Supreme Court Asked to Review Laws Banning Campaign Speech for Judges

Judicial deference to Congress versus judicial deference to state legislatures

Supreme Court will put audio of every argument on web

US Supreme Court: Cert Filed In Challenge To Inauguration Oath and Prayers

A judge’s warning about the legitimacy of the Supreme Court

    New York Times: “Justice Breyer describes the court in its early years, when it decided few cases and the ones it decided were trivial. From that lowly state, the court has earned considerable authority, but it has also forfeited legitimacy with bad decisions, some so bad they were ‘ignored or disobeyed’ . . . The court’s ‘infirmity’ shows that its legitimacy in the public’s eyes ‘cannot be taken for granted,’ he writes. His pragmatic means are intended ‘to help maintain the public’s trust in the Court, the public’s confidence in the Constitution, and the public’s commitment to the rule of law.’”


  • Posted: 09/27/2010
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  • Category: Bench & Bar
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  • Source: www.nytimes.com

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Who stands for standing?

Americans vote on the Supreme Court

New York Times: An extreme judicial blockade

New York Times: Politically charged clerks

O’Connor says appointed judges better for business

Scalia takes on women’s rights

    Adam Cohen writing at TIME: “Even though the court has said for decades that the equal-protection clause protects women (and, for that matter, men) from sex discrimination, the outspoken, controversial Scalia claimed late last week that women’s equality is entirely up to the political branches. ‘If the current society wants to outlaw discrimination by sex,’ he told an audience at the University of California’s Hastings College of the Law, ‘you have legislatures’ . . . And the fact that we have a very different country now from the days of the Founding Fathers is why Justice Scalia is on the wrong side of this debate . . . As Justice Oliver Wendell Holmes explained almost a century ago, the Constitution’s framers created an ‘organism’ that was meant to grow — and to be interpreted ‘in the light of our whole national experience,’ not based on ‘what was said a hundred years ago.’”


  • Posted: 09/22/2010
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  • Category: Bench & Bar
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  • Source: www.time.com

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Will the Supreme Court strike down controversial provisions of the new health-care law?

    Newsweek: “Two conservative federal judges have now voiced cautiously sympathetic views on legal challenges to the 2,400-page health-care law that President Obama signed into law in March. But such preliminary skirmishes shed little light on whether the Supreme Court will in the end strike down the law, a law that raises a completely novel legal issue: can Congress require millions of individuals to buy a commercial product (in this case health insurance) in the name of regulating interstate commerce.”


  • Posted: 09/21/2010
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  • Category: Bench & Bar
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  • Source: www.newsweek.com

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“Constitution does not ban sex bias, Scalia says”

In book, more of Breyer’s dissents on originalism

Kelly Boggs: Limits to the First Amendment?

    Kelly Boggs writing at Baptist Press: “Justice Stephen Breyer recently indicated that the global socio-political climate could influence the interpretation of the First Amendment so as to render the public burning of a Quran unconstitutional . . . Breyer noted that Holmes argued that shouting ‘fire’ in a crowded theater was not protected speech because people could panic and be trampled while trying to escape the building. ‘And what is the crowded theater today?’ Breyer asked. ‘What is being trampled to death?’ . . . If, as Breyer suggests, the future of free speech in America could hinge on what people in other countries deem offensive — specifically about the Quran — and how they might react, just imagine the implications. Free speech would eventually evaporate.”


  • Posted: 09/20/2010
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  • Category: Religious Liberty
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  • Source: www.bpnews.net

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Breyer clarifies earlier remarks, suggests Koran-burning is constitutional

Justice Clarence Thomas to visit University of Tennessee

GA: “Abandon age-old animosities” when Clarence Thomas appears for courthouse dedication

    The Augusta Chronicle: “Those who oppose Thomas’ appearance [at the dedication of Augusta's new Judicial Center and Judge John H. Ruffin Jr. Courthouse] cite his position on affirmative action, which he opposes. They say the man whom the new courthouse will be named after, the late Judge John H. Ruffin Jr., would oppose Thomas’ appearance at the dedication . . . It’s time to stop shunning the man because he’s a black conservative. Blacks fought too hard and too long for the right to have a seat at the lunch counter to deny one of their own a seat of power because he believes differently than others.”


  • Posted: 09/17/2010
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  • Category: Bench & Bar
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  • Source: chronicle.augusta.com

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Obama v. Breyer v. Breyer on Quran burning and the law

    Politico: “In interviews this week as part of a book tour, Breyer at first seemed to raise doubts about whether Quran burning would be protected — comparing it to shouting fire in a crowded theater and saying the court might have to work its way through such issues in the future. However, last night on CNN he came closer to asserting a right to burn the Quran. Breyer compared it to flag burning, which the Supreme Court has ruled to be constitutionally protected.”


  • Posted: 09/17/2010
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  • Category: Bench & Bar
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  • Source: www.politico.com

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“Breyer makes case for Justices’ adherence to Constitution”

    Jess Bravin writing in The Wall Street Journal: “Justice Breyer, during a conversation in the chambers he keeps at the federal courthouse here, sought to tamp down criticism from some on the left that conservatives led by Chief Justice John Roberts are on an ideological mission to roll back individual rights, while showing ‘tea-party groups’ and others on the right why liberal-leaning justices like him believe they are keeping faith with the framers. Even when the justices disagree, ‘all nine of us think we’re following the same Constitution that was there in 1790,’ he said.”


  • Posted: 09/16/2010
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  • Category: Bench & Bar
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  • Source: online.wsj.com

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Is the judicial takings issue headed back to the Supreme Court?

David French: The beheader’s veto

Prioritizing judicial vacancies – Obama virtually matching or passing Bush on successful judicial nominations

    Jason Mazzone writing at Balkinization: “With respect to nominations to the appellate courts, Obama has done very well. 10 Obama nominees have been confirmed to the federal circuit courts to date. At the same point in George W. Bush’s presidency (September 13, 2002), 13 of his nominees had been confirmed to the circuit courts. Going up the ladder, Obama has also placed two justices on the Supreme Court. George W. Bush secured appointments of two Supreme Court justices but not until his second term in office. I don’t know how many circuit court judges a Supreme Court justice is worth (five? ten?) but whatever the number, Obama has outpaced Bush at the appellate level overall.” Via Orin Kerr at The Volokh Conspiracy.


  • Posted: 09/15/2010
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  • Category: Bench & Bar
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  • Source: balkin.blogspot.com

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Comes a Horseman: Roosevelt versus the Supreme Court

    Timothy Sandefur writing at National Review Online: “Franklin Roosevelt’s clash with the Supreme Court is one of history’s greatest legal dramas, but it has generated an unfair and misleading mythology. In this legend, the Court greeted the New Deal with a blast of reactionary decisions in 1935 and 1936 . . . to which Roosevelt retaliated by threatening to pack the Court with a new, more loyal majority of justices . . . This account further holds that the justices opposing Roosevelt — the “Four Horsemen”: George Sutherland, Willis Van Devanter, James McReynolds, and Pierce Butler — were wedded to the cruel, sink-or-swim philosophy of Social Darwinism . . . Attorney Dean Alfange came closer to the truth when he wrote in 1937 that the New Deal’s ‘one guiding principle’ was ‘wholesale and pervasive governmental interference with all branches of private business,’ which required a ‘readjustment of constitutional values.’”


  • Posted: 09/15/2010
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  • Category: Bench & Bar
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  • Source: www.nationalreview.com

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Justice Stephen Breyer: Is burning Koran protected by First Amendment?

History through a Supreme Court Justice’s lens

    NPR: “U.S. Supreme Court Justice Stephen Breyer has sparred for years with Justice Antonin Scalia on the printed pages of legal opinions. The two have even debated about constitutional interpretation in public. And now Justice Breyer has taken his argument to the printed pages of a book written for popular consumption . . . Breyer’s book, Making Our Democracy Work, A Judge’s View, is a combination of history and legal philosophy. It argues that there are no easy, color-by-the-numbers answers to many legal questions and that to suggest there are is an illusion . . . Breyer argues that the founders did want a living Constitution; they wrote a Constitution they wanted to last for the ages. The founders knew ‘perfectly well that conditions would change. The values don’t change. The circumstances do.’”


  • Posted: 09/13/2010
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  • Category: Bench & Bar
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  • Source: www.npr.org

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“John Roberts, the accidental Chief Justice”

    Linda Greenhouse writing at The New York Times / Opinionator: “Had [Justice O'Connor] anticipated that the chief justice would not serve out the next Supreme Court term, she told me after his death, she would have delayed her own retirement for a year rather than burden the court with two simultaneous vacancies . . . It’s easy to forget, for example, that John Roberts was an accidental chief justice . . . had Chief Justice Rehnquist learned of his dire prognosis a month sooner than he did, I think there is at least a fair chance that Sandra Day O’Connor would still be on the court.”


  • Posted: 09/10/2010
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  • Category: Bench & Bar
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  • Source: opinionator.blogs.nytimes.com

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USC Law: U.S. Supreme Court preview, Sept. 20

    USC Law: “USC Law is presenting the third annual ‘U.S. Supreme Court: A Preview,’ featuring distinguished legal scholars Kathleen Sullivan of Stanford Law School, John Eastman of Chapman Law School and Rebecca Brown of USC Gould School of Law . . . The panelists will discuss and debate the upcoming U.S. Supreme Court Term, which begins Oct. 4. They will look at the dynamics of the Court, the appointment of Justice Elena Kagan and the Court’s future.”


  • Posted: 09/10/2010
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  • Category: Bench & Bar
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  • Source: lawweb.usc.edu

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At Marquette University Law School, Scalia stresses teaching

    Milwaukee Journal-Sentinel: “U.S. Supreme Court Justice Antonin Scalia offered frank advice Wednesday to the hundreds of faculty and students who turned out for the dedication of Ray and Kay Eckstein Hall, Marquette University Law School’s new $85 million building . . . ‘The reality is that the part of your academic career that will have the most lasting impact and that will be remembered after you are long gone is those hours you spent producing a living intellectual legacy in the classroom,’ Scalia said. ‘I hope Marquette will always be a teaching law school.’”


  • Posted: 09/09/2010
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  • Category: Bench & Bar
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  • Source: www.jsonline.com

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O’Connor: Iowa merit-selection process is fair

O’Connor retired from court, not discourse

    USA Today: “At age 80, O’Connor . . . balances multiple roles as she tries to influence public debate. She says she’s making progress — despite hurdles — on her priorities of civics education and the selection of state judges through merit appointments rather than public elections . . . She also hears more U.S. appeals court cases. (Retired justices have the option to hear and vote on lower-court cases.) . . . She has let her opinion [of the Roberts Court] slip on occasion, complaining last October that some of her decisions were ‘being dismantled’ and lamenting in February a ruling a few weeks earlier allowing greater corporate and union spending in elections.”


  • Posted: 09/09/2010
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  • Category: Bench & Bar
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  • Source: www.usatoday.com

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Law clerk ideology and the principal-agent problem

O’Connor joins group defending Iowa justices who redefined marriage

Justice Thomas on Supreme Court Clerk Hiring: “I’m not part of this . . . faux nobility”

Justice Kennedy on blogs

Protest at military funeral ignites a test of free speech

    USA Today: “The case has grown beyond a single clash between a devastated father and an attention-seeking, fire-and-brimstone group into a major test of speech rights and of safeguards for the sanctity of military funerals. The Supreme Court will hear the case Oct. 6, a crucial First Amendment challenge against the poignant backdrop of war deaths, family suffering and the military’s ‘don’t ask, don’t tell’ policy that allows gays and lesbians to serve — as long as their sexual orientation remains secret.”


  • Posted: 08/31/2010
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  • Category: Religious Liberty
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  • Source: www.usatoday.com

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Protest at military funeral ignites a test of free speech

Under the U.S. Supreme Court: The way of the cross

Will the presence of three women really change the court in any real way?

    Dahlia Lithwick writing at Slate: “[W]hat does the difference between having one, two, or three women at the court really signify? Social scientists contend that the difference is more than just cosmetic. They cite a 2006 study by the Wellesley Centers for Women that found three to be the magic number when it came to the impact of having women on corporate boards . . . ”


  • Posted: 08/30/2010
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  • Category: Bench & Bar
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  • Source: www.slate.com

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Nine Justices and Ten Commandments

How Americans view the Court

Notable SCOTUS petitions: Excluding audience members at government sponsored events

ACLU asks Supreme Court to hear Va alcohol ad ban

SCOTUSblog: November arguments, day by day

Resolution opens door to dialogue about Supreme Court, security

    Washington Post: “On May 3, the court decreed that as of the next day, visitors would no longer be allowed to ascend the 44 marble steps, pass under the grand promise chiseled on the pediment — Equal Justice Under Law — and enter through the court’s massive, ornamental bronze doors . . . Rep. Anna Eshoo (D-Calif.) has joined the ranks of dissenters, but perhaps her dissent will carry more weight. Late last month, she introduced a resolution calling on the Supreme Court to change its mind and reopen the iconic doors. She has more than 30 co-sponsors. She is seeking more allies and says she will reintroduce the resolution in the next Congress if need be.”


  • Posted: 08/23/2010
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  • Category: Bench & Bar
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  • Source: www.washingtonpost.com

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If there’s no cross, is there still a case?

Timothy Tracey: New Supreme Court appointment could surprise on religion, freedoms

    Timothy Tracey, Naples/Associate Professor of Law, writing at the Naples Daily News: “Yet for all her furor over the military’s use of Harvard’s Office of Career Services, Kagan never overturned the law school’s decision to allow the Christian Legal Society to advertise religiously-restricted jobs. Both the military and the society are unquestionably discriminatory (albeit on different grounds). Kagan ousted the military but kept the Christian Legal Society . . .  Tracey began his legal career working in the field of commercial litigation and bankruptcy. He then moved on to work for the Center for Law and Religious Freedom, where he worked on First Amendment religious liberty cases. He then worked for the Alliance Defense Fund in Washington. His course offerings include Torts I and Torts II, as well as Professional Responsibility. Professor Tracey holds a B.A. in Christian Thought from Grove City College and a J.D. from Wake Forest School of Law.


  • Posted: 08/23/2010
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  • Category: ADF in the News
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  • Source: www.naplesnews.com

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Kennedy favors civilian courts in terrorism cases

Nebraska stands down on abortion . . . for now

Lawyer: Expect “powerful” statement from Supreme Court on Westboro case

What makes Arizona such a hotbed of high court action?

Robert Knight: Will Fake ‘Marriage’ Law Become the New Sedition Act?

KY: Counties may try new Commandments appeal

Harvard leads among Supreme Court law clerks

How 1997 ruling might thwart Prop. 8 appeal

National Review Online: “Gay marriage on hold”

Matthew J. Franck: Professor Klarman sows the dragon’s teeth on Supreme Court and marriage

ACLU again refuses to ask Supreme Court to review Ten Commandments case

Protests at funerals a test of free speech

Supreme Court refuses to block $20,000 “birther” sanction

Dahlia Lithwick: “What will Anthony Kennedy do on gay marriage?”

    Dahlia Lithwick writing at Slate: “Kennedy himself has become the Rorschach test, with both sides importing their worst fears onto their assessment of his future vote. Still, it’s the only question anyone’s asking . . . For a bit of deeper insight, I turned to a 2004 paper called ‘The Gay Rights Jurisprudence of Anthony Kennedy,’ by Artemus Ward, a professor of political science at Northern Illinois University . . . [Ward] concludes that Kennedy’s ‘opinions in Romer and Lawrence can be considered precedent to expand gay rights, including gay marriage. At the same time, they could constrain his choices and he could be unwilling to extend his position to more controversial gay rights claims.’ And that’s pretty much the uncertain Kennedy landscape we’ve all come to recognize.”


  • Posted: 08/16/2010
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  • Category: Marriage & Family
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  • Source: www.slate.com

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Kennedy key to same-sex “marriage”

ERLC urges court to uphold Ariz. school choice

Tim Wildmon: A biased ruling on “gay marriage” in California

Supreme Court Clerk hiring watch: Justice Kagan’s clerks

    Above the Law: “Not surprisingly, the former dean of Harvard Law School bleeds Crimson. At least two of Justice Kagan’s four clerks are HLS graduates. One is a graduate of Yale Law School (the alma mater of Justice Kagan’s late father). (We’re still waiting for the name and law school of the fourth clerk.) . . . We’ve learned the name of the fourth Kagan clerk. She’s also a Harvard Law grad, leaving Justice Kagan with three out of four clerks from HLS.”


  • Posted: 08/13/2010
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  • Category: Bench & Bar
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  • Source: abovethelaw.com

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God and country are banned in Washington

Justice Ruth Bader Ginsburg Receives Highest ABA Honor

Yoest on confirmation of Elena Kagan to the Supreme Court

In S.F., Ginsburg addresses standoff on judicial appointments

Custody case calls on Supreme Court

Expert: Supreme Court likely cautious on ‘gay marriage

Why waste all this time litigating social issues? Just send Anthony Kennedy an email