School vouchers violate the First Amendment of the Constitution—or so ruled federal District Judge Solomon Oliver, Jr., in early December. Cleveland’s voucher plan, authorized under state legislation, was nondenominational and permitted students, selected by lot, to choose a school participating in the program and to receive a grant from the state to subsidize the cost...
2036 search results for: Supreme%252BCourt
Post
A Hard Case
Terri Shiavo’s tragic struggle is a hard case, and hard cases, we are taught, make bad law. Her husband, Michael, believes she is in a permanent vegetative state and that she would not have wanted to be kept alive artificially. Her parents, however, believe that she stands a chance of recovery and, further, that, as...
Post
Supreme Subjectivism and Arbitrary Abortion
A half-century ago, in Cooper v. Aaron (1958), the Supreme Court referred to the “basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” as “settled doctrine” and “a permanent and indispensable feature of our constitutional system.” If the Founding Fathers were rolling in their graves in 1958, they...
Post
Last Best Chance to Capture Supreme Court
President Donald Trump and Senate Majority Leader Mitch McConnell are on the cusp of making history. With Trump having named two justices to the U.S. Supreme Court, Neil Gorsuch and Brett Kavanaugh, they have an opening to elevate a third justice to fill the seat of Ruth Bader Ginsburg, thereby securing the constitutionalism of the...
Post
The Left Has Been Doing ‘Oppo Research’ on Conservative Justices for Years
Leftist “opposition researchers” are relentlessly concocting ethics complaints about the Supreme Court’s conservative justices to try to get them to resign or recuse themselves.
Post
“Borking”
“Borking” is back. The eponymous activity first perpetrated on Judge Robert Bork when he was nominated for a seat on the United States Supreme Court is the practice of painting a proposed judicial appointee as consciously demonic, in order to excite particular interest groups to oppose his appointment. Some might oppose Borkees because of honest...
Post
Roe v. Wade and the Confusion of Sen. Collins
Neat! We know what the Supreme Court debate is all about—the debate, that is to say, over who shall take retiring Justice Anthony Kennedy’s seat. The debate is about abortion. Or so declares Sen. Susan Collins, the Republican moderate from Maine, whose vote could prove essential to confirmation of whatever nominee the White House puts...
Post
Limits to Litigation
Gerald N. Rosenberg, an assistant professor of political science and an instructor in law at the University of Chicago, has some simple advice for activists who think a United States Supreme Court ruling is an end-all: not only are you wrong, but your money is better spent out of court than in court. In The...
Post
Republicans and DoMA
Republicans, including President George W. Bush, may have some explaining to do if the U.S. Supreme Court strikes down the Defense of Marriage Act. Suppose a lot of people were counting on you to accomplish something and there were two ways—one hard and one easy—to do it. Which would you choose? If you picked the...
Post
Supremely Uninterested
In every presidential election since 1992, complaints about subpar Republican candidates (George H.W. Bush, Bob Dole, George W. Bush, John McCain, Mitt Romney: The names speak for themselves) have been met with a common refrain: This is the most important election in our lifetime, because of the Supreme Court! Hold your nose and vote for...
Post
Refusing to Do Something New
The Supreme Court attracts the most attention when it does something new, or does something so old that it seems new. For example, the Court’s decision last May declaring that Congress had no authority to enact the Violence Against Women Act under the guise of regulating interstate commerce received plenty of media attention. And since...
Post
Delayed Decision
Homosexual couples in the Bay State are awaiting the unexpectedly delayed decision of the Massachusetts Supreme Judicial Court as to whether they have a constitutional right to be married. This question may not have occurred to the Pilgrims at Plymouth Rock, but, as this issue goes to press, it is anybody’s guess how the court...
Post
Secession Becomes Thinkable
American Secession: The Looming Threat of a National Breakup; by F. H. Buckley; Encounter Books; 184 pp., $23.99 When asked whether a state can constitutionally secede from the United States, Supreme Court Justice Antonin Scalia brushed the question aside, saying the matter was settled by the Civil War. He was wrong. A Zogby poll in 2018 found that...
Post
Back in the News
Partial-birth abortion is back in the news, and for the first time, there appears to be some hope for the pro-life side. Of all the extraordinary things that the United States Supreme Court has done in the past few decades, none matches its 1973 decision in Roe v. Wade. Justice Blackmun’s majority opinion articulated a...
Post
Reining in the Feds
On June 26, 1997, the Supreme Court dodged the constitutional questions surrounding the Line Item Veto Act. In Raines v. Byrd, the Court claimed it had no jurisdiction and dismissed the complaint. Federal courts only have jurisdiction over a dispute if it is a “case” or “controversy.” An element of the case or controversy requirement...
Post
Freedom From Monopolies
In June 2017, the European Union fined Google a record-breaking €2.42 billion for abusing the dominance of its popular search engine while building its online shopping service. Brussels found that Google illegally and artificially endorsed its own price-comparison service in searches. (In plain English, Google’s search results were biased in favor of its own services.) ...
Post
A Bush Nominee
Alberto Gonzales, President Bush’s nominee to replace John Ashcroft as attorney general, is, by all accounts, a skilled lawyer who has achieved a great deal since his humble beginnings as the son of Mexican migrant farmworkers. He also has compiled a track record that should trouble all those who wish to limit abortion, immigration, affirmative...
Post
The Long March Through the Constitution
In the opinion of Marshall DeRosa, one of the contributors to this book, The transition from states’ rights to unitary nationalism, i.e., domestic imperialism, was the most significant development in American politics. This marks one of the worst fears of the framers coming to fruition, tyranny. That is a self-evidently correct judgment. It is also...
Post
Rehabilitating Felix Frankfurter
American law school faculty is often given to unwise and thoughtless hero worship, to which even Felix Frankfurter occasionally succumbed.
Post
Supremes Refuse to Normalize Sleeping Rough
Municipalities can ban homeless encampments from sidewalks, parks and other public areas. Sleeping in the rough is not a constitutionally guaranteed right.
Post
Supreme Court Did Not Place Trump ‘Above the Law’
Trump’s critics are angry because multiple politicized attempts to prevent Trump from holding office again have failed and seem likely to continue to fail.
Post
Down With the Presidency
The presidency must be destroyed. It is the primary evil we face, and the cause of nearly all our woes. It squanders the national wealth and starts unjust wars against foreign peoples that have never done us am harm. It wrecks our families, tramples on our rights, invades our communities, and spies on our bank...
Post
No Longer a Constitution?
What is the relationship between the U.S. Constitution and the current struggle against the perpetrators of jihad against the West? Should the masterminds of, and participants in, the suicide bombings of September 11 and other terrorist acts be protected by the Bill of Rights and the Geneva Conventions? In several important decisions by the U.S....
Post
Fall of a Titan
Pat Buchanan’s new book is another tour de force. Suicide of a Superpower builds on the prophetic warnings first articulated in such earlier books as The Great Betrayal; A Republic, Not an Empire; and, most importantly, Death of the West. The current work exhibits the most famous paleoconservative’s trademark word-crafting verve, encyclopedic knowledge of history...
Post
DOMA’s Fifth Column
In February, President Obama directed the Department of Justice to stop defending Section 3 of the Defense of Marriage Act (DOMA). Immediately, many conservatives decried the announcement. Curt Levy of the Committee for Justice described Obama’s decision as “outrageous” and a “power grab that . . . would allow him to undermine any duly enacted...
Post
The Court in Quandary
When the Fourth Circuit Court of Appeals affirmed the trial court’s preliminary injunction against President Trump’s executive order restricting immigration from certain countries, it cited Trump’s statements about Islam as its rationale. American Muslims challenging the ban had alleged injury of two types: First, the Muslim plaintiffs felt marginalized by the President’s characterizations; second, they...
Post
The States Fight Back
What if the states started to fight back against federal refusal to protect American borders? What if they started challenging, even nullifying, federal actions that promote illegal aliens coming and staying here? Despite the centralization of America since at least 1865, the 50 states retain a surprising amount of autonomy. And oddly enough, the flood...
Post
Courage in Profile
Like Richard A. Epstein’s earlier book Takings, dealing with the defense of property in the Fifth Amendment, his latest one combines legal study and economic analysis with megadoses of political and social theory. Though Epstein explores, for the most part, civil rights legislation aimed at the removal of job discrimination, he devotes the opening section...
Post
Giving Aid and Comfort to the Enemy
The Supreme Court’s ruling in Lawrence v. Texas has created panic and confusion among conservatives. They want to support the three conservative justices who dissented from the Supreme Court’s ruling that struck down Texas’ sodomy statute, but they don’t quite know why. Justice Scalia, they say, must be wrong in thinking that a rational distinction...
Post
Tolerance, Finally
The implosion of the right-wing official opposition Alliance Party under its young evangelical leader Stockwell Day dominates the headlines of most of Canada’s papers and feisty tabloids: Will the “gang of eight” dissident Alliance MPs be hung out to dry? Will Stock get drummed out over some Zionist-sounding remarks that set the tender Canadian sensibilities...
Post
Are All Court-Created Rights Now in Peril?
Progressives are worried that if Roe v. Wade is overturned, all their other agenda-driven, court-created rights will fall as well.
Post
Corporate Rights
Tom Piatak’s contrarian view of the Citizens United Supreme Court decision (“Obama Versus the Supreme Court,” Vital Signs, May) is convincing and well stated. It is useful, however, to realize why conservative headline readers, those who probably did not peruse the actual decision or Justice Stevens’ dissent, are likely to think it a good ruling. ...
Post
Kavanaugh and the Roe Dance
Brett Kavanaugh’s nomination by President Trump for the blessed vacancy left by retiring justice Anthony Kennedy, author of the civilization-defying Obergefell opinion, supplied the heat necessary to cause the vaunted American melting pot to boil over and reveal its rancid contents. Those contents included the innocent limbs and brains of David Daleiden videos, eagerly devoured...
Post
Aristotelian Worms in the Leviathan
Is there such a thing as the proper size of a political order? Westerners have inherited three visions of political size and scale: the Aristotelian polis; the Christian commonwealth; and the Hobbesian modern state. For Aristotle, the point of political order is the cultivation of human excellence. Since virtue cannot be learned except through apprenticeship...
Post
Our Platonic Guardians
In 1986, Justice William Brennan delivered an address in which he called for “state courts to step into the breach” left by what he discerned as a federal contraction of rights and remedies. In other words, those who wish to remake American society along radically egalitarian lines could no longer count on a sympathetic federal...
Post
The Grove City Horror Show
Civil rights activists called Rev. Jerry Falwell “hysterical” for claiming that the recently passed Civil Rights Restoration Act could require churches to hire a “practicing, active homosexual drug addict with AIDS to be a teacher or youth pastor.” His claim was dismissed as a ploy by a televangelist to squeeze more money out of a...
Post
Truth Is on Trial With Kavanaugh
While we await the FBI’s seventh investigation into Judge Brett Kavanaugh’s background, some considerations: All four of Christine Blasey Ford’s witnesses to a party where he allegedly attacked her deny the party ever happened. The first narrative having run its course, the Democratic War Room spun out another dubious claim of sexual assault. The second...
Post
Supreme Court Chaos
Nietzsche got it wrong. God is not dead, but that other mainstay of popular sovereignty and constitutional government in this country, the rule of law, is either finished or on life support. For decades the finest minds in the law schools and on the bench have argued that several hundred years of legal tradition, in...
Post
“Gay Marriage” in California: Back in the Docket
In modern America, the absurd is forced on everyone with the full coercive powers of an omnipotent state—all in the name of “rights.” Same-sex “marriage” first was “legalized” in 2003 when the Massachusetts Supreme Judicial Court drove matrimony off Chappaquiddick’s Dike Bridge and let it drown. In October 2008, Connecticut’s Supreme Court did the same....
Post
Neither Law Nor Justice
A few weeks ago, I was listening to Radio Moscow’s Joe Adamov answering mail-in questions from his North American audience. One query came from somebody in Nova Scotia: How important was Stalin to the Soviet victory in World War II? Adamov’s answer went like this: Stalin’s contribution to the war effort had been nil. Before...
Post
The Price of Justice
In a case that ought to become a conservative rallying cry in the 1992 election campaign, the five commissioners in tiny Lincoln County, Georgia, went to jail last fall for what they saw as protecting the taxpayers’ money. In dignified single file, broken only by an occasional hug from a supporter and the “Bless You,...
Post
Turning Rights into Wrongs
How Democracies Perish was the subject, as well as the title, of an important book by Jean-Francois Revel. M. Revel is a hardheaded journalist who takes little interest in political theory, but he is a keen observer of the corruption into which the states of the West have fallen. When I had drinks with him...
Post
Trump’s an ‘Insurrectionist’—But Hillary Was Exercising Free Speech
When Republicans ask questions about the integrity of our elections it's insurrection. When Democrats do it, it's just politics.
Post
My Favorite Justice
“Every virtue is included in the idea of justice, and every just man is good.” —Theognis John Paul Stevens is the only U.S. Supreme Court justice to have graduated from the law school where I teach; Steven Breyer was one of my law-school teachers; David Souter may be the most adept at arcane constitutional-law doctrine;...
Post
After SCOTUS: Welcoming Apocalypse
Here are my initial thoughts on today’s SCOTUS opinion in Obergefell v. Hodges and three other cases, which effectively makes “same-sex marriage” the law of the land. Nothing substantial has changed. The Supreme Court did not suddenly create more homosexuals or instill a new desire in the hearts of sodomites to flout nature. That was...
Post
Judicial Taxation: The States Respond
The Madison Forum was founded in 1993 by Missouri State Senator Walt Mueller and me for three reasons. First, we wanted to respond to the Supreme Court’s claim in Missouri v. Jenkins (1990) that the federal judiciary’ has the authority to levy or increase taxes. We believe this constitutionally baseless assertion by the Court poses...
Post
The Lone Ranger’s Legacy
After serving for more than three decades on the U.S. Supreme Court, Chief Justice William Rehnquist died on Saturday, September 3, at the age of 80, having lost his battle with thyroid cancer. With Justice Sandra Day O’Connor’s recent announcement of her retirement, there are now two vacant seats on the Court. Just over a...
Post
Quebec Secession
Quebec Secession was the subject of an historic judgment handed down by the supreme court of Canada on August 20, 1998. This question reached the court by a “reference” or “renvoi” initiated by the governor general, in effect a request by the Prime Minister and his cabinet for an advisory opinion. The judgment is not...
Post
Is a Trump Court in the Making?
If Mitch McConnell’s Senate can confirm his new nominee for the Supreme Court, President Donald Trump may have completed the capture of all three branches of the U.S. government for the Republican Party. Not bad for a rookie. And the lamentations on the left are surely justified. For liberalism’s great strategic ally and asset of...
Post
Will the Conservative Momentum at the Supreme Court Continue This Term?
Impending Supreme Court cases give good reason for conservatives and constitutionalists to be cautiously optimistic. Significant conservative victories could be coming soon.