1984—When is an express signed waiver of Miranda rights not a waiver? When you try to conceal your identity by signing a false name. So rules federal district judge H. Lee Sarokin (in an unpublished opinion in United States v. Rodriguez). Rodriguez had been arrested on theft-related charges and was advised of his Miranda rights and informed that signing the waiver form would waive those rights. He signed the form, but, intent on concealing his … Read entire article »

On Monday, President Obama made a legal claim that managed to unite writers for The Federalist Society, the Wall Street Journal, and the New York Times. Eileen O’Connor, former assistant attorney general for DOJ’s tax division, summarized the case on the Federalist Society’s blog: On Friday, White House Press Secretary Jay Carney, and yesterday President Obama himself, declared that the Internal Revenue Service is an “independent agency.”  Not so, unless they are redefining the term. Most Executive Branch … Read entire article »

2006—When left-wing activist and divorce specialist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating. Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s … Read entire article »

A couple of pieces worth reading: 1. In this New York Post op-ed, Scott Walter of the Capital Research Center explores “a flip side to the scandal” over the “IRS’s targeting of conservatives trying to start tax-exempt groups”: “the agency possibly going easy on tax-exemption applications by groups doing the administration’s political work.” From his opening paragraphs: This is linked to another breaking scandal, Health and Human Services Secretary Kathleen Sebelius’ apparent fund-raising for two pet nonprofits. … Read entire article »

2005—Federal district judge Joseph F. Bataillon rules that the Nebraska constitutional provision defining marriage as “between a man and a woman” violates First Amendment associational rights, the Equal Protection Clause, and the Bill of Attainder Clause. One year later, a unanimous Eighth Circuit panel reverses all of these rulings. 2013—Happy Mother’s Day! No thanks to Ruth Bader Ginsburg, who in 1974 co-authored a report proposing that Congress abolish Mother’s Day and Father’s Day and replace them … Read entire article »

That is the question that Kermit Gosnell forces on our attention.  Two years ago I wrote about the Gosnell case here, at NRO, when he was indicted.  Today at Public Discourse I review what we have learned from the case as it was prosecuted to its successful conclusion, with three murder convictions and 21 late-term abortion convictions yesterday in Philadelphia.  A sample: Gosnell, whose clinic was shut down by the Philadelphia authorities who charged him with … Read entire article »

Back in 2011 when I was the first to highlight the extraordinary position against religious liberty that the Obama administration adopted in the Hosanna-Tabor case, I elicited a tizzy on the Left when I raised the possibility that the administration’s hostility to the ministerial exception to federal antidiscrimination laws was part and parcel of a broader ideological agenda that would have gay causes trump religious liberty. The particular case of Hosanna-Tabor had nothing to do … Read entire article »

Last March, my JCN colleague Carrie Severino wrote an excellent USA Today op-ed entitled “Gay marriage victory might backfire,” making the case that our country’s experience with Roe v. Wade should make gay marriage advocates wary of asking the U.S. Supreme Court to decide the matter once and for all.  As she explained:   The case of Roe v. Wade is instructive, because it mirrors the current state of the same-sex marriage movement in many ways. By 1973 when the Roe decision was handed down, the … Read entire article »

In one of my first essays for NRO back in 2005 (“Are You an Originalist?”), I selected the Constitution’s “natural born Citizen” criterion for eligibility to be president—a provision that then seemed at the time to be beyond the distorting effects of political bias—to illustrate that everyone intuitively recognizes the common-sense principle at the heart of the interpretive methodology of originalism: namely, that the meaning of a constitutional provision is to be determined in accordance … Read entire article »

My organization, the Judicial Education Project, has filed a Supreme Court amicae curiae brief supporting the petition for certiorari in McCullen v. Coakley. The case involves a Massachusetts statute that establishes a 35-foot fixed buffer zone around abortion clinics. The viewpoint-discriminatory statute violates the First Amendment by prohibiting communications within the buffer zone, while exempting abortion clinic employees and agents. JEP filed the brief on behalf of Molly White, Esther Ripplinger, Marlynda Augelli, and Dr. Alveda … Read entire article »

Information released yesterday by the Census Bureau about voter turnout in 2012 further undermines the constitutionality of the distinctions made by Section 5 of the Voting Rights Act between the jurisdictions it covers and those it does not. This discussion here in the Atlantic Wire concludes that “those states [now covered by Section 5] didn’t see lower-than-average black turnout. In fact, averaging both turnout and deviance from the norm in those Voting Rights Act (VRA) states, we see that … Read entire article »

Within the space of three months, the top leadership of the Boy Scouts of America floated two dramatically different revisions of the BSA’s policy against youth members and adult leaders who are “open or avowed homosexuals.” In late January, the BSA announced that it was considering a policy change under which “there would no longer be any national policy regarding sexual orientation” and the matter would instead be left to each of the various organizations … Read entire article »

1993—In Baehr v. Lewin, the Hawaii Supreme Court rules that traditional marriage is presumptively unconstitutional and orders the state to demonstrate a “compelling state interest” for denying marriage licenses to same-sex couples. In 1998, the people of Hawaii respond by amending the state constitution to confirm that the legislature has the power to reserve marriage to opposite-sex couples, and the legislature amends the constitution to define marriage as being between one man and one woman. 2003—In … Read entire article »

In cases across the country, various individuals and the family-owned corporations they operate are invoking their religious-liberty rights not to comply with the Obama administration’s HHS mandate on contraceptives (including abortifacients). A leading argument that the Obama administration is making is that “for-profit, secular companies,” unlike “non-profit, religious organizations,” are categorically incapable of engaging in an exercise of religion within the meaning of the federal Religious Freedom Restoration Act and thus have no rights under … Read entire article »

Although my name hasn’t yet been added to the online list of speakers, I am very pleased to pass along that I will be taking part in National Review’s summer cruise of the fjords of Norway (the ancestral land of a This Day in Liberal Judicial Activism superstar, former chief justice Earl Warren). The cruise runs from August 1 to 8. If the cruise interests you and the timing works for you, I’d definitely encourage you … Read entire article »

1992—The Ninth Circuit, in an opinion written by Judge Betty B. Fletcher and joined by Judge Stephen Reinhardt, rules that the provision of a government-paid sign-language interpreter to a profoundly deaf student who has chosen to attend a “sectarian” (read: Catholic) high school violates the Establishment Clause. One year later, the Supreme Court reverses the Ninth Circuit (in Zobrest v. Catalina Foothills School District) by a 5-4 vote. Chief Justice Rehnquist’s majority opinion states: “[Federal … Read entire article »

2008—Even by Justice John Paul Stevens’s unusual standards, his opinion concurring in the judgment in Baze v. Rees is remarkably strange. Stevens rambles on for some nine pages explaining the idiosyncratic bases—at bottom, “my own experience”—for his newfound view, after more than three decades on the Court, that the death penalty itself violates the Eighth Amendment. But Stevens then concludes that he will abide by the Court’s precedents that the death penalty is constitutional—and that … Read entire article »

As I spell out in Part II of my law-review essay on how the HHS mandate violates the federal Religious Freedom Restoration Act, it ought to be a simple matter for anyone to recognize that the HHS mandate substantially burdens an employer’s refusal, for religious reasons, to provide health insurance that covers contraceptives and abortifacients. Simply put, the HHS mandate makes such refusal illegal and subjects the refusing employer to massive fines. Under clear Supreme … Read entire article »

1906—William J. Brennan, Jr., is born in Newark, New Jersey. In his 34 years on the Court, Brennan will deploy his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution. 1996—More Newark: The New York Times reports that an 11-member council of the Third Circuit (which covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands) unanimously denied Judge … Read entire article »

President Obama’s attempt to circumvent the Senate by unilaterally appointing Ohio politician Richard Cordray to the Consumer Financial Protection Bureau may have been premised on his expectation that he would get away with it. If so, he seems to have miscalculated, because the other two branches of government are providing him with a Sesame Street demonstration of the concept of “checks and balances.” Senate Republicans wrote in February that they would “continue to oppose the consideration … Read entire article »