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Supreme Court Archive



March 2016



Garland SCOTUS Pick Good Politics, Bad Substance

Written by , Posted in Liberty & Limited Government, The Courts, Criminal Justice & Tort

President Obama made the relatively obvious strategic choice by nominating a “moderate” judge to fill the late Judge Antonin Scalia’s seat. Although it disappointed the hard left, in particular the race and gender obsessed identity politics crowd, Merrick Garland’s nomination will challenge Republicans’ resolve to deny Obama opportunity to fill the seat before he leaves office.

Had Obama simply appointed another die-hard leftist, Republicans would have risked nothing by waiting him out and seeing what happened during the election. If Hillary won they’d be no worse off, but if a Republican (not named Trump) won they’d get someone more to their liking. And the idea put forth by Democrats that stalling would spark an electoral backlash against the GOP is wishful thinking at best.

But now it’s trickier. Hillary will almost certainly appoint someone to the left of Garland, who Orrin Hatch in 2010 pushed Obama to nominate to the seat eventually filled by Elena Kagan. He and some other Senate Republicans have suggested they might take up Garland’s nomination during the lame duck session after the election. However, if a Democrat wins Obama will likely withdraw the nomination (which Sanders has already publicly asked him to do in the unlikely scenario that he is elected) and allow his predecessor to put forth a Progressive ideologue. That puts pressure on them to

A wildcard is Trump’s populist insurgency. If he is the nominee, Republicans can go ahead and assume Hillary will win – baring the increasingly unlikely scenario that she is indicted – and act accordingly.

Long story short, Obama has forced Republicans to weigh the risks and rewards of accepting his nominee instead of the no-risk position they’d have faced against a more hardline pick.

But while his nomination is good politics, what might the “moderate” Garland mean for liberty if confirmed? Sure, he has some level of bipartisan appeal, but they are mostly on issues in which the parties are both wrong.

As Ilya Shapiro explains, he is simply too deferential to government.

Garland has shown an alarming amount of deference to the government in his years on the important D.C. Circuit, which handles appeals from administrative agencies. I also fear that he won’t represent the check on ever-expanding federal power and executive actions to the same extent as Scalia. And if you’re a civil libertarian, his solicitude for law enforcement makes him much less appealing than other judges who had been under consideration.

Reason’s Damon Root made a similar case:

While Garland is undoubtedly a legal liberal, his record reflects a version of legal liberalism that tends to line up in favor of broad judicial deference to law enforcement and wartime executive power.

In the area of criminal law, for example, Garland’s votes have frequently come down on the side of prosecutors and police. In 2010, when Garland was reported to be under consideration to replace retiring Justice John Paul Stevens, SCOTUSblog founder Tom Goldstein observed that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.”

Likewise, Garland voted in support of the George W. Bush administration’s controversial war on terrorism policies in the Guantanamo detainee case Al Odah v. United States, in which Garland joined the majority opinion holding that enemy combatants held as detainees at the U.S. military facility at Guantanamo Bay were not entitled to habeus corpus protections. The U.S. Supreme Court ultimately overruled that decision, holding in the landmark caseBoumediene v. Bush that Guantanamo detainees do enjoy habeus corpus rights.

Nevertheless, there is at least one issue likely to prove a major obstacle to Garland’s finding broad Republican support, and that is gun control.

Overall, however, deference to government is a common trap for Republicans, who fear “judicial activism” to the point that they would rather Congress and the Executive operate without significant judicial constraints. As such, they might see Garland as a real move in their direction from Obama, when in fact he’s more likely to be another ally of big government and a disappointment for civil liberties.



June 2012



The World Has Not Ended

Written by , Posted in The Courts, Criminal Justice & Tort

I know many liberty advocates are greatly disappointed in today’s Supreme Court ruling, where Chief Justice John Roberts joined the four liberal justices in upholding the individual mandate through the taxing power. But the world has not ended today. The truth of the matter is that not much has changed for our longterm fiscal outlook. It’s still decidedly negative, and would have been no matter what today’s decision held. Because of this, there’s still going to have be another political bite at the health care apple.

First, the way the case was decided shouldn’t be overlooked. The limit that was placed, such that it is, on the reach of the Commerce Clause is not insignificant. With a five member majority believing that Congress has reached the bounds on how far they can stretch the clause, they may begin to chip away at some past Commerce Clause decisions. We can certainly hope so, anyway.

But from a policy perspective, health care remains a mess just as it would have been had the law been struck down. It’s a worse mess now, for sure, but all the central problems with health care are the same regardless of either decision the court could have made: the third party payer problem, the excessive coverage mandates by the state (and now federal) governments, the limitations on interstate insurance purchases. Eventually, these problems will have to be addressed. Obamacare will inevitably fail to reduce the explosive growth in the cost of health care because it does not address these fundamental causes, and that will force the hand of politicians. That is assuming that Obamacare even survives before the mandate takes effect in 2014, which based upon today’s reactions may very well not happen.



June 2012



Scalia on State Sovereignty

Written by , Posted in The Courts, Criminal Justice & Tort

Today’s immigration decision in Arizona v. United States amounted to another nail in the coffin of federalism. Scalia, in his dissent, explained how the decision has abrogated state sovereignty (citations removed for readability):

The United States is an indivisible “Union of sovereign States.” … Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.

As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty…

…There is no doubt that “before the adoption of the constitution of the United States” each State had the authority to “prevent [itself] from being burdened by an influx of persons.” … And the Constitution did not strip the States of that authority. To the contrary, two of the Constitution’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.” …The Articles of Confederation had provided that “the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States.”… This meant that  an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another. To remedy this, the Constitution’s Privileges and  Immunities Clause provided that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” … But if one State had particularly lax citizenship standards, it might still serve as a gateway for the entry of “obnoxious aliens” into other States. This problem was  solved “by authorizing the general government to establish a uniform rule of naturalization throughout the United States.” … In other words, the naturalization power was given to Congress not to abrogate States’ power to exclude those they did not want, but to vindicate it.

Scalia goes on to explain how opposition to the Sedition Act demonstrated doubt on the federal government’s role, but none whatever regarding the State power to control immigration, before offering:

In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States’ traditional role in regulating immigration—and to over look their sovereign prerogative to do so. I accept as a given that State regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit.

Possibility (1) need not be considered here: there is no federal law prohibiting the States’ sovereign power to exclude (assuming federal authority to enact such a law). The mere existence of federal action in the immigration area—and the so-called field preemption arising from that action, upon which the Court’s opinion so heavily relies, ante, at 9–11—cannot be regarded as such a prohibition.We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: the power to exclude. Like elimination of the States’ other inherent sovereign power, immunity from suit, elimination of the States’ sovereign power to exclude requires that “Congress . . . unequivocally expres[s] its intent to abrogate,” …Implicit “field preemption” will not do.

…And it is an assault on logic to say that identifying a removable alien and holding him for federal determination of whether he should be removed “violates the principle that the removal process is entrusted to the discretion of the Federal Government,” … The State’s detention does not represent commencement of the removal process unless the Federal Government makes it so.

But that is not the most important point. The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States,” … It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona.

…The State’s whole complaint—the reason this law was passed and this case has arisen—is that the citizens of Arizona believe federal priorities are too lax. The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition. The Executive’s policy choice of lax federal enforcement does not constitute such a prohibition.

He  then concludes powerfully (emphasis mine):

…The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s
proposed revision of the Immigration Act.7 Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.

…As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem,and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.



April 2012



Obama Desperately Lashes Out at SCOTUS

Written by , Posted in Health Care, Welfare & Entitlements, The Courts, Criminal Justice & Tort

Indicating just how serious the White House is taking the Supreme Court’s review of Obamacare after the government’s dismal performance during oral argument, President Obama has lashed out with a populist and ignorant scolding of the court for daring to consider the Constitutionality of his signature legislation.

“I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress,” President Obama said at a White House event in the Rose Garden today.

“I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step,” Obama said to the White House press.

Is the President really so ignorant of both the facts regarding his legislation (it was not passed with a strong majority, for instance, but instead by an extremely narrow, party-line vote), and the Court’s history? There is nothing unprecedented about overturning unconstitutional legislation. Overturning unconstitutional acts is precisely the job of the court. Or is our law professor President not familiar with Marbury v. Madison?

And as I’ve previously written, judicial activism is a red herring. The job of the court is to actively defend the Constitution.

The President later urged the court to look at the “human element,” as if liberal feel-good intentions trump the Constitution. This is typical of the left, where the ends are frequently used to justify any means. If a law is good and necessary to advance some liberal goal then it must be Constititional by virtue of the fact that the left has deemed it good and necessary. But of course that’s not how it works, and a President supposedly schooled in Constitutional law should know better.



December 2010



The Constitution Versus Constitutional Law

Written by , Posted in The Courts, Criminal Justice & Tort

Professor Kerr at Volokh conspiracy observes a common source of confusion in constitutional debates:

[T]here are two semantic alternatives, and those alternatives can be used to generate a lot of confusion. We can all agree that there are two different questions: (1) How courts actually have interpreted a provision of the Constitution (and thus how a good lower-court judge would apply it) and (2) How courts should have interpreted that provision based on whatever theory of constitutional interpretation a person adopts. My sense is that the most common way to refer to these two different kinds of claims in our legal culture is that (1) describes what the Constitution presently is or means, and that (2) is what the Constitution should be or should mean. That is, what courts have done is descriptive, and what courts should have done is normative. I’m not saying that is objectively correct: I’m just saying that it is the most common choice of wording. At the same time, you can make a different semantic choice by saying that “the Constitution” means what the courts should have said. If you take this semantic option, (1) is what the courts have said the Constitution is, and (2) is what the Constitution is. Now both are descriptive claims: What the courts have done is descriptive of the courts, and what the courts should have done is descriptive of the Constitution.

He goes on to demonstrate, correctly I think, how these two approaches can lead people to talk past one another.

I have an issue with his overall characterization, however. He seems to have characterized any discussions about the Constitution as one that must necessarily be about constitutional law. That is, one is either describing what Constitutional law should be or what it is. This is not surprising given that he is a legal professional, but I think it’s myopic when lawyers often assume that constitutional law is the only relevant avenue by which we understand the Constitution. It is not.

In addition to the two questions he describes, there are two more. 1) What does the Constitution say, and 2) what should it say? Sometimes these questions overlap with his own, but not always. (more…)



May 2010



How Necessary Is Judicial Experience?

Written by , Posted in The Courts, Criminal Justice & Tort

President Obama’s nomination of Elena Kagan for the Supreme Court comes as no surprise.  I’m working on an op-ed already so I’m not going to go into it too much here, but I wanted to touch briefly on one aspect of the nomination: her lack of any judicial experience whatsoever.

No doubt this opens up a potential avenue of attack against her nomination, though she is all but certain to be confirmed.  So how important is judicial experience?  It certainly hasn’t always been a requirement, as a total of 40 Supreme Court Justices have been confirmed after being nominated with no prior experience.  Yet the last such example was William Rehnquist, who was appointed by Nixon almost 40 years ago.

The practice of appointing Supreme Court members without judicial experience has gradually declined since the nation’s founding, when it was quite common.  It’s only natural that the judiciary would institutionalize over time, forming a standard career path or expected procession for judicial nominees. Due to this, the nomination of an Elena Kagan has become somewhat unusual.

I don’t think that fact necessarily means she’s not qualified. There’s a usefulness to the kind of institutionalization the judiciary has experienced and most of the time it ought to be respected, but it’s also easy for such institutions to become insular and stale. A nominee who has not proceeded along that expected institutional path, in other words, might well have a fresh perspective to offer. Regardless of judicial experience, the most important qualifier should continue to be a nominee’s demonstrated fidelity to the Constitution.



May 2010



Identity Politics Trumps Judicial Qualifications At NYT

Written by , Posted in Identity Politics, The Courts, Criminal Justice & Tort

On Saturday the New York Times printed a collection of op-eds from various “legal experts,” describing “the kind of justice the court needs.”  Here’s the list they came up with:

  • A Politician
  • A Veteran
  • A Young Person
  • An Evangelical
  • A Nonbeliver
  • An Immigrant
  • A Gay Person
  • An Asian
  • A State Politico
  • A Great Heart

The scourge of identity politics has so permeated our society that not a single one of these “legal experts” thought to recommend “A Good Judge.”



March 2010



McDonald v. City of Chicago Heard Today

Written by , Posted in Gun Rights, The Courts, Criminal Justice & Tort

The Supreme Court heard oral arguments in McDonald v. City of Chicago today.  The petitioners look to have Heller incorporated via the 14th Amendment and applied to the states.

Aside from this question, the case has also brought up the Privileges or Immunities Clause, which was long ago gutted by the Slaughter-House cases.  Gura and his libertarian faction have sought to overturn these cases and have the 2nd Amendment incorporated via Privileges or Immunities (Cato has a case for reviving P&I), while others have wanted to focus on the simpler case of using Due Process.

Based on accounts of the hearing today, the Court seems unlikely to revisit the Slaughter-House cases.  Thankfully, it is likely to incorporate via Due Process and finally extend 2nd Amendment protections to all Americans.second amendment

Update: Reason has more here and here.



September 2009



Gun Rights Back Before The Supreme Court

Written by , Posted in Gun Rights

A year after the Heller decision found an individual right to bear arms, the Supreme Court is again considering the question of gun rights. The court granted cert. in McDonald v. City of Chicago, and will hear the question of whether or not the 2nd amendment applies to the states, and not just the federal government, through the process of incorporation via the 14th amendment.

Alan Gura, who successfully argued the Heller case, will be the lead attorney on the side of McDonald, a resident of a high-crime Chicago neighborhood whose application for a gun permit was turned down by the city with arguably the toughest restrictions in the country.



September 2006



Family Farm Seized By Eminent Domain

Written by , Posted in Government Meddling, The Courts, Criminal Justice & Tort

The eminent domain boogeyman has been holed up in my closet for a while, giving way to other important matters like that pesky war against radical jihad. Nevertheless, it’s an important issue that hasn’t been dealt with since SCOTUS ruled that this land is neither mine nor yours, but the governments.

By a 5-4 vote, the high court had essentially allowed cities to invoke the power of eminent domain to seize private property not for roads or schools, as is common practice, but for less noble purposes, such as indulging Biff McFranchiser’s discovery that your land is the ideal location from which to sell hamburgers. The cities, which would force you to sell at whatever “fair market” price they demanded on threat of condemnation, would get to keep the toy at the bottom of your Unhappy Meal, in the form of higher tax revenue. Biff, to the cities’ thinking, would generate more income for their coffers than you would by, say, having Pictionary parties or sitting on your couch watching TV.

. . .Piscataway (an Indian term meaning “it is getting dark”) was once a charming farm community. But like so much of America, it is now a charmless depot off the Turnpike, a 19-square-mile blur of box stores, strip malls, and high-density housing. In the middle of this, sprawled over 75 acres, sits the Halper farm, one of the last agricultural tracts in Piscataway.

. . .The township has made feints at taking the Halper property for decades. In 1975, it actually did force the Halpers to sell 25 acres, which Piscataway added to an adjoining park. But the current festivities got underway in earnest in 1998. Around that time, the city purportedly grew nervous that some of its last privately owned green space might fall into the hands of ghastly developers, the kind that are regularly found in bed with the local politicians, making New Jersey a notorious “pay to play” state. Take a ride around the perimeter of the Halper farm, and such concerns don’t seem to have plagued city planner consciences in the past, what with all the quaint mom ‘n’ pop operations like Wal-Mart, Starbucks, and Hollywood Tans that blanket the town like bad wall-to-wall carpeting.

From the look of things, plenty of people are making hefty profits selling Piscataway real estate off to the highest bidder. But to the city’s thinking, the Halpers shouldn’t be among them. They only worked the farm for nearly a century, why should they make money off it? Never mind that they’d received unsolicited offers for their land for decades and managed not to sell. Piscataway officials were coming after their property anyway, vowing to maintain it as “open space.” An incredulous Clements asks what could be “more ‘open space’ than a farm?”