Tag: Supreme Court

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.

Breaking: SCOTUS to Hear Immigration Case


shutterstock_216196921From the NYT:

Fourteen months ago, Mr. Obama ordered the creation of a program intended to allow as many as five million illegal immigrants who are the parents of citizens or of lawful permanent residents to apply for a program sparing them from deportation and providing them work permits. The program was called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. The president has said the program was the result of years of frustration with Republicans in Congress who had repeatedly refused to support bipartisan Senate legislation to update immigration laws. In an Oval Office address just before Thanksgiving in 2014, Mr. Obama excoriated Republicans for refusing to cooperate and told millions of illegal immigrants, “You can come out of the shadows.”

But the president’s promise has gone unfulfilled. A coalition of 26 states, led by the attorney general in Texas, a Republican, quickly filed a lawsuit accusing the president of ignoring federal procedures for changing rules and of abusing the power of his office by sidestepping Congress. In February, Judge Andrew S. Hanen of Federal District Court in Brownsville, Tex., entered a preliminary injunction shutting down the program while the legal case proceeded. The government appealed, and on Nov. 9 a divided three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, affirmed the injunction.

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I’m a college professor in a school with a unionized faculty, in a non-right-to-work state.  So the union thugs get to seize a few hundred dollars from my salary, but according to a 1976 Supreme Court case, they can’t make me pay the costs of their “political” activities.  Still, the old case says I have […]

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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.

Distortion in Service of Progressivism Is No Vice


640px-Antonin_Scalia_2010It’s as fascinating as it is frustrating to watch the media spin a story to suit its preferred narrative. For this week’s example, look no further than the controversy surrounding oral arguments in Fisher v. University of Texas, the latest affirmative action case to reach the Supreme Court of the United States.

An MSNBC reporter named Irin Carmon — who also co-authored a laudatory biography of Justice Ruth Bader Ginsburg entitled The Notorious RBG — seized on a question raised by Justice Antonin Scalia during oral arguments. The question dealt with the assertion (raised by one of the briefs) that promising students from poor or minority schools would generally be better served by attending good-but-non-prestigious colleges than elite schools through affirmative action. In other words, these students face a more daunting adjustment than either they or the colleges realize, which unnecessarily dooms them to failure at prestigious schools when they would likely have prospered at other schools. There has been legitimate research into this idea that dates back over a decade.

That context was absent from a tweet Carmon sent out, and the response via social media has been sadly predictable:

Do Women Deserve the Highest Standards of Medical Care? Not If You Ask Planned Parenthood.


plannedparenthood139“At Planned Parenthood, we work every day to make sure women receive the high quality health care they need in a safe, respectful environment — including abortion care. Ensuring the health and safety of our patients is central to our mission and fundamental to every person who works at Planned Parenthood.”

So said one Planned Parenthood executive in a cut-and-paste comment last year, the kind you’ll see – nearly or perfectly verbatim – from the abortion giant’s various affiliates across the country. Indeed, another affiliate (after parroting the exact quote above) boasts of its “rigorous medical standards and guidelines” and “rigorous standards and training for staff as well as emergency plans in place, because women’s safety is our first priority.”

Admirable aspirations, signifying a commitment to patient care that transcends all other concerns and animates the very soul of the organization, right? Hardly. This is Planned Parenthood. And the mask slips again.

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.

The Libertarian Podcast, with Richard Epstein: “One Man, One Vote”


For more than 50 years, redistricting exercises have been guided by the principle of “One Man, One Vote,” the notion that legislative districts must be roughly equal in population. Now, however, the Supreme Court is being called upon to clarify that standard. Is it an equal population of residents? An equal population of eligible voters? Should non-citizens or children count? Are some voters having their influence inappropriately diluted relative to people in districts with high levels of ineligible voters? We tackle the history of this controversy and the newest developments in this week’s edition of The Libertarian, which you can listen to below or by subscribing to the show via iTunes.

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.

The Libertarian Podcast, with Richard Epstein: “The Uses and Abuses of the Clean Water Act”


I know what you’re thinking: “I’ve just read this terrific Richard Epstein post on the Clean Water Act (see below), but where I can get some sweet Epstein environmental protection podcast action?” Well, friends, look no further. In this episode of The Libertarian podcast we endeavor to give a layman’s explanation of the Clean Water Act and explain how a well-intended law has obstructed genuine environmental protection while snagging innocent landowners in a needless regulatory morass. Listen in below or subscribe to The Libertarian podcast via iTunes so that you never miss an episode.

When Environmental Protection Laws Enable Pollution


shutterstock_258860813Shortly after my piece “Filtering the Clean Water Act” went up at Hoover’s Defining Ideas, I got an email from Eric Wolinsky, who asked this question:

Lake Champlain has a significant pollution problem caused in large part by runoff from agricultural fields. The current rules require a buffer between crop land and ‘waterways.’ The problem is that there are no required buffers between cropland and ditches that don’t meet the definition of ‘waterways.’ During rains, the runoff enters the ditches, [and then] travels to the ‘waterways’ and on to Lake Champlain. The waterways are buffered, but the ditches are not. The runoff gets to the lake just as if the buffers on the waterways weren’t there.

How do you regulate this situation without expanding the definition of waterways?

The Libertarian Podcast, with Richard Epstein: How to Choose a Federal Judge


shutterstock_159118949As a matter of probability, the next president is likely going to get several cracks at Supreme Court appointments. As a matter of certainty, he or she is going to have scores of appointments to make to lower federal courts. All of which raises a question: how exactly do you pick the right person?

In this episode of The Libertarian podcast, Professor Epstein identifies the hallmarks of good and bad judges, considers whether the confirmation process in Washington has become too political, and lays out the structural reforms that he believes could help the federal judiciary. You can take this podcast on the go by subscribing to The Libertarian via iTunes or you can listen in via the embed after the jump.

Why Hillary’s Lies Don’t Matter


shutterstock_287370743The only thing that seems to be multiplying faster than the national debt, Donald Trump’s audacious comments, or the left-wing punditry’s gasps of horror over the death of what was apparently the globe’s favorite mammal, is Hillary Clinton’s accumulation of prevarications about … well, nearly everything she’s ever said for the past generation or so.

Hillary’s claims about never having been served a subpoena and maintaining only one device for her emails were lies. Her claim that Colin Powell did the same thing she did — and that she wasn’t required to turn over anything to the proper channels — was another whopper. Finally — and this is the kicker — her insistence that people “should and do trust me” should have generated tears of laughter from pollsters. It was for good reason that the late William Safire once claimed that Hillary Clinton was a “congenital liar.” And that was almost 20 years ago. Matters have not changed at all since that time — and arguably have gotten worse.

The question is whether or not her pathological lying makes any difference to her chances to become the next president. The most likely answer is, tragically: no, not a bit. Why not? Because we live in an era saturated by habitual lying, brazen lawlessness, and spectacular hoaxes.

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.”

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With the recent Supreme Court ruling on homosexual “marriage”, I realized that polygamy must be next. At first, I was against it, but then I realized—it could be a boon! I asked my wife (Neutral Observer) if after the next Supreme Court ruling that polygamy is legalized, may I marry a woman 30 years younger […]

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The Right Response to Obergefell: Jurisdiction Stripping


The other day on the main podcast (episode 265 for those playing along at home), I argued in favor of what I consider to be the most realistic strategy to undo the damage wrought by Obergefell v. Hodges; namely, jurisdiction-stripping legislation.  The proposal generated a fair amount of interest among the Ricochetti, and now I have expanded on the idea over at National Review.

I encourage you to read the whole thing, but here’s the basic idea.  Congress should abolish the jurisdiction of the Supreme Court — and all federal courts — over cases involving state laws defining marriage.  The result would be that states would immediately be free to reinstate laws defining marriage in the traditional manner, if they so wish.  Same-sex marriage advocates would be free to challenge those laws, but they would do so in state court, and the final judicial decision would rest with the Supreme Court of each state.

Can Congress do that? Yes. Under Article III of the Constitution, the appellate jurisdiction of federal courts (including the Supreme Court) is entirely subject to congressional regulation.  In fact, the very existence of every federal court (except the Supreme Court) is a matter of congressional discretion. Over the years, Congress has expanded and contracted federal appellate jurisdiction in various ways.

Clarence Thomas and the Rule of Law


There is an article by Dan McLaughlin in the latest issue of The Weekly Standard that you can find online and that you should take the time to read. Entitled “Giving Thomas His Due: The Justice Who Stands Alone,” it is a careful analysis of the jurisprudence of Clarence Thomas — the only Justice on our Supreme Court who takes the Constitution with full seriousness and rejects Woodrow Wilson’s demand that it be treated as a “living political constitution” subject to interpretation in a Darwinian, as opposed to a Newtonian, manner as an organism that evolves in a progressive manner. Here is a snippet:

Thomas’s opinions this term form a coherent whole, one that places no trust in institutions—in the wisdom of judges, the expertise of bureaucrats, or the evenhandedness of either—but depends instead on clear, written rules and structural checks and balances. And his philosophy, while grounded in the same principles as our Constitution itself, should not surprise us. Thomas is not so far removed from his upbringing in segregated Georgia that he cannot remember what it was like to live in a place and time in which the government was staffed and run by people who had no intention of treating you fairly.

Obergefell and the Limits of Judicial Supremacy


shutterstock_162764102In Obergefell v. Hodges, the Supreme Court used its power of judicial review to legalize gay marriage throughout the nation. In one fell stroke, five Justices short-circuited the democratic process, which was gradually removing barriers to gays, and swept aside the Constitution’s reservation of family-law matters to the states. Even while they may disagree on gay marriage, most Americans believe they must obey Obergefell because the separation of powers gives the Supreme Court the ultimate authority to interpret the Constitution.

Prominent defenders of traditional marriage, however, have gone beyond the usual criticism of a mistaken judicial decision to attack the Supreme Court as an institution. “I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch,” said Mike Huckabee, former governor of Arkansas and GOP presidential candidate. “We must resist and reject judicial tyranny, not retreat.” Fellow candidate and Republican senator Ted Cruz has proposed constitutional amendments not only to overturn Obergefell, which other candidates support, but to subject Supreme Court justices to periodic elections.

While these politicians, I believe, have overreacted, they hit upon an important truth about our Constitution. Contrary to popular belief, Obergefell does not settle the question of gay marriage, because the Supreme Court cannot finally determine any fundamental constitutional dispute. Claims of judicial supremacy have appeared before, ranging from the odious (Dred Scott’s defense of slavery) to the courageous (Brown v. Board of Education’s condemnation of segregation). But these views mistake the Court’s right to decide cases or controversies under the Constitution for supremacy in its interpretation.

The Supreme Court’s Incomplete Raisin Decision


shutterstock_155693495Many opponents of the government’s persistent meddling in agricultural markets hailed the recent Supreme Court decision in Horne v. Department of Agriculture — which found that a government scheme in which raisins are confiscated from growers in order to prop up crop prices constituted a taking that required just compensation — as a victory for limited government. As I note in my new column for Defining Ideas, however, the Court’s approach to this topic was woefully incomplete:

The most amazing part of this saga is not that the Hornes won, but that no one involved in the litigation used the word “cartel.” The Hornes had to avoid the term, which would undermine their claim. A cartel arrangement is not just a naked taking. Its offset turns out to be the higher prices that the Hornes and other cartel members can fetch for their remaining stock of raisins in the open market, which should count as a form of in-kind compensation under the Takings Clause. Under traditional antitrust lingo, they are cheaters who work under the cartel umbrella. All power to them!

Nonetheless, the government did not wish to make an open admission that the Marketing Act fortifies cartels, lest they undermine the stabilization myth that helps shield these cartels from public disapproval. And the Supreme Court, which has already blessed these grotesque arrangements, could ill-afford to undermine the legitimacy of its own earlier rulings, including Wickard, which props up the modern welfare state, including Obamacare.