Tag: Supreme Court

What is John Roberts Up To?


Chief Justice John Roberts of the U.S. Supreme Court in 2005.Yesterday, a Washington Post review of Uncertain Justice: The Roberts Court and the Constitutionby Harvard Law professor Lawrence Tribe and his former student Joshua Matz, ended with this observation:

[T]here is one place where Tribe and Matz find real clarity [in the current Court]: the shrinking availability of judicial relief. “One of the defining features of the Roberts Court,” they write, is “its willingness to leave plaintiffs and criminal defendants to whatever justice they can find beyond its doors.”

Setting aside the liberal morality play rhetoric, a number of commentators agree that the Court has been passing on cases that it once would have taken — and not just on Tribe and Matz’s chew toys. For example, some conservatives lament that the current Court has declined to hear one Second Amendment case after another, leaving conflict and confusion in judicial ranks. Then again, business interests are confused that this year the justices declined to hear a class action certification case that seemed to scream out for high court attention. There was intense conflict among the circuits. The judges who authored the appealed decisions seemed, in their written opinions, to be thumbing their noses at very recent high court precedents. What is going on here?

The Libertarian Podcast: The Second Amendment and Mass Shootings


shutterstock_124466629In the wake of last week’s shooting rampage by Elliot Rodger in California, there’s been a predictable firestorm over the Second Amendment and whether America makes it too easy to access guns. In this episode of the Libertarian podcast from the Hoover Institution, Professor Epstein addresses some of those issues: Was the Second Amendment meant to protect individual rights or collective ones? Has the Supreme Court’s recent jurisprudence on the issue gotten us closer to, or further away from, the original meaning? And, even if the critics have their way, do the kind of gun control regulations we most frequently hear proposed have any real prospect of curbing violence like what we saw last week? Listen to hear Richard’s take.


Responding to Classical Liberalism’s Critics


shutterstock_164117816As has been noted here at Ricochet, my former University of Chicago colleague, Cass Sunstein, recently authored a review of my new book, The Classical Liberal Constitution: the Uncertain Quest for Limited Government, in the pages of The New Republic. The review itself is thoughtful, though you’d never know that from the titles chosen by the editors of The New Republic. The print version is headlined “Tea Party Constitutionalism: The Unexamined Dogmas of the Libertarian Right.” Online, it’s even worse: “The Man Who Made Libertarians Wrong About the Constitution: How Richard Epstein’s highly influential, highly politicized scholarship cemented Tea Party dogma.”

The magazine’s hysterics aside, Professor Sunstein’s criticisms still fall short in my view. As I note in my column this week for Defining Ideas at the Hoover Institution:

Sunstein’s review never challenges any of the particular places where I claim that the classical liberal approach is superior to its progressive alternative, as both theories relate to government structure or individual rights. Instead, Sunstein notes that many contemporary thinkers have rejected my basic constitutional orientation. He even invokes the authority of Oliver Wendell Holmes, Jr. to push for popular democracy: “If my fellow citizens want to go to Hell I will help them. It’s my job.” After expressing some sympathy with some of my (unidentified) positions, he concludes emphatically that “a judicially engineered constitutional revolution is not what America needs now.”

Should Police Get a Warrant Before They Search a Cell Phone?


shutterstock_188124092My latest contribution over at PJ Media concerns two cases now before the U.S. Supreme Court. Both cases, Riley v. California and United States v. Wurie, involve warrantless searches by police on cell phones seized from people who had been arrested. Current case law allows officers to examine the property of people they have arrested, which sometimes leads to the discovery of incriminating evidence. Such was the fate of Mssrs. Riley and Wurie.  The former had his conviction upheld through appeal while the latter’s was overturned, setting the stage for the Supreme Court to resolve the conflict.

But how should the police deal with the cell phone found on an arrestee? Should  cell phones, owing to the vast amount of personal information often stored on them, be accorded more protection than a wallet, a notebook, or anything else a person might carry? If you think it should be, what legal precedent would you apply? And if there is no established precedent, should it be left to judges to create one, or should it be left to the legislative process?

Read the column here, then come back and weigh in with your comments.

Misguided Priorities on First Amendment Fights


Yesterday, in Town of Greece v. Galloway, a 5-4 majority of the Supreme Court upheld ceremonial prayers at the start of a town’s board meetings, as noted in Adam’s earlier post. Two thoughts occurred to me while reading the decision.  

First, I continue to be impressed at how much effort both sides put into fighting over simple, symbolic signs of religion that do not come remotely close to running afoul of the Establishment Clause. It is hard to believe that the Town of Greece — or any of the many cities and states that have been sued over similar religious symbolism — is trying to found a mandatory state religion of the kind commonly seen in Europe.  

SCOTUS Decision on Legislative Prayer Doesn’t Go Far Enough—Adam Freedman


Yesterday was a good day for religious liberty at the Supreme Court, where five justices beat back an attempt to declare prayers at town meetings unconstitutional. It could have been a great day, however, if only the Court had accepted Justice Thomas’ invitation to declare the Establishment Clause completely inapplicable to state and local governments. But I’ll get to that in a minute.

The decision in Town of Greece v Galloway  involved a small city in upstate New York (Greece) in which town board meetings open with a roll call, a recitation of the Pledge of Allegiance, and – brace yourself – a prayer given by a rotating selection of local clergymen. Two town residents sued, arguing that the predominately Christian nature of the prayers (reflecting the composition of the local clergy) violated the First Amendment’s Establishment Clause. The Court’s liberal bloc (Breyer, Ginsburg, Sotomayor, and Kagan) would have banned the town’s prayer tradition, relying on a dominant theory in many earlier cases that the First Amendment prohibits any government action that might appear to “endorse” religion. 

The Libertarian Podcast: Cell Phones, Privacy, and the Fourth Amendment


On this week’s installment of The Libertarian podcast for the Hoover Institution, Richard leads us through a conversation about the two cases heard by the Supreme Court yesterday on whether police can search a cell phone without a warrant in the course of an arrest. Just how far should the Fourth Amendment’s protections extend? What’s the right balance between law enforcement’s interest in providing security and the individual right to privacy? Professor Epstein is characteristically insightful in answering these and other questions.

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Distinguishing Between Law and Politics on Affirmative Action


In my latest weekly column for Defining Ideas at the Hoover Institution, I look at last week’s Supreme Court ruling in the Michigan affirmative action case, Schuette v. BAMN. My view: that the legal considerations and the policy considerations raise very different issues. As I write:

As a constitutional matter, I think that Justice Kennedy made the right call [to uphold the voter-approved ban on affirmative action]. It is too much to say that the Equal Protection Clause instructs states on how to organize their internal governance structures. The questions of electoral motive really have to be put to one side, lest every electoral decision be subject to scrutiny for some hidden electoral bias. The decisions made at one time have to be reversible at some later time, by whatever means the state chooses to do so, including the referendum.

Half a Win on Supreme Court’s Affirmative Action Ruling — John Yoo


Most conservatives were probably happy with the news of yesterday’s Supreme Court decision in Schuette v. BAMN, which upheld Michigan’s state constitutional ban on affirmative action. The plurality opinion, however, should curb their enthusiasm.

Written by Justice Anthony Kennedy and joined by Chief Justice Roberts and Justice Alito, the plurality treated the case not as one about a color-blind Constitution, but as a political process issue. They essentially reduced the question to whether Michigan was within its rights to enact the ban through a ballot initiative. They found that it was — but suggested that a state could also legitimately use the exact same process to reach the opposite outcome.

The Libertarian Podcast: The Supreme Court and Campaign Finance — Troy Senik


In this week’s installment of the Libertarian podcast from the Hoover Institution, Richard discusses the Supreme Court’s decision last week in McCutcheon v. FEC; what level of campaign finance restrictions — if any — the government should impose; and why the recent Brendan Eich controversy should lead us to rethink transparency requirements for political donors.

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Justice Breyer’s Campaign Finance Mistake


In my latest weekly column for Defining Ideas at the Hoover Institution, I examine the Supreme Court’s decision last week in McCutcheon v. FEC, overturning the aggregate limits that donors can give to political candidates in any given election cycle. As I’ve noted in the past, I generally have a strong aversion to the McCain-Feingold law, which, in my judgment, only aggravates distortions in the political market.

As I note in the piece:

SCOTUS Campaign Finance Ruling: Right Outcome, Wrong Reasoning


Yesterday, the Supreme Court occasioned much gnashing of liberal teeth by striking down one more piece of the federal campaign finance laws. At issue was the fact that, while the law limited an individual’s contributions to any candidate to $2,600 per election, it also sets a ceiling of $48,600 in cumulative giving to candidates.


Supreme Court Should Avoid Overhaul of Patent Protections


In the newest installment of my column for the Hoover Institution’s Defining Ideas, I look at Alice Corporation vs. CLS Bank International, a case that went before the Supreme Court for oral argument yesterday.

The case turns on the question of whether a computing method used in electronic funds transfers is patentable, a query ripe for a clear answer, given that a 10-judge panel on the Federal Circuit produced seven different opinions on the matter. Critics such as Professor Robin Feldman and the New York Times editorial board have argued that the practice is too abstract to deserve intellectual property protection. I have a different take, as I note in the piece:

The Libertarian Podcast: Hobby Lobby, ObamaCare, and Religious Liberty


On this week’s installment of The Libertarian Podcast, I lead Professor Epstein through a discussion of the challenges to Obamacare’s contraception mandate currently before the Supreme Court. Is the right to religious liberty different (or non-existent) for corporations as opposed to individuals? Would allowing non-participation in the mandate create a slippery slope towards opt-out government? Is the Obama Administration’s case actually weakened by the fact that it’s already granted exemptions to explicitly religious organizations? Those are just a few of the questions Richard answers in this week’s episode

Crowd Control or Message Control?


Over at SCOTUSblog, there is an interesting analysis of a case that will be argued before the Supreme Court on Wednesday.  The case, Wood v. Moss, stems from a 2004 incident in Jacksonville, Oregon, where President George W. Bush was campaigning for reelection. When President Bush deviated from plans and chose to dine in the outdoor patio area of a hotel restaurant, Secret Service agents and local police had to improvise so as to maintain a secure perimeter around him. 

Can California Make Laws For the Rest of the Nation?


That’s the question I examine in the newest installment of my column for Hoover’s Defining Ideas. California has recently enacted a series of carbon regulations so sweeping that they have the practical effect of regulating behavior throughout the nation. As I note in the column, it is, in my judgment, time for this issue to be heard by the Supreme Court.

The reason this case is so important is that California’s regulations essentially usurp the powers of the federal legislative branch. As I argue: