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E.J. Dionne's Feeble "Gotcha" Attempt

In his Washington Post column today, E.J. Dionne argues that in King v. Burwell, Justice Scalia, relying on his own stated interpretive methods and respecting his own past statements about the Affordable Care Act itself, should vote to uphold the Obama administration’s decision to treat federally-created insurance exchanges in many of the states as equivalent to state-established exchanges, for purposes of tax subsidies and the employer and individual mandates. On the question of Scalia’s textualism and originalism when it comes to reading statutes, and the application of his methods to King, Dionne relies without further elaboration on Professor Abbe Gluck’s recent post at SCOTUSblog.  So I’ll rely without further elaboration on Professor Jonathan Adler’s extended reply to Gluck at the Volokh Conspiracy, and focus instead on Dionne’s other point—that Scalia has joined in … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

Senator Hatch Against “Unilateral Disarmament on Nominations”

It’s no surprise that lots of conservative leaders recognize the folly of the idea being pressed by some Republican Senate staffers to reimpose the judicial filibuster. I’m also glad to see Senator Orrin Hatch weigh in wisely in this Wall Street Journal op-ed (subscriber-only) today that he co-authored with former White House counsel Boyden Gray. Some excerpts: It will fall to the next Republican president to counteract President Obama’s aggressive efforts to stack the federal courts in favor of his party’s ideological agenda. But achieving such balance would be made all the more difficult—if not impossible—if Republicans choose to reinstate the previous filibuster rule now that the damage to the nation’s judiciary has already been done. To restore the rule now, after Mr. Obama has installed his controversial judges, would cement a … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

Against the Revival of Nomination Filibusters

Just a quick comment to note that I wholly agree with Ed Whelan that it would be a mistake for Republicans to revive the possibility of filibusters for judicial nominations.  The de facto requirement for sixty votes to confirm a judge created by Senate Democrats was an aberration without historical precedent.  Until Senate Democrats sought to obstruct some of President George W. Bush’s nominees, no judicial nominee who enjoyed majority support had ever been blocked by a filibuster. (This is even true for the Supreme Court, as the nomination of Justice Abe Fortas to Chief Justice never enjoyed majority support.)  Thus restoring the filibuster for judicial nominations does not restore some honored or age-old tradition. Rather it would resuscitate an obstructionist measure invented for partisan advantage. I suspect Ed is correct … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

Raisin Administrative Committee

Yes, that’s right, we’re from the Raisin Administrative Committee and we’re here to take half of your raisins. George Leef explains why the Supreme Court should grant review in this case, but, really, isn’t it obvious? If the government can take your raisins, then it can take your chocolate chips. Read more CompleteRaisin Administrative Committee … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

On the Necessity for Normative Analysis in <i>Hobby Lobby</i>

In his recent NRO post responding to my essay on the Hobby Lobby case, Ed Whelan agrees that the decision in Hobby Lobby was correct, but thinks that I am incorrect to attack Justice Alito for slips in his reasoning. What is clear from his opening remark is that we are operating on different levels. The key claim in my essay is that the state does not have a compelling state interest to eradicate discrimination on grounds of race, or indeed anything else, in a competitive market. I summarized these arguments extensively elsewhere, most notably in my recent article in the Stanford Law Review where I offered my views on Title II of the 1964 Civil Rights Act that deals with discrimination in public accommodations. Ed Whelan’s position instead focuses … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

Revised <i>Heritage Guide to the Constitution</i>

The Heritage Foundation is today releasing a revised second edition of its Heritage Guide to the Constitution, the first edition of which was issued in 2005. The second edition “takes into account a decade of Supreme Court decisions and legal scholarship on such issues as gun rights, religious freedom, campaign finance, civil rights, and health care reform.” On a review of the advanced galley, I am confident that the praise that I offered for the first edition (in this NR book review) will apply fully to the revised edition: The Heritage Guide to the Constitution is an invaluable reference work that anyone interested in learning more about the Constitution should have on his bookshelf. It consists primarily of a couple hundred or so brief essays — the vast majority no more than a … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

The Meandering Judicial Philosophy of Judge Posner

The Washington Blade reports that Judge Richard Posner has essentially flip-flopped on the constitutional status of marriage definitions. As you probably read recently, Posner wrote the panel opinion for the Seventh Circuit striking down Indiana and Wisconsin’s traditional marriage definitions. The meandering 40-page opinion covers a lot of territory, ranging from psychological studies to his thoughts on parenting. Ed Whelan (Parts 1, 2, 3, and 4) and law professor Josh Blackman have already written about the opinion’s weaknesses on the merits. Interestingly, the Blade notes that Posner was not always so confident in his views about a constitutional right to same-sex marriage: In a 1997 book review published in the Michigan Law Review, for example, Posner was skeptical that the Constitution guaranteed same-sex marriage. The subject was “The Case for Same-Sex Marriage: … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

Our New Trial-Lawyer Overlords

This past Tuesday, the Missouri Supreme Court struck down a portion of the state’s tort-reform laws, declaring in Lewellen v. Franklin that a cap on punitive damages violates the right to trial by jury. If this movie sounds familiar, you may be remembering Watts v. Lester E. Cox Medical Centers from 2012, when the same court struck down Missouri’s cap on medical-malpractice damages (at least noneconomic damages) on the same theory. These cases are the latest manifestation of the trial lawyers’ domination of the Missouri Bar and the so-called “merit selection” process. It won’t surprise you to know that the trial lawyers are big fans of “merit selection” because it gives them the power to choose which candidates for Missouri Supreme Court are ultimately presented to the governor for nomination. Conflict … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

Ohio’s Emergency Appeal of Injunction Against Uniform Early-Voting Rules

In a case that might very quickly reach the Supreme Court, the state of Ohio has filed its Sixth Circuit merits brief in support of its emergency appeal of a federal district court’s preliminary injunction against an Ohio statute and related secretary of state directive that together provide expansive opportunities and uniform statewide hours for early absentee voting for this November’s elections.  Here’s some brief background: On the recommendation of a bipartisan body that represents all of Ohio’s county boards of elections, the Ohio legislature in February enacted a statute that changed the start of Ohio’s early absentee voting from five weeks before the election to four weeks before the election and that eliminated a one-week overlap with the close of the registration period. The Ohio secretary of state then established uniform … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

Challenge to Wisconsin Voter ID

According to this news account, the challenge to invalidate Wisconsin’s voter-ID law prior to the upcoming election appeared to get a cold reception today before the Seventh Circuit panel hearing the case. The proper framework for determining whether such laws violate Section 2 of the Voting Rights Act is the subject of this paper by Hans von Spakovsky and me.   Read more CompleteChallenge to Wisconsin Voter ID … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

Clarification on Bush Appointees

In my post last week on “What the November Elections Mean for the Federal Courts of Appeals,” I stated, “As things now stand, President Obama has appointed exactly the same number of federal appellate judges—52—as President George W. Bush appointed in his first six years.” I inadvertently included in the Bush total his short-term recess appointment of Charles Pickering. Bush’s six-year total for confirmed federal appellate judges was 51. Also, since the time of that post, the Senate has confirmed Obama’s nomination of Jill Pryor to the Eleventh Circuit. So that puts Obama ahead of Bush 53 to 51. (adsbygoogle = window.adsbygoogle || []).push({}); Read more CompleteClarification on Bush Appointees … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

Re: Ohio’s Emergency Appeal of Injunction Against Uniform Early-Voting Rules

A follow-up to this post from last week: The same very liberal panel of Sixth Circuit judges (Keith, Moore, and Clay) who refused to stay the district court’s injunction against Ohio’s uniform early-voting rules has now written a lengthy opinion affirming the injunction. I’ll again happily quote liberal election-law expert Rick Hasen: 1. Like the district court, this (very liberal) panel of 6th Circuit judges reads both the Equal Protection Clause of the U.S. Constitution as well as Section 2 of the Voting Rights Act very broadly to hold it illegal for Ohio to move from 35 to 28 days of early voting, to eliminate a Sunday of voting used by African-American churches for “Souls to the Polls” drives, and to eliminate “Golden Week,” in which a new (or moving) voter … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

My Amicus Brief in <i>Young v. UPS</i>

Yesterday I filed an amicus brief with the Supreme Court in support of Peggy Young, who is seeking to overturn a decision by the Fourth Circuit Court of Appeals that took an atextual and unprincipled approach to the question of accommodations under the Pregnancy Discrimination Act.  You can find the amicus brief here. Read more CompleteMy Amicus Brief in <i>Young v. UPS</i> … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

Eleventh Circuit Gives Barbarous Cops a Haircut

And George Leef approves, here. Read more CompleteEleventh Circuit Gives Barbarous Cops a Haircut … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

Garbage In, Garbage Out

In May, the New York Times highlighted a study—or, rather, a summary of a study—by political scientists Lee Epstein, Christopher M. Parker, and Jeffrey A. Segal that purported to show that in First Amendment speech cases “the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.” Further, the study summary contended that for many justices—especially Scalia and Thomas but also Roberts, Kennedy, O’Connor, and Stevens—there was “a statistically significant difference … between support for the free expression claim when the speaker is liberal versus conservative.” In my post about the article, I identified two obvious flaws in the study. First, Epstein, Parker, and Segal seem blind to the possibility that there may be factors other than speaker-favoritism or speaker-hostility in a … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

Ginsburg the Indispensable

From an Elle interview: [Elle reporter:] I’m not sure how to ask this, but a lot of people who admire and respect you wonder if you’ll resign while President Obama is in office. [Justice Ginsburg:] Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Republicans [sic]] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided. As long as I can do the job full steam…. I think I’ll recognize when the time comes that I can’t any … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

Getting Things Backwards

As Justice O’Connor once recognized, the Supreme Court’s pro-abortion rulings “make[] it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” Alas, O’Connor herself later adopted the same practice of ad hoc nullification when she co-authored the majority opinion in Planned Parenthood v. Casey (1992) and when she joined the Court’s opinion striking down Nebraska’s ban on partial-birth abortion (Stenberg v. Carhart (2000)). So long as Planned Parenthood v. Casey survives, the “abortion distortion” will continue to impair the ability of citizens to make abortion policy through the ordinary democratic processes. Linda Greenhouse thus gets things backwards when she complains that judges haven’t been willing to treat abortion … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

Followup on <i>Harris v. Quinn</i>

The National Right to Work Foundation notes this week that, in light of its U.S. Supreme Court victory a few weeks ago in Harris v. Quinn, “government union bosses from across the country are now abandoning their forced dues demands on home-based personal care and childcare providers,” and then gives chapter and verse. Relatedly, George Leef has this to say this week in favor of right-to-work laws. Read more CompleteFollowup on <i>Harris v. Quinn</i> … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

Yes, Chris Christie Did Appoint Liberals to the New Jersey Supreme Court

While Governor Christie is quick to defend his judicial picks with conclusory assertions that his judges are conservative, we at the Judicial Crisis Network are not the only ones who think he’s all bluster.  Liberal New Jersey columnist George Amick thinks it’s a good thing that Christie’s nominees aren’t any more conservative than their predecessors: The governor doth protest, but the sponsors of the ad had a point. Despite his vow to change the direction of the Supreme Court, there’s no evidence that he’s really done so. Moreover, there’s little likelihood that he’ll have an opportunity to put even one more justice on the bench before he leaves office. He details how Christie’s judges in several cases have more liberal backgrounds and voting records than those they replaced. Read it all here. Read more CompleteYes, Chris Christie … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

An Era of Unanimity on the Michigan Supreme Court?

In a Detroit News op-ed, Chief Justice Young and Justice Bridget McCormack of the Michigan Supreme Court explain an interesting trend on their court:  Just a few years ago, you could count on one hand the number of unanimous opinions. This term, the court spoke unanimously 15 times – roughly 40 percent of our opinions. What does this mean? In resolving some of the most contentious issues involving interpretation of statutes and our constitutions, the seven justices saw eye to eye.  Moreover, while we categorically reject the notion that justices make decisions based on political background, the data shows that this rejection is warranted. Consider the number of cases decided by a 5-2 majority divided along so-called party lines. This happened only once and even then the reasons for dissent were different. Now, … Read entire article »

Filed under: From the Bench, Overstepping Legislation, Politics, To Many Laws

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