Tag Archives: Topic: Jurisprudence

Bradley Abramson at Townhall: In fact, it can mean anything one wants it to mean. And a constitution that can mean anything is a constitution that means nothing—a mere 17 years after it supposedly meant something.

CANewsService: Supreme Court Justice Antonin Scalia told UC students that the Constitution is not a living document to be reinterpreted with every new generation, but a rigid set of rules which can be amended by lawmakers or citizens as society evolves.

Religion Clause Blog: Earlier this week, the Pew Forum On Religion & Public Life released two related studies. The first, titled Applying God’s Law: Religious Courts and Mediation in the U.S. surveys the routine operation of religious courts across the United States. The second is titled State Legislation Restricting Use of Foreign or Religious Law.

Ross Douthat at NY Times: The notion that nobody would have entertained what Drum later calls the “esoteric” idea that marriage has an essential link to the way that human beings procreate if desperate social conservatives hadn’t grasped at it is apparently quite a popular view, judging by the fact that other writers raised it on Twitter over the weekend, and its popularity testifies to the way that the gay marriage debate has encouraged a strange historical amnesia about the origins of marriage law.

ChrisAdamo.com: So perhaps the Supreme Court in its arrogance believes it can forcibly impose a redefinition of marriage on America. Let it next endeavor to strike down the law of gravity as “unconstitutional” on the basis that it clearly affects citizens in a decidedly disproportionate manner and thus is a primary source of “inequality” among the people. Then every concurring jurist, bureaucrat, and countercultural activist who regards the court’s decision as credible will be free to find a high precipice from which to test its merits. We will then see benefit that can actually be reaped from blind faith in liberal arrogance.

Darwin, Grant R., Originalism and Same-Sex Marriage (February 15, 2013). University of Pennsylvania Journal of Law and Social Change, Vol. 17.1, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2239782 Supreme Court Justice Antonin Scalia has repeatedly asserted that same-sex marriage is an easy …

Newsbusters: Yet, let’s do a flashback to 2009. Kagan was nominated to be the United States Solicitor General — the officer of the executive branch who represents the United States in controversies and cases which go before the U.S. Supreme Court — and was specifically asked about DOMA and same sex marriage (emphasis mine):

Mark Steyn at NRO: Three weeks ago, I wrote: An institution that predates the United States by several millennia will be defined for a third of a billion people by whichever way Anthony Kennedy feels like swingin’ that morning. The universal deference to judicial supremacism is bizarre and unbecoming to a free people.

Gerard Bradley at SCOTUS Blog: The Justices should be wary of the “science” route. Consider just the leading decisions mentioned during the arguments as instructive parallels to the instant cases. Consider, for example, Plessy v. Ferguson. Justice Sotomayor said that the Court let segregation “perk” for fifty years, until the Justices finally pulled the plug in 1954. But the Plessy Court did not wait upon social scientific evidence of the negative effects of segregation, as Sotomayor implied that it did. That Court was instead party to – at best – a sordid compromise with entrenched racist elements in American society.

Hercules and the Umpire: Turning to the meat of this post, I was the trial judge in both of the Carhart cases that ended up in the Supreme Court. Compare Carhart v. Stenberg, 11 F. Supp. 2d 1099 (D. Neb. 1998) (Nebraska’s partial-birth abortion statute was unconstitutional), aff’d, 192 F.3d 1142 (8th Cir. 1999), aff’d, Stenberg v. Carhart, 530 U.S. 914 (2000) with Carhart v. Ashcroft, 331 F. Supp. 2d 805 (D. Neb. 2004) (the federal partial-birth abortion statute was unconstitutional), aff’d, Carhart v. Gonzales, 413 F.3d 791 (8th Cir.2005), rev’d, Gonzales v. Carhart, 550 U.S. 124 (2007). Even though there was very little difference in the cases from my perspective, the Court affirmed the first decision but reversed the second. To say that I was perplexed is an understatement. It is that perplexity that prompts this post.

Intelligencer Wheeling News-Register: They see the court also as a court that only reluctantly makes new law, whereas in the past I think they viewed it as a court that looked for opportunities to legislate.

Damon W. Root at Reason: Many of his critics may be too ignorant to know it, but Thomas’ writings are steeped in African-American history and grapple repeatedly with the long shadow cast by slavery and Jim Crow. He may not be a modern liberal, but there is no question that Clarence Thomas is part of a civil rights tradition that started with Frederick Douglass.

AP: These varied family portraits of the justices are somewhat at odds with the arguments of gay marriage opponents who stress the unique ability of heterosexual couples to have babies as a reason to uphold bans on same-sex marriage.

Jack Balkin at Balkinization: At a meeting of the Supreme Court Clinic this evening, we discussed the upcoming arguments in the Marriage Cases. We considered what arguments would likely weigh most heavily with the Justices. I noted that one of the strongest influences on the Justices, and especially Justice Kennedy, was how they believed their decisions would look in in ten or twenty year’s time. Would they be seen as defenders of liberty and equality, or would they be viewed in hindsight as defenders of prejudice, fighting against the tide of progress?

Steve Aden at Constituting America: During the founding era, Alexander Hamilton had written Federalist 78, to assure those wary of a strong federal judiciary that “[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution,” because it holds neither the power of the sword, as the Executive (Presidential) Branch does, nor the power of the purse strings, as the Legislative Branch (Congress) does. “It may truly be said to have neither force nor will,” Hamilton said, “but merely judgment.”

SCOTUS Blog: Greenhouse and Siegel use the source materials republished in the book to challenge the conventional wisdom that, “if the Court had stayed its hand or decided Roe v. Wade on narrower grounds, the nation would have reached a political settlement and avoided backlash.” Once again, Linda Greenhouse has graciously agreed to answer a few questions about her work on this subject.

Paul Mirengoff at Power Line: But before getting into the weeds, we should step back in awe of the fact that the Supreme Court will likely decide the issue stated above. Assuming that threshold issues such as standing don’t prevent a ruling on the merits, nine glorified lawyers are about to tell us whether the traditional definition of marriage as requiring members of the opposite sex is rational and/or useful (whether the standard is “rationality” or “utility” is up for grabs in the case).

Pascal Emmanuel Gobry at The American Scene: But of course, as any freshman philosophy student can tell, the problem comes when you try to ground those universal human rights. Where do they come from? Who confers them? Why should they be respected? There’s basically only two ways to do so, one theistic and one non-theistic. Universal human rights are perfectly grounded if they come from God, as the Declaration of Independence asserts and as I believe in my heart of hearts. But not everybody likes that, and it sort of defeats the purpose of creating this secular moral system to begin with. The only other way that I’m aware of to ground the idea of universal human rights is in, wait for it, the natural law.

Randy Barnett at the Volokh Conspiracy: I just posted to SSRN a new paper of mine, The Gravitational Force of Originalism, that I will be presenting next week at the Fordham conference on “The New Originalism and Constitutional Law.” Here is the abstract . . .

Benjamin Bull at the Christian Post: Christians sometimes ask me, “Shouldn’t Christians, including Christian lawyers, try to avoid conflict, such as litigation in the courts, and spend their time on prayer and Christian fellowship and evangelism?”

E. Christian Brugger at Public Discourse: True doctors and abortionists are different kinds of persons because they perform different acts as they carry out different proposals: the one, a proposal to remove a non-viable child to save the mother; the other, to kill that child for the mother’s benefit.

Cass R. Sunstein at Bloomberg: Can the Defense Department overrule the U.S. Supreme Court? Can the Boy Scouts of America? The short answer is: Of course not. But a full response turns out to be more complicated, and it offers a lesson for thinking about the relationship between constitutional law and the evolving nature of rights.

Robert Barnes at Washington Post: Instead, the nine brandish definitions as a way to dress up their subjective decisions with an “objective veneer,” they say.

The Concord Monitor interviews former Justice David Souter: Warner: But you do not think as some believe – Justice (Antonin) Scalia being one – that you can stick to what he calls the fair reading of the text, which he says is basically what a reasonable reader would understand the text meant at the time of its adoption? Souter: No, you cannot stick to that. I gave a speech a couple years ago in which I gave an example of why simply reading doesn’t do it. That is, if you look at the text of the First Amendment, “Congress shall make no law abridging the freedom of speech and so on,” no law sounds pretty tough. But in fact everybody recognizes – conservatives, liberals – there are some laws that Congress can make that in a practical sense do limit the freedom of speech.

Cleveland.com: “While I recognize capital punishment is the law of the land, I cannot participate in what I consider to be a violation of the Constitution I have sworn to uphold,” O’Neill wrote in his dissent.

Alan Sears on KFUO with Roland Lettner to discuss his September 16, 2012 article in the American Thinker titled: The New Definition of Freedom. | MP3 audio 25:28 mins

Jim Graves at Catholic World Report Interview with Robert P. George: Robert P. George on Roe’s cultural and legal legacy, 40 years and 50 million lives later.

Gerard V. Bradley at Public Discourse: The Roe Court’s suppression of a foundational question—who is the law for—means that the decision could be overturned by any of several feticide cases that could reach the current Court.

Daniel K. Williams at Public Discourse: Actually, Roe did not introduce legal abortion to the United States; it did something even worse. Prior to Roe, legal abortion existed, but so did a large, vigorous pro-life movement, and that movement was beginning to win the public debate on abortion. Roe deprived the pro-life movement of its legal victories and allowed abortion to become more available to poor and minority women. It subverted the democratic process and led to a partisan polarization that only grew worse with time. Perhaps worst of all, it nullified the pro-life movement’s constitutional arguments and enshrined in case law a constitutional interpretation that deprived the unborn of any constitutional rights.

Charles J. Cooper at Washington Times: A case now before the U.S. Supreme Court could clarify a 200-year-old mistake by the great Chief Justice John Marshall. Standard Fire v. Knowles concerns judicial forum shopping and the interpretation of the Class Action Fairness Act, but it also reinvigorates a long-running debate about federal court jurisdiction.

Lawrence M. Vance at Future of Freedom Foundation: According to Planned Parenthood’s latest report, the organization received $542.4 million in “government health services grants and reimbursements,” including “payments from Medicaid managed care plans.” Yet the report also states that Planned Parenthood performed 333,964 abortions in 2011. But Planned Parenthood could not have received a dime of taxpayer money unless Republicans in the House — who play the pro-life card at every election — voted for the funding. They were, after all, in the majority.

Matthew J. Franck at National Review: Far be it from me to suggest that the Supreme Court look to foreign sources or opinions to guide its deliberations in the two cases now pending on same-sex marriage. But the shape of things in the current French debate over this issue is instructive indeed.

Stephan Dinan at Washington Times: Each of them takes an oath to defend the Constitution, but many House lawmakers either don’t understand the founding document or don’t take its precepts seriously, according to an analysis by The Washington Times that studied the constitutional backing that representatives submitted for each of the more than 3,000 bills they introduced in 2011.

Cass Sunstein at Bloomberg: In recent years, those who study federal courts have started to test these claims by analyzing many thousands of judicial votes. Armed with actual data, the researchers are finding that much of the conventional wisdom is wrong, or at least way off.

CNSNews: President Barack Obama re-nominated former New York State Solicitor General Caitlin Halligan to the Court of Appeals for the District of Columbia after her nomination had been blocked for more than a year . . .

Mirror of Justice provides some details.

Louis Michael Seidman at the New York Times: In the face of this long history of disobedience, it is hard to take seriously the claim by the Constitution’s defenders that we would be reduced to a Hobbesian state of nature if we asserted our freedom from this ancient text. Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.

Casey Mattox at Townhall: What might have been? If Robert Bork had been confirmed, perhaps this column would have appeared in this space. | also posted at Life News

Mike McConnell at Slate: It probably would have been less politicized and more committed to the rule of law.

Wall Street Journal: The U.S. Senate has had many low, retrograde moments, but easily among the worst was its 1987 rejection of Robert Bork to sit on the Supreme Court. Bob Bork died Wednesday at age 85, having contributed far more to American law than the 58 Senators who voted against him and more than most Supreme Court Justices.

Wall Street Journal: Without the Constitution’s original intent as their guide, wrote the great jurist who died Wednesday at 85, justices are left with merely their own ‘moral philosophy.’

The New American: Alan Sears of Alliance Defending Freedom, a conservative legal advocacy group, said in a statement that Judge Bork “stands as a constitutional giant of our generation, indeed, one of the greatest legal minds and tireless defenders of religious freedom in American history.” Sears said that Bork “had a dramatic impact on our nation, on its legal culture, and on the minds and hearts of many of its finest judges, law professors, students, and attorneys. Perhaps his greatest mark was the restoration of scholarship on Originalism, which has helped preserve the ingenious framework for freedom forged by our nation’s founders that many others in the legal profession had hoped to toss into the dustbin of history.”

Andrew Cohen at The Atlantic (includes video of the confirmation hearings): The relentless honesty and arrogant mien of Robert Bork, who has died at 84, during his unforgettable 1987 Supreme Court nomination hearing resulted in two very important things for this nation. First, it precluded the ideologue from becoming a life-tenured justice, which has meant over the intervening 25 years many saving graces for progressives and many bitter disappointments for conservatives. Second, it changed (forever, I suspect) the way judicial confirmation hearings unfold, by encouraging earnest nominees to say to the Senate Judiciary Committee nothing at all candid, specific, or profound about their judicial philosophies or views of the law.

Jeffrey Rosen at the New Republic: My contribution to the epic battle was modest: I helped with research for a speech on the history of the confirmation process, in which Biden argued that the Senate had the duty to scrutinize not only the legal qualifications but also the constitutional views of nominees. This was a controversial proposition at the time; today it has been taken to extremes that neither Biden nor Bork, who died today at 85, could have imagined.

Judge Robert Bork stands as a constitutional giant of our generation, indeed, one of the greatest legal minds and tireless defenders of religious freedom in American history.

Alan Sears at Townhall: In October 2010, the Alliance Defending Freedom was privileged to recognize Judge Robert H. Bork with the “Edwin Meese III Award for Originalism and Religious Liberty.” At that time, we described him as, “one of the greatest legal minds in American history, and a person who has made an indelible impact on our nation, on its legal culture, and on the minds and hearts of many of its finest judges, law professors, students, and attorneys.”

Fox News: Family members said Bork, 85, died early Wednesday morning. He had a history of heart problems and chronic obstructive pulmonary disease, a lung conditio

Justin Dyer at Public Discourse: Adam Freedman’s stark proposal in The Naked Constitution that we strip our founding document of its modern and academic glosses shows us that we need to take structural reforms to our Constitution seriously.

Rebecca Downs at Live Action News: Wednesday night, Students for Life of America’s group, Law Students for Life, and Harvard Right to Life held a debate, as part of the Law Students for Life tour. The debate was titled “Should Roe Survive Another 40 Years?” The event was broadcast live via USTREAM, and it is still up on the “Resources” section of the Law Students for Life website for those who are interested . . . Instead, the event first featured a presentation from Steve Aden, from Alliance Defending Freedom, followed by Professor Teresa Collett, of the University of St. Thomas School of Law. Now, I consider myself someone well-versed in the pro-life movement and the Roe v. Wade decision. However, there was much I learned from Aden’s carefully crafted presentation, which started off with the premise that Roe v. Wade is the single worst decision the Court has made and is a Supreme Court decision that the pro-choice side has never been able to get the other side to fully accept. The rest of his presentation involved the top-ten reasons to support his premise. The following portion of the article is my recounting of Aden’s reasons and explanations.

Robert Barnes at the Washington Post: Just before Tuesday’s elections, a national gay-rights group sent its supporters in Maryland an e-mail listing an additional reason to go to the polls to approve same-sex marriage. “Justice Anthony Kennedy is watching you,” the subject line said.

How Appealing links to a report and the opinion.

CNSNews (includes video): Supreme Court Justice Antonin Scalia said recently that–”especially after last term”–he does not know if he is confident the Constitution can be restored to its original meaning.upreme Court Justice Antonin Scalia said recently that–”especially after last term”–he does not know if he is confident the Constitution can be restored to its original meaning.

Matthew J. Franck at National Review: Like every other partisan of the principles of the Declaration of Independence, Madison understood our rights to be the gift of our Creator. To Him we owe everything; to Him is our very first duty and obligation. On this basis, religious freedom is the first of our rights, because it springs from the first of our duties.

NPR (includes audio): The first of The Federalist Papers were published 225 years ago this weekend. Weekend Edition host Rachel Martin talks with Pulitzer Prize-winning author and historian Jon Meacham about their importance and relevance today.

Billings Gazette: What do Elvis and U.S. Supreme Court Justice Antonin Scalia have in common? The chance of getting them to come to Wyoming is slim to none, said Caitlin Wallace, a third-year University of Wyoming law student and a member of the Federalist Society. Pictures of the king of rock ‘n’ roll and the king of the U.S. Constitution hang next to each other at the society’s office in Washington, D.C.

Alan Sears at Holy Apostles College: Seriously, I am truly honored to be here tonight, honored to address in the name of the Blessed John Paul the II – you, my fellow followers of Christ in this age of much uncertainty, about some of the defining issues of our time: the sanctity of life, bioethical issues, marriage, and the
struggle to preserve freedom of conscience and religious liberty.The 19th century Russian writer, Fyoder Dostoevsky once wisely said: “If God is dead all things are permitted.” My friends, we live in age — particularly right now in history during a crucial election year – where a political and legal battle wages about the law and the meaning of life: what it is, when it begins, and what our responsibilities are to nurture and protect it — or to extinguish or prevent it.

Harvard L. Prof. Michael J. Klarman at NYT: Justice Kennedy’s opinions often suggest that he wants to be on the right side of history, which matters greatly here because the future of gay marriage in America is so clear . . . A Supreme Court ruling in favor of gay marriage would divide the nation roughly down the middle, much as the Court’s ruling against racial segregation, in Brown v. Board of Education, did in 1954. Yet, within two decades, the Brown decision was almost universally revered . . .

Eugene Volokh at the Volokh Conspiracy: When NFIB came down, some commentators argued that Chief Justice Roberts’ conclusion that the mandate was not authorized by the Commerce Clause and Necessary and Proper Clause was mere dictum, and therefore not binding precedent for the lower courts. I criticized that view here. It’s worth noting that the Ninth Circuit just treated the Roberts’ Necessary and Proper reasoning from NFIB as if it were binding. In upholding the Sex Offender Registration and Notification Act sex offfender registration requirement, they relied heavily on NFIB’s interpretation of the Necessary and Proper Clause . . .

Federalist Society Blog: Today in Washington, D.C. Justice Scalia spoke about his new book Reading Law: The Interpretation of Legal Texts (co-authored by Bryan A. Garner) at an event co-sponsored by the Federalist Society and AEI. He began by emphasizing that “All of the great early justices were originalists and textualists.” He said it was unfortunate that that tradition is rare in legal education: “Text is not taught in law schools. . . . Canons [of interpretation] are picked up haphazardly.” In his view, it is unfortunate that first year courses focus on the Common Law even though most law has been codified.

LifeNews: When it comes to Supreme Court decisions, the media and election officials frequently talk about long-standing precedents that become accepted jurisprudence. In their eyes, such precedents should almost never be overturned by subsequent courts.

Volokh Conspiracy: In a recent public forum, Supreme Court Justice Clarence Thomas made news by conceding that blacks were not part of “We the People” at the time of the Founding in the 1780s . . .

Justin Dyer at Public Discourse: Slavery was a great evil, but the Constitution was neither its source nor its guarantor.

Lisa Shaw Roy, The Evangelical Footprint, 2011 Michigan State Law Review 1235-1291.

Funding for evangelical advocacy received a boost with the formation of the Alliance Defense Fund (ADF) in 1994. Prominent movement leaders, such as James Dobson of Focus on the Family and Bill Bright of Campus Crusade for Christ, formed ADF to fund litigation and to coordinate the efforts of Christian litigation firms.

ADF has been responsible for providing funding in several high profile cases, including Rosenberger, decided by the U.S. Supreme Court. ADF also sponsors litigation firms with overlapping interests, such as the Christian Law Association, Pacific Justice Institute, the Home School Legal Defense Fund, and the Foundation for Individual Rights in Education, to name a few. While ADF began solely as an umbrella organization to provide funds to individual lawyers and law firms, ADF now also takes its own cases.

Though its success as a funding organization seems apparent given, for example, the number of Supreme Court amicus curiae briefs that disclose ADF support, some opine that its success in coordinating evangelical litigation efforts has been mixed.

PBN.com: Although it may be surprising to see tiny Rhode Island in a legal fight with the U.S. Justice Department over the custody of an accused murderer – a battle that could go all the way to the U.S. Supreme Court – in many ways it befits the state’s unique political geography.

SCOTUS Blog: The following contribution to our same-sex marriage symposium comes from Steve Sanders, who teaches Constitutional Litigation, Sexuality and the Law, and Family Law at the University of Michigan Law School . . . Support for marriage equality continues growing dramatically and now commands a majority in many polls . . . Such attitudinal change should portend political and legal change. It should mean that winning equality state by state, through simple legislative majorities, is getting easier. “Use the democratic process!” legal conservatives like to counsel. “Don’t go running to the courts!” But in most states, such change will not come as naturally as it should, due to barriers erected by opponents of equality. On same-sex marriage, we have an example of what constitutional theorist John Hart Ely called “stoppages in the democratic process.”

The link to the broadcast is here. Justice Scalia and co-author Bryan A. Garner will discuss their new book: Read the Law: The Interpretation of Legal Texts. Hat tip: SCOTUS Blog.

Eugene Volokh at the Volokh Conspiracy: From yesterday’s Opinion Juris post by Prof. Peter Spiro, one of the leading international law scholars in the country . . . As the regime of international human rights grows thick, however, that justification should no …

Ron Paul: Democracy is majority rule at the expense of the minority. Our system has certain democratic elements, but the founders never mentioned democracy in the Constitution, the Bill of Rights, or the Declaration of Independence. In fact, our most important protections are decidedly undemocratic. For example, the First Amendment protects free speech. It doesn’t – or shouldn’t – matter if that speech is abhorrent to 51% or even 99% of the people. Speech is not subject to majority approval. Under our republican form of government, the individual, the smallest of minorities, is protected from the mob.

Ed Whelan at National Review Bench Memos: In the New Republic, Seventh Circuit judge Richard A. Posner has a very long essay (more than 5000 words) attacking Reading Law: The Interpretation of Legal Texts, the new treatise co-authored by Justice Antonin Scalia and Bryan A. Garner (and the subject of various posts of mine, beginning here, over the past month). As I hope to elaborate in additional posts over the next week or so, Posner’s attack is remarkably slipshod and untrustworthy. Here are some opening observations . . .

Richard A. Posner at the New Republic: Judges like to say that all they do when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them. They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic.

Michael Fragoso at Public Discourse: Criticism that Republican justices have only hurt the pro-life cause is misguided, because Republican presidents from Reagan onward have deliberately tried to advance judicial conservatism through federal court appointees–a commitment that has brought victories both for judicial conservatism and the pro-life cause. The second of a two part series.

David B. Rivkin, Jr. at the Wall Street Journal: In “Reading Law,” Supreme Court Justice Antonin Scalia and legal writer Bryan A. Garner argue for paying close attention to the original meaning of the words in the Constitution and other legal documents.

The American Prospect: Iowa Republicans aren’t ready to cast aside their anger over the state Supreme Court’s 2009 decision legalizing same-sex marriage. After successfully unseating three of the justices who joined the unanimous decision in 2010, they’re going after Justice David Wiggins, who is up for a retention vote this year. The new conservative campaign won’t change Iowa’s same-sex marriage law, but it further politicizes the state’s once-independent judiciary and may boost turnout for Mitt Romney in a key swing state.

Michael Ramsey at the Originalism Blog: Originalist law professor Mike Paulsen has written a short essay defending Chief Justice Roberts’s decision upholding the Health Care Law as a tax. It might seem like a serious matter that a right wing originalist endorses Roberts’s decision. Perhaps critics of Roberts’s opinion need to rethink their criticisms. But no such rethinking is necessary, because Paulsen’s defense of the opinion is insufficient.

PBS (includes video): U.S. Supreme Court Justice Antonin Scalia says the key factor for a judge’s ruling is finding where the balance resides in a case. Margaret Warner interviews Justice Scalia about his new book, “Reading Law: The Interpretation of Legal Texts,” and asks about his opinions on the Second Amendment and the Affordable Care Act.