Supreme Court

Memo to Supreme Court: Grant Cert in the Weyerhaeuser Case!

Featured image The government we live under does not resemble the one that is described in the Constitution. The principal reason for this is the power of federal regulatory agencies, which has grown explosively and is virtually unrestrained by Congress, the courts or even the president, who nominally controls the executive branch. The extra-constitutional administrative state now represents a grave threat to our liberties. The Supreme Court has an opportunity to begin »

A framework for analyzing the Colorado wedding cake case

Featured image Listening to the oral argument before the Supreme Court in the wedding cake case, it struck me how artificial the discussion was. Much of it centered on whether and under what circumstances cakes are speech. Bizarre. I don’t blame the advocates or the current Justices for the content of the argument. They must be mindful of Supreme Court precedents whether or not, as a practical matter, they fit this case »

You knew this was coming, right?

Featured image Jay Kaganoff, writing in the Washington Post says: “Fellow conservatives, it’s time to call on Clarence Thomas to resign.” No it isn’t. The controversy over Anita Hill’s allegations against Justice Thomas has nothing material in common with the cases of Al Franken, John Conyers, or Roy Moore. First, Thomas categorically denied Hill’s allegations. Franken admits to some of the allegations against him. Moore admitted, at least initially, that he dated »

An encouraging oral argument in the Colorado cake case

Featured image The Supreme Court heard oral argument today in the Colorado cake maker case. The issue is whether Colorado can coerce a baker, Jack Phillips, into making a custom cake for a gay wedding when he objects to gay marriage on religious grounds. It quickly became apparent that, to no one’s surprise, Justice Kennedy’s vote will likely decide the case. The questions Kennedy asked created some discomfort for both sides, but »

Supreme Court Stays Enforcement of Orders Enjoining Travel Ban

Featured image Today the U.S. Supreme Court gave the Trump administration a major victory, staying the orders of two lower courts that enjoined enforcement of the president’s revised travel ban. This means that the orders can be enforced, and travel from the affected countries can be banned or limited, while the courts continue to process appeals in the two cases. You can read the Court’s two orders here and here. They were »

Scalia speaks

Featured image Time has compiled a list of the top 10 non-fiction books of 2017. I haven’t read any of them, but any list that has Hillary Clinton and Ta-Nehisi Coates at numbers 1 and 2, as Time’s does, is some kind of a joke. My own top 10 list would certainly include Scalia Speaks: Reflections on Law, Faith, and a Life Well Lived somewhere near the top, if not at number »

Trump’s Latest Supreme Court List Is Interesting

Featured image This morning I was quoted in the New York Post on President Trump’s addition of five more names to his list of potential Supreme Court nominees. Given the blizzard of news in recent days, Trump’s latest Supreme Court list has been somewhat lost in the shuffle. But it is actually quite interesting. Some observations: 1) Some have suggested that the point of releasing this list is to support Roy Moore »

Supreme Court dismisses challenge to travel ban

Featured image Yesterday, the Supreme Court dismissed a challenge to a now-expired version of President Trump’s 90-day ban on travel from six countries. The U.S. Court of Appeals for the Fourth Circuit had upheld that challenge. The Supreme Court concluded that the challenge is moot because the ban has expired. A new travel ban has superseded it. The Court stated: We granted certiorari in this case to resolve a challenge to “the »

How the Associated Press Spins the Supreme Court

Featured image The Associated Press is a loyal servant of the Democratic Party and its liberal components. If you doubt that assertion, consider today’s AP article on the upcoming U.S. Supreme Court term by reporter Mark Sherman. Like pretty much all AP reporters, Sherman is a liberal, as you can see from his Twitter feed. So how does a liberal reporter spin his coverage of the Supreme Court? It’s easy: he just »

The Wages of Borking

Featured image This week marks the 30th anniversary of one of the turning points in modern American politics: the travesty of the Bork confirmation hearings. The “Borking” of Bork changed the rules of judicial appointments, and have poisoned judicial politics, ever since. It was a shameful moment because of the duplicity and hypocrisy of Democrats. Several days before President Reagan announced Bork’s nomination to the Supreme Court, Howard Baker and Ed Meese »

Democratic Party Smears Neil Gorsuch As a Bigot

Featured image I am not easily shocked these days, but an email sent by the Democratic Congressional Campaign Committee an hour and a half ago shocked me. First the email, then my comments on it. Click to enlarge: The Supreme Court is not currently in session and issuing opinions, so I was puzzled as to what the Democratic Party was talking about. After a little poking around, I found that the Court »

Trump DOJ backs baker in gay wedding case

Featured image Yesterday, the Department of Justice filed an amicus (friend of the court) brief on behalf of Jack Phillips, the baker who was found to have violated the Colorado Anti-Discrimination Act by refusing to create a cake to celebrate a gay marriage. Phillips said he doesn’t create wedding cakes for same-sex couples because to do so would violate his religious beliefs. In court, Phillips argued that requiring him to create a »

Orfield plays the race card

Featured image University of Minnesota Law School Professor Myron Orfield has materialized in the Star Tribune this morning to play the race card against Minnesota Supreme Court Justice Stras. The Senate’s consideration of Justice Stras’s nomination to the Eighth Circuit has been blocked by Minnesota Senators Amy Klobuchar and Al Franken. With the dishonesty that permeates his column, Orfield declares that Klobuchar and Franken “are exhibiting appropriate diligence.” It is true that »

Justice Kennedy considering retirement next year

Featured image In this NPR story, the headline of which is about how conservative Justice Gorsuch’s votes have been, we learn that Justice Kennedy has not hired law clerks for the term that will begin in October 2018. Moreover, he has let applicants for these clerkship jobs know he is considering retirement. This doesn’t mean Kennedy will retire before the October 2018 term begins. However, the fact that he’s seriously considering doing »

Life lessons from the chief

Featured image Courtesy of an appreciative account by Washington Post Supreme Court reporter Robert Barnes, Hugh Hewitt tipped his listeners this morning to Chief Justice John Roberts’s ninth-grade commencement address early last month at the Cardigan Mountain School. Cardigan Mountain is an elite boarding school for boys in grades six through nine in Caanan, New Hampshire. Barnes observes: “Sitting up front under a large white tent as John Glover Roberts Jr. took »

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 »