginia Uranium, Inc. v. Warren, which the Supreme Court had just agreed to hear. The issue was whether the Atomic Energy Act preempts a state law (a ban on uranium mining) that on its face regulates an activity within its jurisdiction (uranium mining), but has the purpose and effect of regulating the radiological safety hazards of activities entrusted to the Nuclear Regulatory »

The Consistent Mitch McConnell

Featured image Senate Majority Leader Mitch McConnell ignited a firestorm yesterday at an event in Paducah, Kentucky. McConnell responded to a question from the audience: “Should a Supreme Court justice die next year, what will your position be on filling that spot?” the attendee asked. After a pause, McConnell answered, “Oh, we’d fill it.” Democrats, harkening back to McConnell’s refusal to bring Merrick Garland’s nomination up for a vote during the last »

The abortion quagmire

Featured image The Supreme Court’s decision constitutionalizing the alleged right to abortion in Roe v. Wade (1973) was about as bad as it gets. Expressing the Court’s sheer will to power, it is one of the worst decisions in the history of the Supreme Court. The principled liberal law professor John Hart Ely called out the Court in the classic Yale Law Journal comment “The Wages of Crying Wolf.” Professor Ely condemned »

A free speech case the Supreme Court should hear

Featured image Teresa Seeberger rented rooms in a house she owned in Davenport, Iowa. When Seeberger learned that her tenant’s fifteen-year-old daughter had become pregnant, she told the tenant that she and her daughter would have to leave. When the tenant asked why, Seeberger said: “You don’t even pay rent on time the way it is . . . now you’re going to bring another person into the mix.” The eviction was »

Justice Kavanaugh, the new Anthony Kennedy?

Featured image It’s way too early to answer this question in the affirmative. However, it’s not a ridiculous question. Reportedly, Kavanaugh has been in the majority more often than any other Justice so far this term. This suggests that Kavanaugh, not Chief Justice Roberts, is at the ideological center of the Court — the place where Kennedy resided after Justice O’Connor retired. It doesn’t mean that Kavanaugh is as centrist as Justice »

Supreme Court will hear key LGBT cases

Featured image The Supreme Court has granted certiorari in three key cases where the issue is whether Title VII of the Civil Rights Act of 1964 protects LGBT individuals from employment discrimination. The cases are Bostock v. Clayton County, Altitude Express v. Zarda, and Harris Funeral Homes v. EEOC. Bostock and Zarda raise the question of whether Title VII protects gays and lesbians from employment discrimination. In Harris Funeral Homes, the issue »

A Roberts-Kavanaugh bromance?

Featured image “Conservatives’ takeover of Supreme Court stalled by John Roberts-Brett Kavanaugh bromance.” That’s the headline of a story in USA Today. The author explains: Chief Justice John Roberts and the court’s newest member, Brett Kavanaugh, have voted in tandem on nearly every case that’s come before them since Kavanaugh joined the court in October. They’ve been more likely to side with the court’s liberal justices than its other conservatives. The two »

Why is Trump losing so often in court?

Featured image Yesterday, the Supreme Court upheld the Trump administration’s position that the government has the power to arrest noncitizens who commit certain crimes and hold them in immigration jails before a deportation proceeding, without regard to how long ago they were released from prison. Two immigrants had argued that statutory language barred the government from arresting them after they were free for 24 hours, a deadline that often would be difficult »

The Supreme Court As House of Lords

Featured image Radical Democrats have begun demanding that their party’s nominees pledge to “pack” the Supreme Court, if elected, by appointing left-wing judges to offset the current conservative majority. An obvious precedent for this strategy is Franklin Roosevelt’s threat to pack the court in the 1930s, which seemingly caused some justices to begin approving constitutionally questionable New Deal measures. There is another historical precedent that I find more suggestive. In the late »

A milquetoast Supreme Court?

Featured image Earlier this year, I wrote about how the Supreme Court was ducking important issues about the rights of gay and transgender individuals. The questions it has been avoiding are (1) whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual preference and (2) whether it prohibits discrimination based on transgender status. Together, these two questions affect the rights of millions, if not tens of »

A battle the Trump administration should relish

Featured image Yesterday, John noted that the escalating Democratic attacks on Catholicism are, in part, an attempt to prepare the battlefield for the day when Justice Ginsburg dies or is unable to continue on the Supreme Court. In that event, said John, President Trump will likely nominate Judge Amy Coney Barrett to replace Ginsburg, and Democrats will make Barrett’s religious faith the basis for attacking her nomination. To which I say, bring »

Supreme Court continues to duck key LGBT cases

Featured image In this post from last week, I described how the Supreme Court has avoided hearing cases relating to key LGBT issues that ought to be decided one way or the other. Most notably, it has ducked the issue of whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of. . .sex,” within the meaning of Title VII of the Civil Rights Act of 1964. Lower »

Supreme Court can’t decide whether to decide key LGBT cases

Featured image The Supreme Court has been presented with two sets of cases relating to issues at the core of the LGBT agenda. Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda raise the question of whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of. . .sex,” within the meaning of Title VII of the Civil Rights Act of 1964. Lower courts have divided »

An opportunity to roll back the administrative state

Featured image Earlier this month, the Supreme Court agreed to hear a case that might well have major implications for administrative law. The case is Kisor v. Wilkie, in which a Marine seeks retroactive benefits for his PTSD. Why is this case so important? Because, as David French explains, it turns on the deference, if any, the VA’s interpretation of the word “relevant” in the applicable federal regulations should receive. French explains »

The Supreme Court would prefer not to

Featured image You may have heard yesterday that the Trump administration “suffered a defeat in the Supreme Court” or words to that effect, with Chief Justice Roberts joining the devout leftists to cast the deciding vote. Mark Sherman’s AP story leads: “A divided Supreme Court won’t let the Trump administration begin enforcing a ban on asylum for any immigrants who illegally cross the U.S.-Mexico border.” Adam Liptak’s New York Times story leads: »