Supreme Court

The merits and me

Featured image Reading the Supreme Court’s per curiam (unsigned) opinion in the Trump v. IRAP (Fourth Circuit) and Trump v. Hawaii (Ninth Circuit) “travel ban” cases today, I was struck by this. The Court unanimously stayed most of the injunctive relief granted by the lower courts in the two cases. In doing so, however, the Court doesn’t even address the usually key factor of likelihood of success on the merits. Apart from »

Supreme Court allows watered-down version of travel ban to take effect

Featured image A lot went down this morning at the Supreme Court, as was to be expected considering that this was the last day of the Court’s term. First, the Court decided to allow a limited version of President Trump’s already limited ban on travelers from six mostly Muslim countries to take effect. In technical terms, it partially stayed lower court decisions striking down the ban. The Court also agreed to decide »

Is Neil Gorsuch the Next Justice Thomas?

Featured image The Associated Press gives us good news about Justice Neil Gorsuch’s tenure on the Supreme Court so far, but can’t resist smearing Justice Clarence Thomas along the way. First the good news: To see where Justice Neil Gorsuch might fit on the Supreme Court, watch the company he keeps. Gorsuch has already paired up four times with Justice Clarence Thomas — the court’s most conservative member — in separate opinions »

The Next Liberal Lamentation

Featured image What’s the most hated Supreme Court decision on the left of the last few years? Why, Citizens United, of course, which leftists blame for just about every bad imaginable. Aggrieved leftists often compare it to the Dred Scott decision—seriously, they do. So if Justice Anthony Kennedy announces his retirement from the Court tomorrow, can we expect to see liberal headlines saying, “Left Celebrates as Author of Modern ‘Dred Scott’ Decision »

Supreme Court: There’s no “hate speech” exception to 1st Amendment

Featured image The Supreme Court ruled this morning that the government cannot deny full trademark protection to allegedly racially offensive trademarks. The opinions are here. The case involved an Asian-American band called “The Slants.” It sought federal registration of that mark. The Patent and Trademark Office denied the application under a Lanham Act provision prohibiting trademarks that may “disparage. . .or bring. . .into contemp[t] or disrepute” any “persons, living or dead.” »

Trump’s tweets and the travel ban case

Featured image I agree with Scott that President Trump’s tweet attacking his Justice Department was disheartening. It shows Trump at his worst — trashing his own team and refusing to accept responsibility for his actions. He was the one who signed the “watered down, politically correct” executive order. From a lawyers’ perspective, Trump is the client from hell — a point made, though not in these words, by Alan Dershowitz and David »

The North Carolina redistricting case — political warfare by judicial means

Featured image Modern voting rights cases involving redistricting can be thought of as a tale of two dilemmas — one legal, one political. The legal dilemma is this: if a state legislature takes race into account in drawing districts, its action is subject to challenge under the Equal Protection Clause of the Constitution; but if it doesn’t take race into account, its action is subject to challenge under the Voting Rights Act. »

Getting to “50” if Justice Kennedy retires

Featured image Yesterday, I noted the intense speculation over whether Justice Kennedy will retire at the end of this year’s Supreme Court term. Today, CNN reports that “friends and associates believe Kennedy is seriously considering retirement.” If Kennedy doesn’t step down this year, I think there’s a very good chance he will do so next year. With the judicial filibuster now eliminated, it will only take 50 votes to confirm a successor. »

Trump says he’ll stick to his list if Kennedy retires

Featured image As the Supreme Court moves into the home stretch of its term, speculation intensifies over Justice Kennedy’s intentions. Will the Court’s lone centrist retire at the end of the term? For Justice Kennedy, it must be a case of mixed emotions. Indications are that he would like to escape the burdens that his job places on a man of 80 years. Yet, the ability to shape national policy as the »

The confirmation of Neil Gorsuch

Featured image Today is a great day to be an American. Among other things, Tenth Circuit Judge Neil Gorsuch will be confirmed to the Supreme Court and become Justice Gorsuch. He will take the seat formerly held by the remarkable Justice Antonin Scalia. The case against Neil Gorsuch: there wasn’t one. The Democrats’ opposition to Judge Gorsuch’s confirmation constituted little more than an assertion of political will conforming to the fantasies of »

Senate Republicans Come Through

Featured image While nearly everyone has been saying that Judge Neil Gorsuch’s confirmation was inevitable, I was worried. The Democrats’ filibuster of Gorsuch, a thoroughly noncontroversial nominee, seemed to make little sense unless they thought that a handful of Republican senators wouldn’t go along with the Harry Reid option, leaving the nominee stranded with fewer than 60 votes. Thankfully, that didn’t happen. The Senate voted today along party lines to do away »

Filibustering out

Featured image It’s almost funny to hear Senate Minority Leader Chuck Schumer seek to convert the Democrats’ filibuster of a vote on Neil Gorsuch’s confirmation to the Supreme Court into a matter of high principle. Almost. Even if it’s not funny, however, he should be laughed off the stage. The filibuster is a fertile source of partisan hypocrisy. It’s time to finish it off, at least with respect to the Supreme Court. »

AP: “Schumer Warns GOP” Over Gorsuch Confirmation

Featured image The Associated Press wants us to think that momentum is growing behind an anti-Gorsuch confirmation movement. It headlines: “Dem opposition to Trump court pick grows; Schumer warns GOP.” Senate Democratic opposition to President Donald Trump’s Supreme Court nominee swelled Friday as Democrats neared the numbers needed for a filibuster, setting up a showdown with Republicans who have the votes to confirm Neil Gorsuch. Sens. Claire McCaskill of Missouri, Richard Blumenthal »

Just How Dumb Are Democrats?

Featured image With the Obamacare repeal fiasco ongoing today, House Republicans are working overtime to reclaim the undisputed title as “the stupid party,” but they are wasting their time, as the Democrats seem determined to keep the title all to themselves. Elsewhere Scott has noted the dumbest questions Senate Democrats have asked soon-to-be-Justice Neil Gorsuch, but one in particular stands out—Sen. Klobuchar’s annoyance that the Constitution uses the generic pronoun “he” so »

Democrats to Filibuster Gorsuch [with comment by Paul]

Featured image Chuck Schumer announced this morning that Senate Democrats will filibuster the nomination of Neil Gorsuch to the Supreme Court. This seems like an odd decision, as Senate Republicans will no doubt follow the lead of Harry Reid and Schumer himself, by ending the filibuster for Supreme Court nominees. Gorsuch will be confirmed, and the filibuster will have been abolished in a context that is good for Republicans–on behalf of a »

Observations on the Gorsuch hearing, Part Two — Al Franken strikes out

Featured image Sen. Al Franken has become something of a hero to the left because it was in response to one of his questions that Attorney General Sessions said he “did not have communications with the Russians.” Franken never asked Sessions whether he had. Instead, Sessions volunteered this information. So this wasn’t Al Franken getting Sessions to misstate something in response to withering questions; this was dumb luck. (It is also lucky »

Observations on the Gorsuch hearing, Part One

Featured image I watched the first seven hours of the Senate Judiciary Committee’s hearing on the nomination of Neil Gorsuch. The short version is that Judge Gorsuch was terrific and that the Committee’s Democrats barely laid a glove on him. Indeed, with a few exceptions, their efforts seemed only slightly more than half-hearted. If the rest of the day went, and tomorrow goes, like the first seven hours, it’s possible that Gorsuch »