Tag: SCOTUS

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Marco Rubio has lots of charisma and charm. He is really cute, if you like that sort of football player thing, and many people appreciate his earnest boyishness and sense of humor. Many people here at Ricochet are very disappointed in his showing in the primaries and his withdrawal from the race, having given much of […]

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Promoted from the Ricochet Member Feed by Editors Created with Sketch. What Republicans Should Have Said (But Won’t) About Obama’s SCOTUS Nomination

 

In politics, providing a reason for doing what you do is almost as important as doing the thing. Instead of the lame, inside-baseball “We just don’t confirm Supreme Court Justices in an election year” justification Republicans have offered, here’s how they should have clarified their opposition:

We cannot, and will not, confirm any justice to the Supreme Court whose vote would imperil important constitutional rights such as the right to bear arms and the right to freely practice and exercise religion.

Contributor Post Created with Sketch. Whole Woman’s Health in the Supreme Court: When Does Regulation Count as an Undue Burden?

 

In its first major argument since the untimely death of Justice Antonin Scalia, the newly constituted eight-member Supreme Court in Whole Woman’s Health v. Hellerstedt had a spirited session on whether the twin requirements of Texas Law H.B. 2 constituted an “undue burden” on a women’s constitutional right to have an abortion set out in 1992 Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. The first of these requirements was that any physician have admitting privileges at a hospital within 30 miles of where the abortion took place. The second, and more onerous, was that the abortion be performed in an Ambulatory Surgical Center (ASC) that is frequently reserved for procedures more dangerous than an abortion.

In the course of oral argument, there was no question that Justice Scalia’s voice was missed, but by the same token, there was no shortage of comments from the Justices who peppered the lawyers throughout the argument. Eight-member courts can function, at least to this extent. I have already written about the merits of this case, and nothing contained in the oral argument changed my views on the how it should be decided. If one could dial back the clock to 1973, I would never have held that the laws that made abortion illegal in every state of the union were unconstitutional in all of them, on grounds that it were unclear then and are still difficult to articulate today. But for these purposes, that decision is water over the dam, and the only question before the Supreme Court was whether the Texas requirements imposed an undue burden on the right of a woman to obtain that abortion.

Promoted from the Ricochet Member Feed by Editors Created with Sketch. Is this a Deal that Conservatives Should Make with Trump?

 

Trump_the_art_of_the_dealIn his press conference last night, Donald Trump was asked whether he could win the presidency without conservatives. After his obligatory “I’m a conservative” line, Trump basically said conservatives would stand to lose everything if they don’t support the Republican nominee.

Senator Ben Sasse and other Republicans have said they will not support Trump if he wins the nomination and others are considering a third-party or independent bid if it comes to that. If either of those happen, Trump is likely right: conservatives will lose anything.

What is the highest conservative priority, the one thing that would be more important for constitutional government than anything else? First, I’d suggest judicial nominations. Consider the appointment of Scalia’s successor, the likelihood that there will be more vacancies on the Supreme Court in the next few years, plus all the other appellate appointments the next president will make. A close second would be eliminating government unions and shrinking the administrative state. If conservatives could get control of judicial appointments or eliminate government unions, would it be worth making a deal with Trump?

Contributor Post Created with Sketch. The Quiet Justice and the Constitution

 

clarence-thomasAnyone who follows the actual work product of the Supreme Court knows that oral argument has no correlation to quality of legal reasoning or sharpness of thought. Focusing on whether Justice Thomas has or has not asked questions is a red herring.

What counts is not questions from the bench, but the written word of the opinions. For many decades, Justices rarely asked questions and oral arguments would often go long stretches without any questions. In fact, it was Justice Scalia’s arrival that spurred the no-holds-barred questions and answers that are a feature of today’s oral arguments.

But the appellate review of the Supreme Court does not serve the same function as trial courtrooms, where the lawyers and their antics dominate the proceedings. The Supreme Court focuses mostly on the written briefs of the lawyers, the text and history of the Constitution, and its own precedents. The lawyers contribute very little in oral argument to the Supreme Court’s deliberations.

Promoted from the Ricochet Member Feed by Editors Created with Sketch. Game Theory Time: SCOTUS Edition

 
1200px-Brian_Sandoval_at_Lomie_Heard_Elementary_School
Brian Sandoval, by U.S. Air Force Photo by Airman 1st Class Jason Couillard. Public Domain.

Apparently, Obama is thinking of nominating a Republican:

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Earlier today, I published what I believe to be an ironclad argument as to why I should be the next associate justice of the Supreme Court of the United States. The argument can be summarized thusly: 1. There are no real requirements for the Court, and so I am not disqualified. And I am, in […]

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Apparently, C-SPAN has bailed and will broadcast a taped version on Sunday evening. They would rather broadcast from the Nevada caucuses. EWTN is carrying the funeral live. Preview Open

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Promoted from the Ricochet Member Feed by Editors Created with Sketch. Why Obama Should Nominate Cruz for SCOTUS

 

supreme courtAs we were watching the CNN town hall, a friend of mine suggested, tongue-in-cheek, that Obama should nominate Ted Cruz. At first I laughed, and then I started thinking about it. This isn’t really that far-fetched an idea.

Obama already said he’d consider an elected official. Well, Cruz checks that box.

With a GOP Senate you gotta get someone in there who can get confirmed. Who better than Cruz? Senate Republicans will never have to worry about a guy they don’t like anymore because he’ll be out of their hair. Obama can present it as a deferential carrot to the GOP Congress in return for something else he may want or need.

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The funeral Mass for Justice Scalia will be celebrated by his son, Fr. Paul Scalia, on Saturday at 11 a.m. C-SPAN will broadcast the Mass, hopefully without any commentary. Preview Open

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Promoted from the Ricochet Member Feed by Editors Created with Sketch. Water Polo and the Judge

 

131007_DX_ScaliaIsMean.jpg.CROP.promo-mediumlargeThe whistles from both sides of the Olympic pool blew hard. The white clad referees each pointed to the defender in front of my son and held up the four fingers representing his number, and then pointed to the side. The player was done. Kicked out. The blood oozing from my sons nose was finally enough proof the other kid used his elbow too many times.

Not wanting to mollycoddle, but suitably concerned, I remained standing in my position, clapping and cheering him on as the teams went back to their respective corners. The coach checked on my son. This wasn’t just any game; they were deep into a qualifying tournament, just a feat to be there at all, which if they medaled would provide an invite to the Junior Olympics.

For the past few minutes the phone was furiously buzzing in my back pocket. It was Saturday afternoon. No business today, I thought, and left alone whatever was going on in the outside world.

Contributor Post Created with Sketch. How Republicans Can Win the Supreme Court Media Battle

 

SCOTUS“The only winning move is not to play.” — Joshua, War Games, 1983

The passing of Supreme Court Justice Antonin Scalia has changed the 2016 political landscape. There is bipartisan consensus on that point, and that point alone. What remains uncertain is how this will play out. But there is only one clear path for Republican candidates and senators: Starve the media of this story.

This much we know:

Contributor Post Created with Sketch. Antonin Scalia, a Most Memorable Friend

 

scalia0001The sudden death of Justice Antonin Scalia has elicited many tributes about his achievements. It has also sparked extensive reviews of his judicial body of work—and raised some questions about how filling his spot will affect the 2016 presidential election and the future direction of the Supreme Court. Like many others, I shall have more to say about these weighty issues going forward. But for now, I’d like to write about some of my personal interactions with Justice Scalia prior to his appointment to the Court in 1986.

Scalia graduated in the exceptional Harvard Law School class of 1960 along with the late David Currie, for many years my colleague at University of Chicago Law School. Currie helped arrange for Scalia to interview for a potential faculty position at the University of Chicago in early 1977. By that point, the election of Jimmy Carter as President had ended Scalia’s term as head of the Department of Justice’s Office of Legal Counsel, to which Gerald Ford had appointed him in August 1974.

When Scalia appeared for his Chicago job talk, he cut a large figure. The topic of the session was executive privilege vis-à-vis the Congress, an issue on which Scalia had sparred with Congress repeatedly as head of OLC. For Scalia, there was no middle ground on this question. He was a passionate and articulate defender of executive privilege, and noted, correctly in my view, that this was an issue that was not defined by party, but by role. Repeatedly, he stressed that every president of both parties had taken this view, which he thought that the constitutional system of separation of powers required.

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I confess I am pleasantly surprised at the strong stand GOP senators are making against confirming any Obama appointment to replace Justice Scalia. Perhaps after all the sturm und drang of the Harriet Meyers nomination, GOP officials finally are getting trained to behave like actual conservatives regarding court appointments. If so, it raises again the […]

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Promoted from the Ricochet Member Feed by Editors Created with Sketch. This Is a Test

 

shutterstock_95619505Were Justice Scalia to have died earlier, our case for having the next president select the his replacement would have been much more difficult; the longer the seat remains vacant, the more time the Left has to use its influence and muscle to pressure the Senate to do its bidding. But were he to have died later, our case would have been strengthened; the shorter the length of the vacancy, the more plausible our arguments in favor of waiting would appear to the general public.

Regardless, he was taken from us when he was taken. We have a winnable fight on our hands, but it will still be a fight. The obstacles in our path are formidable, but not insurmountable. With conviction, shrewdness, and fortitude, we can win this battle; without them, the last fragile barrier shielding us from despotism may well disintegrate before us.

Thus, I can’t help but suspect that the Almighty called His servant home when He did to see if we have the strength and conviction to preserve what remains of our republic. For our leaders in Washington who always seem content to postpone the battle until some magical future day, the fight is now and we must fight hard now.

Contributor Post Created with Sketch. Member Post

 

The interwebbies are burning up today, speculating about President Obama’s next move in light of the death of Mr. Justice Scalia. Will there be a nomination? Will there be a recess appointment? The president does have the right to nominate anyone he pleases. And the Chairman of the Senate Judiciary Committee, Chuck Grassley, can slow […]

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I have a few observations on the impact of the death of Justice Scalia. I welcome your comments on them. I am saddened that I was correct in predicting that the Left would engage in a vengeful grave dancing orgy over Justice Scalia’s death. Whether they realize it or not, their reaction is a stain […]

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Contributor Post Created with Sketch. Supreme Court Puts the Clean Power Plan on Hold

 

clean-power-planOn February 8, the United States Supreme Court issued a terse order that by a five-to-four vote enjoined the Environmental Protection Agency from taking any steps to implement its Clean Power Plan. That most ambitious plan sought to impose a comprehensive long-term set of limitations on the use of coal, and indeed all energy sources, inside the United States. The order itself was a black box, which in its entirety reads:

West Virginia, et al. v EPA, et al.

The application for a stay submitted to The Chief Justice and by him referred to the Court is granted. The Environmental Protection Agency’s “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” 80 Fed. Reg. 64,662 (October 23, 2015), is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the District of Columbia Circuit and disposition of the applicants’ petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.

Contributor Post Created with Sketch. An Age Limit for Supreme Court Justices?

 

GinsburgNoted Supreme Court scholar David Garrow argues that the Supreme Court, and Chief Justice John Roberts specifically, should take action to address the increasing age of judges. He raises an important problem: the Supreme Court should not be a comfortable retirement home. Garrow proposes that judges undergo mental health checkups and that new judges agree to a retirement age.

But I do not think there is any way that a law could do constitutionally. The Constitution does not permit removal of a judge from office except in limited circumstances, and only through the process of impeachment. Article III, Section 1 of the Constitution states that “the judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.”

While the Constitution does not define “good behavior,” our historical practice has. Judges who have committed violations of federal criminal law, such as Judge Walter Nixon, can be impeached. During the Jefferson administration, Congress impeached and removed a judge who was apparently a drunkard on the bench (and this before the day of the breathalyzer). But Jefferson’s effort to impeach Justice Samuel Chase, on the claim that he was injudicious in his behavior (but was really a not-so-veiled effort to remove a Federalist from the bench), failed to win conviction in the Senate. I believe that age alone could not be grounds for impeachment and removal, and perhaps not even mental illness, unless it truly incapacitated a judge from the job.