Tag: SCOTUS

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.

Fannie and Freddie Revisited

 

The US Supreme Court heard the oral argument this month in Collins v. Mnuchin, a high-stakes case worth roughly $29 billion. The case was argued on terms that ordinary people would rightfully find utterly unintelligible. At stake was the legitimacy of the key features of the federal bailout of Fannie Mae and Freddie Mac, the two government-sponsored enterprises (GSEs) that dominate the residential home mortgage market.

The bailout began in the frenzied days after the 2008 banking crisis. Initially, the federal government agreed to contribute more than $188 billion to the two companies in exchange for senior preferred stock that carried with it a 10 percent dividend, or $18.8 billion per year. That deal was not negotiated by the trustees of Fannie and Freddie, as they had been ousted from their positions by a conservator, Edward DeMarco, the acting director of the Federal Housing Finance Agency (FHFA), which was given power to oversee the residential mortgage market. DeMarco had an obvious conflict of interest in making this deal because he was negotiating against the Department of Treasury, where he had been a senior official between 1993 and 2003.

The 2008 deal remained stable until August 2012, when DeMarco and Treasury renegotiated the transaction, such that the 10 percent dividend was eliminated in favor of a Net Worth Sweep (NWS) in the Third Amendment to the original deal. That NWS took all the dividends in perpetuity from both Fannie and Freddie and paid them into the federal treasury, leaving the companies with no cash, no liquidation preferences, and no voting rights, so that their only asset was a lawsuit against both FHFA and Treasury Secretary Steven Mnuchin as a stand-in for the United States government.

Member Post

 

So much of the left’s political argument is really just a massive case of projection. Nowhere is this more true than at the Supreme Court. Many liberal media types and political commentators, not to mention major Democrat politicians, made the case that Trump’s Supreme Court picks would simply act as rubber stamps for any contested […]

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Join Jim and Greg for a very lively Friday podcast! First, they cheer the Supreme Court for telling the 9th Circuit to reconsider a case where churches face tighter restrictions than non-religious gatherings. They also hammer Los Angeles and California as their COVID restrictions even forbid “unnecessary walking” and effectively make people prisoners in their own homes. And they react to Joe Biden’s confusing comments about what would happen if he and Kamala Harris ever have a major disagreement over principle.

Join Jim and Greg as they reveal what they’re politically thankful for in 2020. From the fight against COVID to domestic politics to major events on the world stage, they each find three things they’re thankful for from this difficult, unpredictable year.

Happy Thanksgiving to all 3 Martini Lunch listeners and your families! There will be no podcast on Thursday. Please join us Friday for our special Black Friday edition, as Jim and Greg pick out gifts for various political figures.

Member Post

 

We find ourselves in an impossible situation regarding the final results of the November 2020 election. And I can’t see how we will get ourselves out of it. The difficulty began when President Trump, in his usual hyperbolic way, immediately declared the election a massive fraud. I’m not saying he wasn’t correct, but it gave […]

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Religious Liberty Should Prevail

 

This past week in Fulton v. City of Philadelphia, the Supreme Court re-entered the dangerous minefield at the junction of religious liberty and anti-discrimination. The current dispute arose when Philadelphia’s Department of Human Services announced that it would no longer refer children to Catholic Social Services (CSS) for placement in foster care because CSS refused to consider same-sex couples as potential foster parents. CSS was, however, prepared to accept into its foster care all children regardless of their sexual orientation. After prolonged negotiations with the city failed, CSS sued. It seeks, in the words of the Third Circuit, “an order requiring the city to renew their contractual relationship while permitting it to turn away same-sex couples who wish to be foster parents.” The Third Circuit upheld the position of the city.

Resolving this delicate confrontation requires a return to first principles. Let’s start with the First Amendment’s protection of the free exercise of religion, as elaborated in Justice Antonin Scalia’s majority opinion in Employment Division v. Smith. Alfred Leo Smith, a drug guidance counselor, was denied unemployment benefits after being terminated for consuming peyote, a controlled substance, as part of a religious rite. The court held that his religious beliefs do not “excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” The First Amendment did not require Oregon to accommodate Smith’s religious practice. Any neutral law of general applicability was acceptable, notwithstanding its disparate impact.

Notably, the word exercise is broad enough to cover not only Smith’s use of peyote but also CSS’s adoption policies. Accordingly, under no circumstances should Philadelphia be allowed to pass an ordinance that requires the Catholic Church to ordain women as priests, or to offer family aid services paid from its own funds to same-sex couples. The question in Fulton is whether CSS’s free exercise rights are forfeited when the city supplies public funds and matching services to CSS and the children it puts up for foster care.

Member Post

 

I am not an attorney. I don’t play one on TV, nor did I stay at a Holiday Inn last night. But I do pay some attention to election law. Experience in 35 congressional campaigns (House and Senate) over 25 years will focus the mind. I was even nominated by President Clinton to a GOP […]

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Join Jim and Greg as they cheer much lower death rates from COVID-19 compared to the early days of the pandemic. They also sound the alarm that Democrats plan to kill right to work laws nationwide and crush the gig economy if they take full control in Washington. And they marvel at how activist Democrats have decided that Sen. Dianne Feinstein isn’t far left enough to lead the party on the Senate Judiciary Committee.

On today’s episode of American Wonk, FREOPP’s Avik Roy talks with Ilya Shapiro, author of “Supreme Disorder,” a new book on the politics of the Supreme Court. They talk about Amy Coney Barrett and ask: what have conservatives gotten right and wrong in their quest to change how the Supreme Court thinks about the Constitution?

Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court

Ep. 262 – Senator Ted Cruz joins Whiskey Politics with Dave Sussman for a special in-depth, long-form discussion on the critical issues heading into Election 2020; SCOTUS, Spygate, did the Senator say the Election may be a ‘Bloodbath’ for Republicans? Senator Cruz also discusses his incredible new book One Vote Away detailing the most pivotal Supreme Court cases of our time, and will Ted Cruz accept a SCOTUS nomination from President Donald Trump?