Tag: SCOTUS

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.

Contributor Post Created with Sketch. Mismatch Theory: Why a Movie Should Be Made about Prof. Richard Sander (Part 3)

 

This post is the third in a series on Prof. Richard Sander and the reaction to his Mismatch theory. You can read Part 1, Part 2, and Part 4 of this series at the links.

51ba5ZH-x8L._SX308_BO1,204,203,200_As I noted in Part 2 of this series, a slew of pro-affirmative-action law scholars wrote critiques of Sander’s work on Mismatch, the theory that if students are less prepared for a particular level of instruction—which occurs almost by design with affirmative action—then, not only do they make worse grades than their peers, they actually learn less than they would have learned if they had attended a less challenging school. All of these critiques, I believe, realized that the first and second regularities that Sander documented were solid. None even attempted to show contradictory data that could overturn them.

Contributor Post Created with Sketch. Mismatch Theory: Why a Movie Should Be Made about Prof. Richard Sander (Part 2)

 

This post is the second in a series on Prof. Richard Sander and the reaction to his Mismatch theory. You can read Part 1, Part 3, and Part 4 of this series at the links.

51ba5ZH-x8L._SX308_BO1,204,203,200_As I noted in Part 1, Sander noticed an overlap with what economist Thomas Sowell called the “mismatch” effect. If students are less prepared for a particular level of instruction—which occurs almost by design with affirmative action—then, not only do they make worse grades than their peers, they actually learn less than they would have learned if they had attended a less challenging school.

Contributor Post Created with Sketch. Our Affirmative Action Mess

 

5946827025_3102160df9Last week, the Supreme Court heard oral arguments in the much-mooted case of Fisher v. University of Texas at Austin. At issue in the case was whether the University of Texas at Austin’s affirmative action program complied with the stringent legal test the Court set out in Grutter v. Bollinger (2003). Grutter held that the University of Michigan had a sufficiently “compelling state interest” in fostering a diverse student body that it could take race into account in the university admissions process, even if race-based decisions are widely unacceptable in other contexts.

In 2013, when the Supreme Court first considered UTA’s admissions program in Fisher v. University of Texas at Austin, it did not immediately deliver a judgment; rather, it ratcheted up the pressure on UTA by asking the school to come up with strong empirical support for its diversity plan. Little has been done since that time on remand, except to keep in place the admissions program now under attack. In the 2013 case, the Court imposed the strict scrutiny test on UTA, which generally requires an exacting review of the program to see if it falls within the narrow exception to the colorblind tests developed by the court in other cases.

The UTA program has two parts. The first part allows for 75 percent of an entering class at UTA to be composed of students who finish in the top-ten percent of their high-school class. The second part of the program allocates the other 25 percent of the slots to students on a “holistic basis,” in which race can be taken into account along with other non-academic factors.

Contributor Post Created with Sketch. Festival of Smugness

 

Antonin_Scalia_2010There are few more repugnant spectacles among the liberal elites of this country than the festivals of smugness that follow any comment by a conservative public figure that can be twisted into a racial slight.

This week it is Justice Antonin Scalia’s turn. In an oral argument over affirmative action, Scalia said:

There are those who contend that it does not benefit African-Americans to — to get them in the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a less — a slower track school where they do well.

Contributor Post Created with Sketch. Immigration Update: Cut Out the Middleman – Just Let Judges Just Write the Laws

 

A federal appeals court has upheld the lower court ruling blocking Obama’s work-permit amnesty for illegal aliens with U.S.-born kids. The ruling is just on circuit court Judge Hanen’s injunction which put Obama’s plans on ice, and not on the merits of the underlying lawsuit claiming that Obama has overstepped his constitutional authority. Nonetheless, the appeals court did say Obama had acted illegally. From Politico:

The 5th Circuit opinion actually goes further than Hanen’s, holding not just the administration took shortcuts with procedural rules, but that Obama and Secretary of Homeland Security Jeh Johnson lacked the legal authority for their actions. [Judge] Smith said the Immigration and Naturalization Act simply doesn’t confer the power the administration is claiming.

Contributor Post Created with Sketch. The Common Law in the Supreme Court

 

shutterstock_135889718Much of the Supreme Court’s work is devoted to interpreting statutes and regulations generated by the modern regulatory state. Increasingly, the common law tradition seems to be of little relevance to resolving the great disputes of our time. In my view, relegating common law principles to the back-bench constitutes a major source of confusion in the Supreme Court’s constitutional jurisprudence. The reason is that modern statutory law is heavily parasitic on the common law. A clear understanding of the uses and limits of common law principles is often the only way to see to the bottom of the well in many Supreme Court disputes.

The importance of common law is illustrated by Spokeo Inc. v. Robins, which was just argued before the Supreme Court. In Spokeo, the plaintiff sought to bring a class action suit on behalf of all individuals who had been injured by inaccurate reporting under the Fair Credit Reporting Act (FCRA), which attaches a fine between $100 and $1,000 for each offense. In the particular case, the plaintiff Thomas Robins had alleged that the defendant’s credit report had misstated the plaintiffs’ marital status, income, and educational levels in ways that made it more difficult for him to gain employment. The District Court held that the plaintiff did not have standing under Article III of the Constitution to maintain that claim on the ground that he did not allege that he had suffered “any actual or imminent harm” that could support the case. The Ninth Circuit found that such injury did exist, and the matter should be allowed to go forward. The Supreme Court took the case to address the following issue:

Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.

Contributor Post Created with Sketch. Supreme Court Cases to Watch This Month

 

shutterstock_104498510This first Monday in October raises several cases that might turn the Supreme Court 180 degrees from the last term. If 2014-15 was an unmitigated disaster for conservatives, with Court decisions overturning gay marriage bans in the states and upholding Obamacare’s tax subsidies, 2015-16 presents cases that may bring conservative victories.

These are the cases to watch — but maybe we can start taking bets here on how the cases will come out, which means predicting the all-important desires of Justice Anthony Kennedy, who will no doubt be the decisive fifth vote in all of them.

Fisher v. University of Texas at Austin: Can state universities use an applicant’s race in making admissions decisions? The Court narrowly split in upholding Michigan’s affirmative action plan a decade ago, and Justice O’Connor, who joined the liberals to uphold the use of race, has been replaced by Justice Alito.

Promoted from the Ricochet Member Feed by Editors Created with Sketch. The True Meaning of Marbury v. Madison

 

hqdefaultMichael Stokes Paulsen is one of America’s most prominent scholars of constitutional interpretation, and the co-author (with his son) of the recently-released, The Constitution: An Introduction. I just discovered his fascinating 2004 article, “The Irrepressible Myth of Marbury.” From the introduction:

Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago — 1803, if the storyteller is trying to be precise — in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of “judicial review.” Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional.

But, he argues, “nearly every feature of the myth is wrong.”

Promoted from the Ricochet Member Feed by Editors Created with Sketch. Will Another Alito Ever Be Confirmed?

 

Bush-Alito-051031After the Supreme Court’s latest term, a line has been drawn in the sand so clearly that even a RINO can see it without glasses.

The Obergefell decision is fairly fragile. Justice Kennedy might resign during the next president’s term, and a Republican president might appoint his replacement. But if the current balance of the court is in danger of being pushed rightward*, the Democrats will do anything to stop it. They will use the filibuster and leave the seat unoccupied, for years if necessary.

In this scenario, our best hope is that the GOP holds firm and refuses to accept another moderate like Kennedy. As long as Republicans has a majority in the Senate, they should use all available countermeasures against the filibuster, blocking bills and even holding payment of federal employees as ransom.

Member Post

 

My fellow traditionalists, you don’t get it. SCOTUS did not disregard the obvious authority of states to define marriage requirements. From the progressive perspective, the definition of marriage remains unchanged. From that perspective, what changed is that a wrongfully excluded class of people has been granted access to that which the states continue to define. Preview […]

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