In generations past, the high court ruled unanimously to limit the power of Nixon and Clinton. Now, in more volatile times, it must assess Trump’s claim of unprecedented power.
Supreme Court
Some basic truths and ways to think about ‘free speech’
To make sense of this year’s battles over free speech in Berkeley, Charlottesville and elsewhere, it helps to keep in mind four basic First Amendment truths. First: The First Amendment means what the Supreme Court says it means. To be precise, it means what at least five justices on the current court say it means. … Continue reading »
Scalia’s blind spot
Supreme Court Justice Antonin Scalia’s unexpected death on Feb. 13 has not only cast a cloud of uncertainty and speculation over upcoming court decisions this term, but has also thrown a curveball into an already raucous Presidential campaign season. Given the Supreme Court’s precarious ideological balance, a new court appointee would have the potential to dramatically reshape … Continue reading »
What would Nino do?
A profound irony hangs over Republican politicians, pundits, and presidential candidates as they mourn the unexpected death of Antonin Scalia. They laud him as an intellectual giant for his promotion of Constitutional originalism and statutory textualism. Yet in nearly the same breath, they call for a suspension of the procedures the Constitution explicitly defines, insisting … Continue reading »
Mercury Rising: The Court reverses EPA’s regulation
The Court has just now decided the Michigan case, involving EPA’s mercury regulation. As Ann Carlson explained in an earlier post, a lot was at stake in the case. The Court ruled 5-4 against EPA. This passage seems to be key to the Court’s reasoning: One would not say that it is even rational, never mind “appropriate,” … Continue reading »
Jeb, the Pope and climate change
Jeb Bush’s environmental views seem to be evolving. In a recent speech at Liberty University, he had this to say about environmental protection: “America’s environmental debates, likewise, can be too coldly economical, too sterile of life . . . Christians see in nature and all God’s creatures designs grander than any of man’s own devising, the … Continue reading »
Capital punishment’s loyal officer
It was a zinger worthy of a Presidential debate (and almost certainly just as planned). Justice Samuel Alito, confronted Federal Public Defender Robin Conrad in the midst of her oral argument on April 29 in Glossip v. Gross, a case challenging Oklahoma’s lethal injection execution procedure. Yes. I mean, let’s be honest about what’s going on here. … Continue reading »
Justice Thomas declares war on rulemaking
It didn’t get much attention, but Justice Thomas’s dissent two weeks ago in the Amtrak case was extraordinarily radical, even for him. The case involved a relatively obscure issue about the legal status of Amtrak. Justice Thomas used the occasion for a frontal attack on administrative law, including most of environmental law. The heart of … Continue reading »
Happy endings and promising starts on the environment
In most ways, 2014 was a good year for environmental protection, with progress on several fronts. True, there are warning signs for 2015 — primarily the Republican sweep of the mid-terms and the Supreme Court’s puzzling decision to review toxics regulations for coal-fired power plants. And of course, there were losses as well as victories, … Continue reading »
This challenge to the Endangered Species Act is a case to watch
The federal Endangered Species Act (ESA) is widely known for being the primary law in the United States that focuses on protecting biodiversity, and also for being a “pit bull” of environmental laws that has few exceptions and broad sweep. (For instance, the ESA was a major component of the litigation strategy by environmental groups … Continue reading »
Front page Hobby Lobby photo sends faux feminist message
Sometimes a picture is really worth 1,000 words: it can tell a better story than reams of prose. An example appeared on the front page of The New York Times, above an article reporting on the Supreme Court decision in the Hobby Lobby case. A close reading offers an interpretation of how supporters of Hobby … Continue reading »
Campaign Finance and the Lessons of 1776
$1776. That’s the amount that Alabama businessman Shaun McCutcheon, the plaintiff in the campaign finance case recently decided by the Supreme Court, wanted to donate to every single political candidate he supported in the 2012 elections, but he was thwarted by then current limits on donations. The court decided in McCutcheon’s favor and the limits … Continue reading »
The most brazen invitation to oligarchy in Supreme Court history
This is no April Fool’s joke. Today, in a 5-4 decision written by Chief Justice John Roberts, the Supreme Court in “McCutcheon vs. Federal Election Commission,” went beyond “Citizen’s United” to strike down overall limits on how much an individual may contribute in one election cycle to innumerable federal candidates and to party committees. Overturning … Continue reading »
Money talks and reason walks
A major case under consideration this term by the Supreme Court is McCutcheon v. Federal Election Commission, which, if the appellants are successful, will do for wealthy individuals what Citizens United v. Federal Elections Commission (2010) did for corporations (yes, and labor unions, if any): allow them to give essentially unlimited amounts of money to … Continue reading »
The Republicans of the Supreme Court
In order to fully understand what the five Republican appointees on the Supreme Court have been up to when they make decisions that affect our democracy, as they did last week on voting rights, you need to understand what the Republican Party has been up to. The modern GOP is based on an unlikely coalition … Continue reading »
Shelby County v. Holder: Extend voting rights nationwide
On Tuesday, June 25, the Supreme Court rolled back history when it overturned a key provision of the 1965 Voting Rights Act that was instrumental to nearly 50 years of political and social change. The Court’s decision in Shelby County v. Holder opens the floodgates to new forms of voter suppression and discriminatory electoral tactics. … Continue reading »
Fisher v. University of Texas at Austin
In an important decision, the U.S. Supreme Court, on June 24, in Fisher v. Texas, affirmed the vital principle that universities may pursue the goal of creating a diverse student body, using race as one component of many in admissions. Although the Court vacated the Appeals Court decision, which held that the University of Texas’ … Continue reading »
The Roberts Court’s corporate romance
Forty years ago, before going on the Supreme Court, Lewis Powell wrote a call to arms for business interests, calling on them to counter “enemies of the free enterprise system” like Ralph Nader. Among other things, he recommended a concerted campaign to influence the courts. The campaign seems to have been a success. The New York … Continue reading »
What hath Roberts wrought?
Co-authored with Elisabeth Wehling Democrats all over America are claiming victory in the Chief Justice Roberts’ vote to uphold the constitutionality of the President’s health care law. Conservatives all over America are campaigning all the harder for a president and a congress that will overthrow the law in the future. Thomas Friedman in his New … Continue reading »
The Supreme Court’s health care decision and the problem with relying on the taxing power
Yesterday (June 28th), the Supreme Court finally revealed its decision in the health care cases. A majority of the Justices voted to uphold the constitutionality of most of the Affordable Care Act (aka, “Obamacare”). There are many summaries and analyses of the decision available online. I won’t attempt anything approaching a summary here. Instead, I’ll … Continue reading »