Jim Geraghty of National Review and Greg Corombos of Radio America head into Independence Day with four good martinis. They look at a survey showing the majority of Americans support a Senate vote on President Donald Trump’s Supreme Court nominee before the midterm election. They also support German Chancellor Angela Merkel’s decision to reverse the country’s open-borders immigration policy due to mounting political pressure. They analyze reports showing an Iranian diplomat was involved in a plot to attack a conference of Iranian resistance groups in Paris. And they welcome Brian Ross’ departure from ABC News following his false report that Trump ordered Michael Flynn to speak with Russians before the 2016 presidential election.

All Things Being Equal: Amy Coney Barrett for SCOTUS


“This year will be remembered as an especially auspicious time for the Supreme Court. President Trump is in a position to pick the next Justice from a list of extremely qualified jurists.” So says Leonard Leo, who was a key person putting together the list for President Trump. In an interview, he made clear his requirements and expectations:

What is important is that we have a judiciary occupied by individuals who understand … they have a duty and a moral obligation to enforce the structural Constitution. They have a duty to make sure that limits on government power are respected and enforced, and when they carry out that duty or obligation, they are in a myriad of ways preserving the worth and dignity of every human person. Because if you have a system where government can do anything, if you have a system where rights that aren’t in the Constitution can be created and things that are in it can be ignored, no one is safe.

The people on the qualifications list meet those requirements at a minimum. In fact, they are so well-qualified that many people are making their recommendations for Trump’s pick to separate the golden wheat from the less golden chaff. There is one person who has a unique combination of qualifications that no one else has, and that is Amy Coney Barrett.

Supreme Court Ruling Correct on Trump Travel Ban


In Trump v. Hawaii, the 5-4 majority reached the right result in upholding the Trump administration’s use of delegated power under the immigration laws to ban the immigration of aliens from countries deemed threats to the national security. That Congress had granted the President ample power was a conclusion easy to reach, despite the claims of liberals who generally love such broad transfers of power to the administrative state when the subject is environmental protection or market regulation.

But the most important part of the opinion, and its critical implication for the future of the Trump administration (and indeed, all future administrations), was its rejection of the claim that Trump had violated the Constitution because of his personal bias against Muslims. I had raised doubts about this problem in earlier versions of the travel ban, which had applied only to Muslim countries and had granted an exception for Christians. But more professional hands updated the travel ban, and it now reflects no unconstitutional religious or ethnic bias on its face.

Nevertheless, Trump opponents (which, it has to be said, included the lower federal courts in Hawaii and California) claimed that the President’s personal state of mind was a) subject to judicial inquiry; and b) could be deduced from his statements, tweets, and the like from both before and after the 2016 election. But the Court correctly states that if the order is facially legal and can be justified on any legitimate national security basis, the federal judiciary should not block it. “Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy.”

Jim Geraghty of National Review and Greg Corombus of Radio America celebrate the Supreme Court upholding the Constitution in two separate cases. They agree with the court’s conclusion that President Trump’s travel ban is within his constitutional and statutory right. They are also glad to see the Court side with free speech in striking down a California law that required crisis pregnancy centers to advertise abortion services. They are also pleasantly surprised that Democratic leaders are condemning Maxine Waters’ calls for the harassment of Trump administration officials.

Getting It Wrong on Cell Phone Searches


The Supreme Court last week added another layer of confusion to the vexed law of unreasonable searches and seizures regarding law-enforcement use of cell phone data to ferret out criminal activity. In Carpenter v. United States, Chief Justice John Roberts, speaking for a five-member majority (including the four liberal justices—Ginsburg, Breyer, Kagan, and Sotomayor), ruled that information collected on Timothy Carpenter’s whereabouts, pursuant to the Stored Communications Act (SCA), was inadmissible. The SCA allows law enforcement to access certain telephone company records under a court order when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” Notwithstanding the SCA, police can now access historical cell-site location information (CSLI) only if they first obtain a warrant by meeting the higher standard of probable cause under the Fourth Amendment.

Carpenter is incorrect.

The facts of the case are as follows: In 2011, the police arrested four men suspected of robbing a Radio Shack and T-Mobile store in and around Detroit. These suspects confessed that they had participated in a number of local robberies, and gave the police the cell phone numbers of some of their other confederates, including Carpenter. Pursuant to the SCA, the police then obtained two orders from Federal Magistrate Judges commanding the men’s cell phone carrier, Metro PCS, to supply CSLI data, which is generated routinely and accurately in order to maintain and operate the networks efficiently. The police obtained about 130 days of data, which placed Carpenter near the sites of each robbery at the time of occurrence. This information helped secure Carpenter’s conviction.

Roberts Court Upholds Free Speech at the Polls. For Now.


Minnesotan Andy Cilek wasn’t allowed to vote while wearing a t-shirt that read “Don’t tread on me.”

Last week’s Supreme Court decision striking down a Minnesota law against wearing “political” T-shirts in the polling place might seem a matter of common sense. But that may just be the problem with it. While Chief Justice John Roberts’s ruling is certainly correct, it leaves many questions unanswered — something that, unfortunately, can be said about a lot of his decisions.

Jim Geraghty of National Review and Greg Corombos of Radio America praise the Supreme Court’s decision to uphold an Ohio law that cuts inactive voters from the rolls if they haven’t voted in the past six years or asked the state to keep them on.  They also blast a self-described intersectional, Muslim feminist, who is seeking the Democratic nomination for Keith Ellison’s Minnesota congressional seat, over her ugly tweet about Israel.  And they unload on the New York Times for their sudden embrace of Mitt Romney.

Jim Geraghty of National Review and Greg Corombos of Radio America cheer the Supreme Court’s ruling in favor of a Christian baker who was sued for not customizing a wedding cake for a same-sex ceremony but note the ruling focused on this particular case rather than broader issues of conscience and religious liberty.  They also cringe as Bill Clinton still sees himself as the victim in the Monica Lewinsky scandal and scolds an NBC reporter for even bringing it up.  And they’re incredulous as President Trump boldly announces he has the power to pardon himself and Trump’s attorney, Rudy Giuliani, contends Trump could not even be indicted for killing former FBI Director James Comey while still in office.

Interviewing Instapundit on the ‘Judiciary’s Class War’


Glenn Harlan Reynolds, aka Instapundit, routinely puts forth novel and compelling arguments.

I wanted to call your attention to his latest, as described in a provocative new Encounter Books broadside titled The Judiciary’s Class War, regarding what I would describe as the Supreme Court’s cultural and too frequently ideological progressivism.

In his broadside, Reynolds focuses in large part on the notion of a Front Row/Back Row bifurcation in our society, which is reflected in the makeup of the courts, writing:

Reasonable Searches in the Digital Age


This past week, the United States Supreme Court heard oral argument in Carpenter v. United States, a case that goes to the heart of the government’s power to track private individual behavior without a warrant. Timothy Carpenter and his henchmen had engaged in a series of armed robberies in Michigan and Ohio that led to his conviction for up to 116 years in prison. In his opinion, Judge Raymond Kethledge of the Sixth Circuit correctly observed that the Fourth Amendment’s protection against unreasonable searches and seizures “has long recognized a distinction between the content of a communication and the information necessary to convey it. Content, per this distinction, is protected under the Fourth Amendment, but routing information is not.”

Accordingly, Kethledge let the government introduce into evidence the business records from the defendants’ wireless carriers that placed the defendants at or near the scene of several violent robberies. Alone, that evidence could never support a conviction for armed robbery, but its value lies in contravening the defendants’ alibi that they were elsewhere at the time.

Kethledge’s analysis received a rocky reception at the Supreme Court, as both liberal and conservative’s fretted about the invasions of privacy from such extended surveillance. A puzzled Justice Stephen Breyer professed astonishment by observing: “This is an open box. We know not where to go.” In contrast, Justice Elena Kagan had a more pointed objection. She noted that in United States v. Jones (2012), the Court reversed a conviction for narcotics trafficking because the government had conducted an illegal search by attaching a GPS tracking device to the defendant’s wife’s car without a warrant. According to the majority in that case, attaching the GPS amounted to a common law trespass, which Justice Antonin Scalia held justified suppressing that evidence. To Kagan, the government had to explain how using phone company records differed from using the GPS system, when both give exhaustive and accurate information about the defendant’s whereabouts.

Public Unions May Get Their Due


Mark Janus, who works for the state government in Illinois sued AFSCME, saying he does not agree with its positions and should not be forced to pay fees to support its work..

Public employee unions may have fleeced taxpayers one time too many. Two court cases involving Illinois residents resisting forced union fees and representation may give the US Supreme Court the opportunity to restore employee and taxpayer freedoms.

Scalia’s Legacy


I knew the late Justice Antonin Scalia a little, and like millions of others, I was an avid fan of his jurisprudence, the great bulk of which he produced after I was no longer a law student, so much the worse for me.

What do I have to do with it? Nothing, except that reading opinions as a law student was often like trying to swallow great bowls of sawdust – without milk. Very few judges can write well. On the rare occasions when I came across a decision by Learned Hand, I would practically weep with gratitude for his clear, forceful prose.

Antonin Scalia was not just a great stylist for a jurist, he was a great writer for a writer. Most of his work though, obviously, was in the form of opinions and dissents, and even the best Supreme Court opinions are required to include copious citations in the text, which, for the general reader, can be distracting speed bumps. That’s one of the many reasons to rejoice at a new collection of Scalia’s speeches.

Gerrymandering at SCOTUS


The Supreme Court has just heard oral argument in the highly anticipated case of Gill v. Whitford on the constitutionality of political gerrymandering. At issue is Wisconsin’s Act 43, a state redistricting plan enacted by a Republican legislature in 2011, which allowed the GOP to capture both houses of the state legislature in the 2012 and 2014 elections by turning a Republican vote of under 50 percent into a near 60 percent majority in legislative seats. But the act was then successfully challenged in federal district court before Wisconsin appealed to the Supreme Court.

In the case, the GOP relied on the familiar technique of partisan gerrymandering, long used by both parties, to fashion districts that force the opposition to “waste” its votes. The opposition racks up huge majorities in a small number of districts, enabling the controlling party to gain a larger number of seats by smaller majorities. One measure of the effectiveness of this technique is the much debated “efficiency gap.” As the challengers explain in their brief, that is “calculated by taking one party’s total wasted votes in an election, subtracting the other party’s total wasted votes, and dividing by the total number of votes cast.” The greater the gap, the greater the imbalance of wasted votes between parties—and the more likely that the gerrymandering will give the controlling party influence greater than its share of the statewide popular vote.

The Justices agreed in oral argument that this bipartisan practice is deeply unsavory. But then disagreement quickly set in about whether any possible cure would be worse than the disease itself, as Wisconsin stoutly insisted in its brief that decried the want of predictable remedial standards. Let a challenge succeed in one state, and similar challenges will be raised everywhere. Given the interdependence of district boundaries, changing one district could necessitate redrawing a state’s entire map.

The Supreme Court’s Playground Scrape


A recent Supreme Court decision sheds light on an important tension in the religious clauses of the First Amendment of the Constitution. In Trinity Lutheran Church v. Comer, a church’s application for a grant from the Missouri Department of Natural Resources (DNR) to resurface its playground with poured rubber made from recycled tires was turned down solely because of the church’s status as a religious institution. The Missouri DNR held that it was bound by this provision of the Missouri Constitution:

That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.

The provision is one of the Blaine Amendments that was widely adopted by states in the late nineteenth century on a strong tide of anti-Catholic sentiment. The amendments, adopted in 38 states, prohibit the distribution of public funds to religious educational institutions. In this case, the Court had to decide how the Missouri program and its constitutional amendment fared under the Establishment Clause and Free Exercise Clause of the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Today, both clauses bind the states as well as the federal government.

Wanna Bet? The Supremes Say… “Maybe.”


Six years ago, faced with a gaping hole in the state budget, New Jersey Governor Chris Christie decided the way to fill the coffers was to offer legalized sports betting. All four major professional sports leagues and the NCAA immediately objected and sued to stop it. Their hammer was the Professional and Amateur Sports Protection Act – or PASPA.

PASPA was the brainchild of Bill Bradley, the three-term Senator from the Garden State. It sought to stem the spread of sports betting after three states added sports games to their lotteries to accompany the already legal sports books found in Nevada. Bradley, who is a Basketball Hall of Famer, understood that the only thing that separates professional sports from professional wrestling and roller derby is the idea that the games are on the up-and-up. When the law was passed in 1992 we were just three years removed from Pete Rose’s lifetime banishment from baseball and mere months from Michael Jordan’s first retirement from the NBA.

Supreme Court Rules for Fair Play in Trinity Lutheran Religious Freedom Case


In a case decided today at the United States Supreme Court, a church-run Missouri preschool asked a simple question: should religious groups have the same opportunity as secular groups to participate in generally-available public benefits?

The 7-2 decision in Trinity Lutheran Church of Columbia v. Comer today, authored by Chief Justice John Roberts, said that the state may not target religious groups for inequitable treatment on the basis of religion when it comes to public program participation.

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It’s possible to be too square. Never taking a sip of alcohol? Never taking a puff of a cigarette? Never putting a dollar in a nickel slot? Therefore it shouldn’t be surprising that although a principled conservative, I don’t have much patience for the Never-Trump movement. The American Founders set an excellent example by rarely invoking absolutes […]

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Welcome to the Harvard Lunch Club Political Podcast for June 20, 2017, it’s the Redskins and White Vans edition of the show with your hosts Todd Feinburg and Mike Stopa.

Our topics this week include the breaking news of today’s “terrorist attack” (note the scare quotes) in London at the Finsbury Park mosque. A white dude – quickly identified as such – in a white van ran onto the sidewalk and over some not very white Muslims as they were leaving their Ramadan prayer service. Does this qualify as a terrorist attack? Do ISIS-inspired attacks qualify as terrorist attacks? Mike thinks that they do not! Todd disagrees.

A Bit of Good News from SCOTUS: Matal v. Tam


I fear it will pass with little notice, but this morning the Supreme Court issued an opinion in Matal v. Tam that should cheer us all.

We live in a world where congress critters of the blue persuasion have proposed amending the First Amendment to permit government “regulation” (read: suppression) of political speech and where the campuses of universities supposedly dedicated to free inquiry have become “speak at your own risk” zones patrolled by baseball bat wielding snowflakes. But in the Supreme Court of the United States, the right to speak is still respected and regarded as central and fundamental to the functioning of our democratic polity and our public debates.

Very briefly, Tam is a case brought by a rock band that calls itself “The Slants.” The band members are Asian-American and the band name is an ironic co-option of a racial slur, not unlike the use of the “N word” by African-Americans or the “F word” by gay men. By claiming it as our own, we defang it, or so we gays tell each other about the F word. That appears to be what The Slants are seeking with their band name.