Tag: SCOTUS

Supreme Court Commission Comes Through

 

On April 9, President Biden issued an executive order to form a bipartisan presidential commission to examine possible reforms to the United States Supreme Court. The call came at the same time as a strong progressive push to expand the size of the court in order to allow the Democrats—with their wafer-thin control of the Senate—to add perhaps as many as four justices to the court. The plan was to convert a six-three Republican majority into a seven-six Democratic majority—assuming that the president could fill four seats with the midyear elections looming.

No more. After the issuance of the commission’s preliminary draft report, it seems that the push to “pack the court” is over. In general, the commission is to be highly commended for its preliminary work. Its exhaustive draft report has none of the signs of a political screed. Its long, thorough discussions are largely free of the inflammatory rhetoric that mars so much of the partisan debate on the role of the court. The report is well-written, scrupulously documented, and filled with arguments that start with “on the one hand,” only to move adroitly to address the issues “on the other hand.” Just that stylistic choice offers a strong sign that no controversial reform will occur. Meddling with Supreme Court tradition and practice requires a solid consensus about what is broken and an equally solid conviction of what counts as an appropriate cure.

On the court-packing issue, it is quite clear that the consensus is against the move. Indeed, I was both somewhat surprised and highly pleased with the carefulness of many of the major institutional submissions. The American Civil Liberties Union has, to say the least, taken positions that are different from mine on a wide number of issues, such as (in alphabetical order) affirmative action, abortion rights, campaign finance, and voting rights, to name a few. But the thoughtful submission by its national legal director, David Cole, sounded more like the ACLU of old, insisting that the dominant role of the courts is to protect those “unable to protect themselves through the political process,” which promptly led it to be “skeptical of proposals for court reform that would risk further politicizing the court or the processes for the selection of justices, such as proposal to increase the court’s size.”

QOTD: Three Generations of Retcons is Enough

 

Jacobson v. Massachusetts has become the catchall decision for justifying all kinds of pandemic countermeasures. I had not looked into the matter in detail, as I am not a lawyer (thank God). However, I ran across an article on SSRN from Josh Blackman (one of the writers at The Volokh Conspiracy) that dismantles how a decision to allow a jurisdiction to levy a fine equivalent to a parking ticket for the refusal to receive a vaccination against one of the most deadly diseases known to man (smallpox is a Risk Group 4 select agent, alongside Ebola and its relatives; by comparison, anthrax and the Black Death are merely Risk Group 3) mutated like a virus into allowing all kinds of measures under the rubric of public health.

It is perhaps unsurprising that the most disturbing U.S. Supreme Court decision to remain on the books as good case law plays a role here. Buck v. Bell is the infamous decision that allowed for the state to forcibly perform medical procedures on people without their consent to uphold the good of the gene pool, giving us the infamous line that “three generations of imbeciles are enough.” As if forcing a person to be fixed like a stray dog is not bad enough, there is evidence that Carrie Buck was not even mentally handicapped, nor was her honor student child, and she was likely set up by her lawyer, who was either horrendously incompetent or actually in favor of negative eugenics. You could use this decision to justify forced medical procedures on every person who holds a political position unpopular with political elites.

One True Supreme Court Justice

 

Why is it so hard to get more than one or two real Supreme Court Justices at a time? Last week, Justice Thomas gave a stirring speech, a model of a classic American. Some excerpts:

“What had given my life meaning and sense of belonging, that this country was my home, was jettisoned as old-fashioned and antiquated. … It was easy and convenient to fill that void with victimhood. … So much of my time focused intently on our racial differences and grievances, much like today.”

“As I matured, I began to see that the theories of my young adulthood were destructive and self-defeating. … I had rejected my country, my birthright as a citizen, and I had nothing to show for it.”

Join Jim and Greg as they applaud conservative and mainstream media for calling out Senate Majority Leader Chuck Schumer over his lie that all Americans who wanted to get out of Afghanistan are now out. In a double-fisted bad martini, they hammer the State Department for greatly hindering the efforts of private groups to get Americans and our Afghan allies out of the country.  They also revisit the Obama administration’s terrible swap of five high-value Taliban figures for American deserter Bowe Bergdahl – and the impact it is having right now. And they marvel at the large number of online leftists who honestly think they can get Brett Kavanaugh removed from the U.S. Supreme Court.

Member Post

 

After the shameful American surrender and withdrawal in Afghanistan over the past 2 weeks – leaving Americans behind after an armed conflict for the first time in US history – President Biden and Democrats understandably want to change the subject. Source: RasmussenReports.com Preview Open

Join Ricochet!

This is a members-only post on Ricochet's Member Feed. Want to read it? Join Ricochet’s community of conservatives and be part of the conversation. Get your first month free.

Let’s Not Re-Investigate Justice Kavanaugh

 

As if there wasn’t enough turmoil in this country this summer, Democrats are calling for another investigation of Justice Brett Kavanaugh. On a personal level, I’m disgusted by the very thought that the Democrats are even considering such an action. Then I learned that Senator Sheldon Whitehouse was leading the pack of attack; his involvement speaks volumes to the corruption of the Democrat party.

Jonathan Turley wrote an excellent article on this debacle:

The furious allegations of a cover-up began this week with a letter from Assistant FBI Director Jill Tyson to Sens. Whitehouse and Chris Coons (D-Del.). The letter was a delayed response to an earlier inquiry on the investigation of tips given to the FBI during Kavanaugh’s heated confirmation process. To call the letter ‘delayed’ is an understatement by a measure of years. Whitehouse and others are correct in objecting to the fact that these senators asked two years earlier about these tips and any investigation. There is no excuse for failing to respond to members of Congress on such questions, particularly given their oversight responsibilities of the FBI and the Department of Justice (DOJ).

Join Jim and Greg as they welcome New York Democrats planning to expedite the impeachment probe of Gov. Andrew Cuomo and a new poll showing most New Yorkers want him out of office. They also hammer President Biden for bringing back the eviction moratorium while admitting the Supreme Court will probably rule against him. And they’re exasperated as NIH Director Dr. Francis Collins goes on national television and tells parents to mask up at home to protect their kids from COVID.

 

This week on “The Learning Curve,” co-hosts Cara Candal and Gerard Robinson talk with Michael Bindas, a senior attorney with the Institute for Justice (IJ). They discuss IJ’s 2020 landmark U.S. Supreme Court win in Espinoza v. Montana Department of Revenue, and its implications for state Blaine Amendments, bigoted legal barriers that have blocked religious liberty and school choice for over a century. They delve into the current legal and political status of school choice in America, at a time of unprecedented support for education savings account, education tax credit, and voucher programs. As lead counsel for the plaintiffs in the Maine school tuitioning case, Carson v. Makin, recently granted certiorari by the U.S. Supreme Court, he explains the central issues, and what another major victory could mean for religious school parents. They then turn to higher education, and Michael offers thoughts on why access to religiously-affiliated primary and secondary schooling is still viewed so differently than students attending religiously-affiliated colleges and universities through state and federal grant and loan programs.

Stories of the Week: EdWeek reports that school board meetings across the country have become increasingly rancorous as a result of growing partisanship, the lack of local news coverage, and social media – to the detriment of students’ academic success. The U.S. Department of Education announced the expansion of the Second Chance Pell program, allowing up to 200 colleges to provide prison education programs for those who have previously been unable to access federal need-based financial aid.

Hubwonk Host Joe Selvaggi talks with CATO research fellow and constitutional scholar Trevor Burrus about the recent Supreme Court ruling, Americans For Prosperity Foundation v. Bonta, reaffirming the right to privacy by denying the state of California the right to compel non-profits to disclose their list of donors.

Guest:
Trevor Burrus is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and in the Center for the Study of Science, as well as editor-in-chief of the Cato Supreme Court Review. His research interests include constitutional law, civil and criminal law, legal and political philosophy, legal history, and the interface between science and public policy. His academic work has appeared in journals such as the Harvard Journal of Law and Public Policy, the New York University Journal of Law and Liberty, the New York University Annual Survey of American Law, the Syracuse Law Review, and many others. His popular writing has appeared in the Washington Post, the New York TimesUSA TodayForbes, the Huffington Post, the New York Daily News, and others.

Jim and guest host applaud SCOTUS for upholding an Arizona election law that is similar to Georgia’s election integrity laws which dooms Democrats’ hopes of overturning them. They give another round of applause to SCOTUS for protecting donor privacy, overturning a California law which forces nonprofits to disclosing donor information. Finally, they giggle at former staff members’ complaints of mistreatment from VP Harris which seem to be a little too critical.

 

Greg and guest host Alexandra DeSanctis Marr cheer a unanimous Supreme Court decision that says faith-based adoption agencies can limit their clients to traditionally married couples and that government must work with them. They also call out Illinois Sen. Dick Durbin for comparing those who want to kill the filibuster with the heroes of D-Day. And they react to the Biden administration issuing guidance declaring that Title IX protections against sex discrimination apply to sexual orientation and gender identity issues as well.

 

Join Jim & Greg as they discuss the unanimous Supreme Court ruling that illegal immigrants can’t obtain green cards. They also marvel at the Guatemalan president blaming the Biden administration for the border crisis and give credit to Vice President Kamala Harris for finally telling Central Americans not to come to our border. But when will she go to the border herself? Finally, they clink glasses to a new poll showing New York City voters want more police on the streets.

 

This week on “The Learning Curve,” Gerard and Cara talk with Melvin Urofsky, Professor of Law & Public Policy and Professor Emeritus of History at Virginia Commonwealth University, and the author of several books, including Louis D. Brandeis: A Life and Dissent and the Supreme Court. Professor Urofsky shares insights on Justice Brandeis’s jurisprudence, and why he consistently ranks among the three most influential Supreme Court justices in American history. They discuss his understanding of American constitutionalism, and how he interpreted the law to diminish consolidated financial and federal power, what he called the “curse of bigness” – big banks and business monopolies, as well as big government. They also explore Brandeis’s dissenting opinion in the U.S. Supreme Court case New State Ice Co. v. Liebmann, perhaps the best-known 20th-century articulation of the role of the states as “laboratories of democracy” under our federal constitutional system. They delve into some of the most influential dissenting opinions in U.S. Supreme Court history. For example, Justice John Marshall Harlan, the lone dissenter in the Court’s infamous 1896 Plessy v. Ferguson case, offered legal views that would later lead to the landmark 1954 Brown v. Board of Education decision overturning “separate but equal.” Professor Urofsky also offers thoughts from his 2020 book, The Affirmative Action Puzzle: A Living History from Reconstruction to Today, on one of the thorniest political and legal topics of our era. He concludes the interview with a reading from Justice Brandeis’s concurring opinion in defense of free speech in Whitney v. California.

Stories of the Week: Cara and Gerard discuss National Charter Schools Week, and this education sector’s success in improving opportunity for underserved students. In Florida, nearly 95 percent of seniors enrolled in the state’s Tax Credit Scholarship program graduated from high school during the 2019-20 school year, the second highest graduation rate since they began tracking it in 2015. A new study of admissions at 99 colleges shows that despite adopting test-optional policies to increase diversity, the share of low-income students or students of color at these colleges has risen by only a percentage point.

Justice Clarence Thomas Rips SCOTUS, and No Lives Matter

 

Whenever Justice Thomas calls out his colleagues on the Supreme Court, I am almost always delighted for a number of reasons. For one, his comments are incisive; for another, he usually represents my own views. And finally, in this particular case, he spoke up on the issue of life and death :

When addressing juvenile murderers, this Court has stated that ‘children are different’ and that courts must consider ‘a child’s lesser culpability,’ Thomas wrote. ‘And yet, when assessing the Court-created right of an individual of the same age to seek an abortion, Members of this Court take pains to emphasize a ‘young woman’s’ right to choose.

Labor Law and ‘Takings’ Clause Collide

 

Last week the Supreme Court heard oral argument in the highly contentious case of Cedar Point Nursery v. Hassid. The case lies at the troubled junction of labor and takings law, which operate from fundamentally different premises.

In this instance, state regulations under the California Agricultural Labor Relations Act of 1975 (CALRA) provide that “an agricultural employer’s property shall be available to any one labor organization for no more than four (4) thirty-day periods in any calendar year.” The period of access covers one hour before work, one hour after work, and one hour during lunch for employees to “meet and talk” about union representation.

In this case, however, the United Farm Workers (UFW) entered Cedar Point’s trim sheds one morning at 6 a.m. using bullhorns, during work hours, thereby disrupting the employer’s business operations. That simple action gives rise to two very different claims. The first, and more modest, claim is that the UFW engaged in an unfair labor act under CALRA by going beyond its regulation. The second is that the CALRA itself is unconstitutional. Any trespass onto the employer’s property, which the regulation explicitly authorizes, constitutes a taking of private property, Cedar Point argues, in violation of the Fifth Amendment that provides “nor shall private property be taken for public use without just compensation.”

Host Joe Selvaggi talks with legal scholar and George Mason University Law Professor Ilya Somin about the details, the merits, and the likely implications of the Supreme Court case, New Hampshire v. Massachusetts, on state taxation power, federalism, and the power to vote with one’s feet.

Interview Guest:

Should Political Speech be a “Civil Right?”

 

It is time to look at expanding anti-discrimination laws to protect political expression.

Conservative media these days are replete with examples of people on the right being intimated, shunned, deplatformed, fired and worse for expressions of support for former President Trump. “No, anyone who supported the president, voted for him or worked for his administration now has to be hunted down and purged,” New York Post columnist Miranda Devine opined recently.

“They’re losing their jobs, having their insurance canceled, their book contracts and recording deals torn up. They are being banned from flying or banking or speaking on social media.

More year-end awards today!  Jim and Greg embark on the second half of their six-episode saga known as the 2020 Three Martini Lunch Awards. Today, they offer up their selections for the best political idea, worst political idea, and boldest political tactics for the year.

We hope you had a wonderful Christmas and we’re glad to have you back as we return to our prestigious Three Martini Lunch Awards. Today, Jim and Greg discuss the worst scandals of 2020, which Jim choosing an international mess and Greg opting for a domestic one. Next, we sift through a ton of possibilities for the best and worst political theater of 2020.

Join Jim and Greg as they offer the second installment of their prestigious year-end awards. Today they remark on the people they’re most sorry to see pass away in 2020. They also share their choices for rising political stars and the political figures who appear to be fading into oblivion – rarely to be heard from again.