Linda Greenhouse omits the anti-Catholic bias at the heart of a new case before the Court.
The headline is jolting. “Religious Crusaders at the Supreme Court’s Gates.” Thus starts Linda Greenhouse’s analysis of the actual and potential religion cases before the Court during its October term. Her thesis is that the Court’s relative restraint in its religion cases the previous term represented the justices’ merely “biding their time.” This term the gloves may come off. Now the Court may well “go further and adopt new rules for lowering the barrier between church and state across the board.”
She focuses on an Institute for Justice case that the Court has accepted for review, Espinoza v. Montana Department of Revenue. It involves a Montana supreme-court-ordered termination of a state tax-credit scholarship program that “helped needy children attend the private school of their families’ choice,” including religious and nonreligious schools. The precise issue before the Court, in dry legalese, is this: whether the Montana court’s decision “violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.”
Greenhouse is incredulous. If SCOTUS rules against Montana, then, according to her, “the logical consequence is that a state that once had a program offering financial support to religious and nonreligious schools alike . . . and that subsequently shut down the program entirely can be deemed to have violated a principle of religious neutrality.”
“Can that possibly be the law?” she asks. But her summary isn’t exactly right. She pays short shrift to the key fact of the case. The Montana court’s ruling was based on the state’s Blaine amendment, an artifact of odious 19th-century anti-Catholic bigotry. In fact, the words “Blaine amendment” appear nowhere in her piece.
A brief history lesson is in order. As Mike McShane explained in an instructive Forbes piece last year, in the latter part of the 19th century, America’s public schools were often “nominally Protestant.” They would frequently start their days with prayer, the students would read from the King James Version of the Bible, and they’d sometimes even sing hymns.
So when Senator James Blaine proposed amending the United States Constitution to state that “no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations,” he was not attempting to stamp out public-school religiosity. He was attempting to deny aid to Catholic parochial schools.
Blaine’s federal amendment failed, but his language found its way into 37 state constitutions. As McShane notes, the anti-Catholicism of the amendments is betrayed by the words “sect” or “sectarian.” In the language of the time, Protestant instruction was “nonsectarian.” Catholic instruction was “sectarian.”
Let’s look at the relevant language of the Montana constitution. The section at issue is entitled “Aid prohibited to sectarian schools” and prohibits the use of public funds “for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”
Mr. Blaine, meet your amendment.
So let’s go back to the question posed by Linda Greenhouse. “Could that possibly be the law” that states are prohibited from ending “a program offering financial support to religious and nonreligious schools alike”? Yes, it can possibly be the law. Indeed, it should be the law — when the state ends support because it’s enforcing a legal provision that in purpose and effect engages in blatant religious discrimination.
The twin constitutional pillars of religious liberty in the United States — the free-exercise clause and the establishment clause — don’t just protect liberty by disestablishing religion (by preventing the formation of a state church). They protect liberty by preventing punitive anti-religious policies. They prevent the state from targeting religion for disfavored treatment.
Targeting religion for disfavored treatment is exactly what Blaine amendments do. They were aimed squarely at Catholics. Yet as so often happens with attacks on liberty that are allegedly narrowly targeted, the government expanded its scope. Now the law aimed at Catholics affects all people of faith. When it comes to participation in public programs — programs they bought and paid for with their own dollars — Montana’s religious citizens and religious institutions are entitled to equal treatment under the law.
'I'm just so surprised that candidates are making conclusions here that are impossible to make'
Morning Joe hosts Mika Brzezinski and Joe Scarborough ripped the New York Times‘s decision to run a story about new allegations against Supreme Court Justice Brett Kavanaugh without including vital context about the story.
The Times published an essay adapted from a forthcoming book about the Kavanaugh confirmation battle in which two Times reporters claimed to have “uncovered a previously unreported story” about alleged sexual misconduct during Kavanaugh’s college years.
“A classmate, Max Stier, saw Mr. Kavanaugh with his pants down at a different drunken dorm party, where friends pushed his penis into the hand of a female student,” the Times reporters wrote. They added that this allegation “echoes” the allegation made by Deborah Ramirez, who alleged Kavanaugh “thrust his penis in her face, and caused her to touch it without her consent” during a party in college.
On Sunday night, the Times added a note to the story correcting a factual omission. The reporters excluded that the victim of Stier’s alleged incident “declined to be interviewed and friends say that she does not recall the incident.”
“Wait a second, a woman who Stier claims was abused by Kavanaugh, has she denied this? Has she claimed this happened? Why is there this glaring omission in The New York Times story? There were Molly Hemingway and others on Twitter were saying that, in fact, she had no recollection of this happening and her friends were saying the same thing,” Scarborough said.
“And I could not believe The New York Times would write this piece without that information contained in it. Are you surprised 24 hours—is it 24 hours went by before they clarified that fact?” he said, adding the article also did not note that Stier was the opposing counsel to Kavanaugh during their work on the Monica Llewinsky scandal.
“I don’t understand why they didn’t put this information in the article. Did that strike you as strange?”
“Yeah, that’s certainly good context being provided here about Stier. We were talking about this yesterday and were puzzled and remain so that if the woman involved is saying that she didn’t remember, that raises questions about the piece,” Associated Press reporter Jonathan Lemire responded. “Certainly, The New York Times has made their own editorial judgments about what should be included.
Scarborough pointed out each of the major three allegations against Kavanaugh had issues with corroborating witnesses.
“Here we have, again, a New York Times piece where Brett Kavanaugh is accused of something and, again, the very woman who was the alleged victim in this alleged incident is saying she doesn’t recall it happening,” he said.
Brzezinski addressed the political implications of the new allegations. Sens. Elizabeth Warren (D., Mass.), Kamala Harris (D., Calif.) called on Kavanaugh to resign, along with fellow 2020 candidates Beto O’Rourke (D.), Julian Castro (D.), and Mayor Pete Buttigieg (D.). Both former Vice President Joe Biden (D.) and Sen. Amy Klobuchar (D., Minn.) called for further investigation into the allegations.
“There has not been any new statements from any of the candidates since the Times updated the story overnight, that the female student declined to be interviewed and friends say she does not recall the episode,” Brzezinski said, pointing out there are still many unanswered questions.
“I’m just so surprised that candidates are making conclusions here that are impossible to make, again.”
By Eric Boehm • Reason
Given the choice of no longer paying to support unions they didn’t want to join in the first place, lots of public sector workers took it.
Two of the largest public sector unions in the country lost more than 210,000 so-called “agency fee members” in the wake of last year’s Supreme Court ruling that said unions could no longer force non-members to pay partial dues. That case, Janus v. American Federation of State, County and Municipal Employees, effectively freed public workers from having to make “fair share” payments—usually totaling about 70 to 80 percent of full union dues—in lieu of joining a union as a full-fledged member.
Now, annual reports filed with the federal Department of Labor show that the American Federation of State, County and Municipal Employees (AFSCME) lost 98 percent of it’s agency fee-paying members during the past year. Another large public sector union, the Service Employees International Union (SEIU), lost 94 percent of their agency fee-paying members.
Even though unions were preparing for a mass exodus in the wake of the Janus ruling, the numbers are staggering. In 2017, AFSCME reported having Continue reading
Elections,” the man once said, “have consequences.”
In 2016, the need to fill a vacancy on the United States Supreme Court was a consequence foremost in the minds of voters. That the pick ended up being made by Donald Trump’s and not Hillary Rodham Clinton helped stoke the partisan rancor that has the country divided and beleaguered.
A Clinton pick would have turned the court to the left for the first time in decades. Trump’s first nominee preserved the originalist wing of the court. His second appointment solidified it. And the voters apparently approve. Pollster Scott Rasmussen recently found 61 percent of voters approve of the way the court is doing its job. The high level of confidence, he says, tracks back at least as far as August 2018, and 59 percent of those surveyed think the court’s power is at about the right level.
Chief Justice John Roberts, whom some conservatives regard as the weakest of the adherents to originalism currently on the court, has been accused of making compromises on legal points to protect the court’s reputation. The Rasmussen numbers suggest the strategy’s worked, at least to this point. Still, as Roberts’ deciding vote to uphold the constitutionality of the tax/penalty piece of Obamacare illuminates, the court’s power to decide legislative disputes is now firmly entrenched in the American system. This may not have been the founder’s intent, but the court now has the last word on controversial matters that many continue to argue should be settled in and by the legislature.
Right now, with the court stacked five to four against for the foreseeable future, the Left is up in arms. Seeking a fix, several candidates running for the Democratic presidential nomination have embraced the idea of expanding the size of the Supreme Court, formerly an obscure idea emanating from the academy. “Plain and simple, the Democrats are seeking to get through legislation what they couldn’t achieve at the ballot box,” says Brad Blakeman, a former Bush White House staffer. “They are seeking to add judges, not fill vacancies, which is totally subverting the system.”
This is why the confirmation of new justices has been, since Reagan-appointee Robert Bork was defeated, so confrontational. Everything happens with outcomes in mind. Blakeman’s point is well taken. If the court really did need to be expanded, it could be done now. Massachusetts Sen. Elizabeth Warren, who wants to follow Trump in the White House, could drop a bill doing that next week. But what she and others intend is pure politics: Win the election first, then pack the court with liberals, end critical debates once and for all, and leave the Left in power forever.
It’s a powerful temptation. Franklin Roosevelt famously proposed the addition of new associate justices to the court to assist its older members who, surprise, surprise, would probably also be voting to uphold the constitutionality of New Deal measures the court had been striking down.
That, says David Norcross, a former Republican National Committee general counsel and former head of the Republican National Lawyers’ Association, was a bad idea then and would be now.
“Presidents have suffered from this since Chief Justice Marshall declared the independence of the courts. Fortunately, Congress, including some Democrats, thought the better of FDR’s court-packing scheme and acknowledged the Constitution and the founders’ reasoning,” Norcross says.
To thousands of other legal and presidential scholars all over America, the point of the court is its independence – and always has been. Packing the court would upend that.
“Democrats keep criticizing the president for trampling all over political “norms” and call him a dictator. But here we see them so upset at losing the last election they want to trample all over the “norms” and completely change the rules of the game to favor themselves, says political strategist Mike Shields.
The irony is the cure is worse than alleged disease. Just as Democrats have continued to protest, to “resist” the outcome of the 2016 election even though Trump was, famously, the only candidate ever asked about it in televised debates. It is those who oppose him who have come with the idea of loading up the court with compliant liberal justice in order to produce desired outcomes in a way that demeans if not erodes the constitutional system.
“Once Congress decides to add justices the race to chaos commences. Add two new justices, then if not satisfied with the outcomes, add two more. It will get easier to do so each time until the Court resembles a third, albeit smaller, legislative body which has become entirely political,” says Norcross. “An independent Court is an indispensable ingredient of the system of checks and balances. A Supreme Court concerned that a politically unpopular decision or decisions will result in adding new justices isn’t independent anymore.”
By John Yoo & James Phillips • National Review
We now hold the equivalent of yesterday’s supercomputers in our pockets. Communications occur instantly, from encrypted messages to Twitter blasts that reach millions. Entrepreneurs make fortunes by analyzing and harvesting the 2.5 quintillion bytes of data produced each day. Governments search the data to find terrorist networks or launch foreign propaganda. From business to politics, success depends on reading the tea leaves we electronically leave behind with social-media posts, texts and emails, or Google searches.
As inevitably as the weather, the hand of regulation has followed. While using the data for itself, the state seeks to regulate the businesses and individuals that create it. We have only begun to figure out whether the rules of privacy that governed paper records, telephone calls, and the mails will continue to apply, and how, to emails, texts, video clips, and social media. Not only does technology create more data that individuals want to protect; it also expands the government’s ability to search and manipulate. Where the line will fall between new technologies, regulation, and privacy will likely become the greatest legacy of Chief Justice John Roberts’s Supreme Court.
The Court will have the opportunity to correct the mistakes of its past. In the 1950s and ’60s, the Supreme Court under Chief Justice Earl Warren sought to adapt constitutional rules to electronic technologies such as the telephone. The liberal Warren Court ignored the Bill of Rights’ text and original meaning as part of a broader effort to remake the criminal procedure of the Constitution in its own image. We may again be facing a similar revolution, not out of fear of police and prosecutors, but out of unfounded worries about a Big Brother government. How the Roberts Court handles these coming issues will reveal much about how originalist the Court actually is.
In an ideal world, we might expect the political process to make the fundamental choices about the balance between privacy, government power, and the new communication and information technologies. But ever since the Warren Court, the Supreme Court has claimed that the Fourth Amendment gives it a right to set the rules. The text of the Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Scholars and judges generally agree that the Framers of the Fourth Amendment sought to prevent general warrants, which officers of the British Crown had used to search American colonists at any time, for any reason. But during the Warren years, the Justices transformed this ban into a requirement that the government could not conduct a constitutional search without a Fourth Amendment warrant based on probable cause, with a specific description of the persons and places to be searched. In Mapp v. Ohio (1961), the Warren Court extended the notorious exclusionary rule, which excludes from trial any evidence gathered in violation of the Fourth Amendment to all courtrooms throughout the nation. As even the liberal justice Benjamin Cardozo had complained as early as 1926, “the criminal is to go free because the constable has blundered.”
This general rule flies in the face of the text of the Fourth Amendment. Instead of assuming that only searches with warrants satisfy the Constitution, we ought to understand the amendment as composed of two parts: the search-and-seizures clause and the warrants clause. The text of the amendment fundamentally requires reasonable searches. If a search or seizure were reasonable, in the ordinary meaning of the word, then it would be legal, regardless of whether a specific warrant had been issued. Why then the warrant requirement? Such a requirement makes sense if the Framers considered search or seizure supported by a specific, judge-issued warrant to be per se reasonable. A warrant protected constables from lawsuits that, while more common during the Founding, have largely disappeared because of the Court’s immunity doctrines. The amendment recognizes two paths to reasonable, and thus legal, searches and seizures.
To be sure, some originalists defend the Warren Court, in part. They observe that the Pennsylvania and Massachusetts state constitutions contained nearly identical language, with one minor but clarifying difference: The relationship between the two clauses was not an “and” but a “therefore.” This difference would suggest that a specific warrant and reasonableness were one and the same. Further, according to this view, “unreasonable” meant against reason, which meant against the common law. And under the common law at the Founding, a warrant was necessary for a search or seizure unless law enforcement caught someone in the act of committing a felony.
Even if this reading of the Fourth Amendment were correct, the Warren Court made no attempt to base its policymaking on the amendment’s original meaning. Instead, it eagerly sought to impose a regime of judicial supervision over virtually all government searches, even over technologies that would have appeared to be magic to the Framers. No case exemplifies the Court’s approach better than Katz v. United States (1967). In Katz, the Warren Court found that the Fourth Amendment required a warrant to allow the police to place a listening device in a public phone booth. The defendant had used the phone in a public place outside his house, and his call was electronically intangible — the Fourth Amendment protects only tangible things: “persons, houses, papers, and effects.” But the Court found that his conversation fell within a “reasonable expectation of privacy” that was recognized by society. Rather than allowing Congress and the states to decide how much protection to give phone calls or any other electronic means of communication, the justices took for themselves the power to decide what would qualify as privacy.
As they did in other areas we have already examined, the justices assumed the roles of philosopher-kings. How do courts know that society views an expectation of privacy as objectively reasonable? According to Katz, they just do. How will courts determine what society thinks? Opinion polls? And why does the Fourth Amendment expand or contract depending on what society thinks should be private? Katz’s definition of privacy fails not only because judges cannot determine society’s view on privacy (that is, after all, the job of legislatures), but because it is utterly circular. Instead of providing any certainty with clear rules, the federal courts turned themselves into the arbiters of privacy, the definers of the legal scope of every new technology, and the monitors of all police investigations.
Under Chief Justice William Rehnquist, and majorities formed by Reagan and Bush judges, the Supreme Court tried to pare back the Warren Court’s activism. The Rehnquist Court created exceptions for searches conducted under exigent circumstances (such as evidence found while pursuing fleeing felons or protecting the lives of others), in good faith (such as operating under a defective warrant), at random (such as random drug-testing and drunk-driver checkpoints), or in plain view (public spaces, observation on the street). In these decisions, the Rehnquist Court began to recognize that while searches with a warrant were reasonable, not all reasonable searches need a warrant. Some observers believed that the Rehnquist Court might even overturn the exclusionary rule or Katz, but it never took that controversial step.
One of the chief surprises of the Roberts Court is that the justices have turned away from their predecessors’ project of restoring reasonableness as the constitutional touchstone. When faced with the new technologies, a majority of justices have ignored the original understanding of the Fourth Amendment and reverted to the Warren Court’s free-floating approach to privacy and government search. They have placed significant restrictions on the government’s use of new technology for policing and anti-terrorism operations, even as foreign nations escalate their use of cyber weapons to steal valuable data (such as the security and background files of almost every federal employee), hack infrastructure, and interfere with elections. The Court has precipitously plunged into the complexities of technology and privacy, where its competence is not high, instead of allowing the people’s elected representatives to make the fundamental choices.
The early signs of this high-tech activism first emerged under the Rehnquist Court. In Kyllo v. United States (2001), the Court confronted a case where a Department of Interior officer had used a new technology to search for indoor marijuana growers. The officer used a thermal imaging device that could measure the heat emitted by a building, but did not allow agents to see or listen to the activity within the house. In an opinion written by Justice Scalia, an unusual majority composed of Clarence Thomas, David Souter, Ruth Bader Ginsburg, and Stephen Breyer held that the Fourth Amendment prohibited the search, even though past opinions had found that evidence in plain view or in public outside the home did not require a warrant before search. “We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area,’” Scalia wrote, “constitutes a search at least where (as here) the technology in question is not in general public use.” According to the majority, “this assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” The dissent properly observed that the officer observed something outside the house, much as an officer might hear screams coming from within or witness smoke pouring from a window. But unfortunately, the Court thought it should set the standard for advanced sensor technology, rather than allowing the elected branches to decide — either Congress through legislation or the executive branch via regulation.
Despite its conservative reputation, the Roberts Court picked up where the Rehnquist Court’s Kyllo decision left off. In United States v. Jones (2012), the Court addressed police use of a device that used the Global Positioning System to track a car’s movements. Without getting a warrant, Washington, D.C., police attached a device to a suspected drug dealer’s Jeep that reported its movements 24 hours a day for a month. Writing for the majority, Justice Scalia held that the placement of the device constituted a physical invasion of the car. All of the justices agreed that the GPS monitoring device violated the Fourth Amendment, though some justices believed that shorter time periods might satisfy the Constitution. But the Court’s decision did not persuasively address why the GPS device amounted to an illegal search, while the exact same work conducted by human beings – having police officers conduct round-the-clock surveillance – would not violate the Constitution. In both cases, the tracker or the police officer simply follows the public movements of a suspect’s car. The tracking device only saves time and resources, and even intrudes less on privacy because it would observe only the location of the car and not what happened inside. The Court’s approach only invites more intrusive surveillance, such as deploying an aerial drone, which would never come into physical contact with the car, or even need to use enhanced sensors, to follow a suspect and report its movements instead. It is difficult to believe that the justices would forbid the police the use of night vision, in the way they forbade GPS, in public places to pursue fleeing felons. Police could simply follow a car when it travels on public roads and record video of its movements in real time.
The Roberts Court’s most recent opinion, Carpenter v. United States (2018), might prove its most sweeping. In a 5–4 decision, the chief justice joined the Court’s four liberals in finding that a person had an expectation of privacy in records kept by a telephone company of his cellphone’s location. Dissenting Justices Kennedy, Thomas, Alito, and Gorsuch argued that the third-party exception to the Fourth Amendment meant no warrant was required. Under existing doctrine, and the plain text of the amendment, individuals lose their claim to privacy over records or information that they willingly hand over to a third party. Upon this understanding, the Court has allowed warrantless searches such as “pen registers,” which record dialed telephone numbers, and for business records such as credit-card and financial transactions, because the original owner voluntarily gave the information to someone else. In this case, the owner of the cellphone allows the device to constantly “ping” the wireless cellphone network, which notifies the telephone company of its location. Police used the information to show that the suspects — who had, ironically, sought to rob cellphone stores — were present at the time and place of a series of crimes.
Nevertheless, the Court held that such nonprivate information received the protections of the Fourth Amendment. The Court did not find that the means to gather the information violated the text of the Constitution, but that somehow the data violated the Fourth Amendment because the government had come to have too much information. Chief Justice Roberts concluded that such commercial records still fell within the suspect’s “anticipation of privacy in his physical location” because “the time-stamped data provides an intimate window into a person’s life,” not just now, but well into the past. The problem with Chief Justice Roberts’s approach is that it provides no clear rule about how much information is too much information for the government to have, how courts and police are to decide, or why the Fourth Amendment even places limits on how much knowledge the government can have about its citizens’ public activities. Chief Justice Roberts, for example, might believe that the Fourth Amendment would bar government agencies from examining social media, even though individuals choose to blog and post so that many people can see, or financial data, which we transmit to banks and companies. He inevitably “invites courts to make judgments about policy, not law,” as Justice Thomas wrote in dissent.
These cases demonstrate that the Court, though now composed of a conservative majority appointed by Republican presidents, may still drift in a liberal direction. It is most likely to do so when, as here, it leaves behind the constitutional text and history in favor of judgments — no matter how reasonable or popular — that fall within the province of the elected branches of government. Technological advances will continue to pressure the Court to get creative with the Constitution over the intersection of privacy and law enforcement. So the justices have a choice. They can tread the constitutionally dubious path laid out by the Warren Court and invent whatever doctrine or test they think will be optimal from a policy perspective, per Katz and Carpenter.
Or they can leave that to the nation’s policymakers: Congress and the president. There is precedent for the elected branches making decisions related to the intersection of privacy and law enforcement. In 1968, Congress passed the Omnibus Crime Control and Safe Streets Act, in part as a response to Katz, which was handed down just a year earlier. The act allowed the institution best able to weigh the competing policy interests of privacy and safety — the legislature — to make the balancing determination. The Constitution’s federal structure also encourages states to experiment with different balances of privacy and security. Of course, the text and history of the Constitution provide a floor. But if society wishes to provide greater protection for privacy at the cost of some security, it should make that decision through the same political process that it uses for other public policies.
As technological development continues to accelerate, the Court will have a decision to make. Will it usurp the authority of the people and their representatives to decide how to best move forward in this new world, or will it succumb to the temptation of playing platonic guardians who know better how to navigate the future? Time will tell which path the Court chooses, but the Constitution has an answer, if they choose to consult it.
By Senator Ben Sasse (NE) • Wall Street Journal
Brett Kavanaugh has been accused of hating women, hating children, hating clean air, wanting dirty water. He’s been declared an existential threat to the nation. Alumni of Yale Law School, incensed that faculty members at his alma mater praised his selection, wrote a public letter to the school saying: “People will die if Brett Kavanaugh is confirmed.”
It’s predictable now that every Supreme Court confirmation hearing will be a politicized circus. This is because Americans have accepted a bad new theory about how the three branches of government should work—and in particular about how the judiciary operates. Continue reading
By Cameron Cawthorne • Washington Free Beacon
Sen. Joe Manchin (D., W.Va.) on Wednesday praised President Donald Trump’s Supreme Court nominee for having “all the right qualities.” But he stopped short of giving a full endorsement, saying he will listen to his constituents about their opinions of the nominee.
Manchin appeared on West Virginia MetroNews, a statewide radio station, where host Hoppy Kercheval asked him whether he was going to to support nominee Brett Kavanaugh.
“Do you have a lean today?” Kercheval asked.
“No, I don’t have a lean. I think he seems to be a very fine person of high Continue reading
Judge Brett Kavanaugh, President Donald Trump’s new nominee for the Supreme Court, is a whip-smart legal conservative. As a judge in the highest-profile appeals court in the nation, he has shown an exemplary dedication to the rule of law. He has defended the separation of powers against threats coming from multiple directions. He has repeatedly cautioned his colleagues on the bench not to attempt to play a legislative role. He has also insisted on enforcing constitutional structures of accountability on government agencies. He has vindicated the right to free speech (against certain campaign-finance regulations), to bear arms (against the D.C. government’s attempts to implement sweeping bans), and to religious liberty (against a version of the Obama administration’s “contraceptive mandate”). And he has followed Supreme Court precedents even when gently suggesting they should be rethought.
His decisions have also been influential, with the Supreme Court repeatedly adopting his analysis and in one case running several block quotes from his opinion. Some conservatives have faulted the reasoning of a few of his opinions, but usually have not disagreed with the decisions he reached. His ruling on a Continue reading
Justice Anthony Kennedy’s retirement is inarguably a game-changer. It will take some time and depend on who President Donald Trump picks as his replacement to see just how much.
For years now, Kennedy’s been the swing vote on a court closely divided along ideological lines. That only matters infrequently but it’s vitally important when it does, which is why conservatives are jubilant and liberals fearful. Both believe Trump’s next pick will give the court a solid majority composed of five strict constructionists, as they are sometimes called, who would alter American jurisprudence for at least a generation and probably more.
What both sides should remember is there are no guarantees. The right was in relatively the same boat in 1987 when Lewis Powell, a justice appointed by Richard Nixon, stepped down. Like Kennedy, Powell was a swing vote on the Burger Court. It was presumed the man everyone expected to replace him—former United States Solicitor General Robert Bork—would move the court to the right, cementing the victories of Reagan’s Revolution. Continue reading
By David Harsanyi • The Federalist
It’s odd, isn’t it, that so many of the folks who warn us about the authoritarianism of the GOP also happen to support an array of policies that coerce Americans to do things they don’t want to?
Take, for example, the four reliably liberal Supreme Court justices, all of whom believe it’s OK to compel Americans to pay dues to political organizations they disagree with, to coerce them to say things they abhor, and to compel them to create things that undermine their principles.
For some, myself included, the prospects of a court run by people who ignore the Constitution was the best argument for Donald Trump in 2016. The question was, “What’s scarier, a Trump presidency or a progressive Supreme Court?” I imagine the answer is becoming a bit clearer for many conservatives.
In three cases this term — the rulings Continue reading
Taxes: Whatever you think about the issue of taxing internet sales, the simple fact is that the Supreme Court has just guaranteed that people across the country will now be paying more in state taxes. It’s hard for us to see how this is good news.
In its 5-4 decision on South Dakota v. Wayfair, the court overturned two previous rulings that prevented states from taxing sales of out-of-state companies. That meant a catalog company based in Maine didn’t have to navigate 45 state sales-tax laws to figure out how much each customer owed, and then remit that money to the right states.
Brick-and-mortar stores have been trying to lift this ban for decades, because, they say, it unfairly tilts the playing field in favor of catalog and online retailers. According to the Government Accountability Office, this break cost states up to Continue reading
By Kyle Sammin • National Review
Last month, the Supreme Court heard arguments in Gill v. Whitford, which concerns gerrymandering in Wisconsin. Gill is the latest of many instances in which progressives have taken to the courts to advance their electoral cause when they couldn’t win at the polls. The plaintiffs in the case advanced a novel theory, the “efficiency gap,” which purports to varnish their old arguments with a fresh coat of mathematical certainty, replacing politics with math, whether the people agree or not.
One problem with elevating recently invented theories to the level of constitutional law is that they are found nowhere in the Constitution. But even if you are willing to overlook that important detail, there is also the lack of evidence that the “efficiency gap” theory is true. It works for the Gill plaintiffs because they think it would achieve the result they want: more Democratic state legislators. But, as the 2017 House of Delegates elections in Virginia have recently shown us, the theory has serious flaws.
There are many factors that go into the construction of legislative districts, some of which are necessarily at odds with one another. Since the 1840s, Congressional districts have in general been single-member and geographically contiguous. The same typically applies at the state level. There are also Continue reading
By Peter Roff • USNews
My high school biology teacher, Dudley Davis, used to like to remind us all that “figures can’t lie, but liars can figure.” How right he was, especially when politics is somehow involved in the equation, as it is every time districts lines are redrawn for seats in Congress and state legislatures.
The Democrats have suddenly decided this is a problem – and have come up will all kinds of mathematical analyses and formulas to back their assertion up. Their target is Justice Anthony Kennedy who, they hope, will side with the Supreme Court’s Obama and Clinton appointees in a forthcoming case challenging the way the lines were drawn in Wisconsin because the Republicans are allegedly over-represented in the state legislature when compared with the total number of votes they received in the last election. Continue reading
By Peter Roff • USNews
It’s not clear when the Senate started playing politics with Supreme Court nominations. Some say it’s been that way all along, going back at least as far as the time of Chief Justice John Marshall and Marbury vs. Madison.
Others say the confirmation process only became truly venomous after President Ronald Reagan selected federal judge Robert Bork, a former U.S. solicitor general, to fill a seat that would shift the high court’s delicate balance of power in a rightward direction.
Bork was ultimately defeated, not because he was unqualified for the post – according to the standards in place before he was nominated he could only be described as supremely qualified – but because Senate Democrats feared how he would rule. Continue reading
By Ronald A Cass • USAToday
Smart people often say stupid things. #MistakesHappen. But it takes a certain special orientation to repeat obviously false and ridiculous statements over and over. That’s a talent peculiar to politicians.
This talent is frequently on display during Supreme Court confirmation fights. Since the 1970s, every nominee from a Republican president has been attacked, among other things, as hostile to women’s rights and civil rights.
That includes Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy and David Souter — justices who often have been as zealous as any in finding, creating and expanding rights for women and minorities. Constantly being wrong, however, doesn’t prevent the same trope being trotted out as soon as the next nominee is announced. Continue reading