I still think the most interesting thing about the nominations and confirmations in 2005 and early 2006 has been the fact that Justice Sandra Day O'Connor submitted her resignation effective only upon her successor's confirmation. But unless she resigns, there is no vacancy, so there could be no nominations. If I had been the President of the United States, I would have sent back a letter telling her to resign or don't, but not to try to have it both ways.
Outdated material about Samuel Alito and Harriet Miers has been moved to this page in order to save bandwidth and reduce clutter.
Look on this page for information about the Supreme Court's handling of the gun ban in the District of Columbia.
The recent case of Boumediene v. Bush is discussed here.
As always...
The next president could reshape the Supreme Court. The winner of the McCain-Obama showdown in November may have the task of replacing two or three justices of the U.S. Supreme Court. Justices John Paul Stevens, 88, and Ruth Bader Ginsburg, 75, are considered likely to retire from the court within the next four years. Justice David Souter, 68, is reported to be eager to return to his New Hampshire home.
Supreme Courtier? Have you ever had a boss who treated you like a child, second-guessed you, reworked whatever you did so that you felt no ownership of the final product? As a result, did you take your job less and less seriously precisely because you knew that whatever you produced wouldn't really be yours anyway? Well, the Supreme Court is the boss, and Congress is the Dilbert.
The Republic of Kennedy: When you consider that the court is pretty well divided between four liberals and four conservatives with Justice Kennedy swinging from one side to another as the spirit moves him, we now enjoy a Republic of Kennedy. All this fuss and bother about the presidential race is misplaced. The most powerful man in the land is someone most Americans couldn't pick out of a lineup.
Justice Anthony Kennedy and Our Schizophrenic Supreme Court: Conservatives were, rightly, thrilled by the recent Supreme Court decision that affirmed our constitutional right to keep and bear arms. Not so fast. Of the four important decisions the court has rendered in this term, three of them have gone the wrong way. Let's first take a brief look at each of these four cases.
An Indecent Decision. Earlier this term, Kennedy wrote the 5-4 opinion that extended habeas corpus rights to foreigners captured abroad and held on foreign soil. Such a right had never been granted in American history. This was a victory for the terrorists held at Camp Delta in Guantanamo Bay, Cuba, who now can challenge their detention in federal courts. For his next trick, Kennedy wrote last week another 5-4 opinion declaring the death penalty for child rapists unconstitutional.
Supreme Court's Embarrassing Error. A blogger, Caaflog, caught Justice Kennedy having made the biggest error in modern Supreme Court history that I can recall. In the death penalty child rape case, when he said that the death penalty for this crime was "against evolving standards" he overlooked, what a blogger found, that in 2006 Congress itself had made rape of a child a crime subject to the death penalty under the military code.
The Supreme Court Can't Ignore the Facts. The factual basis of the [Kennedy v. Louisiana] ruling was in error. The court overlooked the amendment to the Uniform Code of Military Justice — passed by Congress and signed into law by President Bush in 2006 — which imposed capital punishment for child rape. So much for the national consensus. On July 21, Louisiana filed a petition for rehearing. Will the Supreme Court grant such a request? It has in the past.
Justices strike down 'millionaire's amendment'. The Supreme Court on Thursday [6/26/2008] struck down the "millionaire's amendment," a campaign finance law intended to level the field for House candidates facing wealthy opponents who spend lots of their own money. … The justices, in a 5-4 ruling that reflects skepticism of campaign finance overhauls, said the law violates the First Amendment.
High Court Deals Blow To Campaign Finance Law. The Supreme Court dealt another blow yesterday [6/26/2008] to the landmark 2002 campaign finance law crafted by Sens. John McCain and Russell Feingold, declaring unconstitutional a provision that eased fundraising restrictions for political candidates running against wealthy opponents who were bankrolling their own bids for federal office.
High court strikes down gun ban. The U.S. Supreme Court ruled Thursday that a sweeping ban on handguns in the nation's capital violated the Second Amendment right to bear arms. The justices struck down the ban in a 5-4 decision, with Justice Antonin Scalia writing the opinion for the majority. Washington Mayor Adrian Fenty said he was disappointed in the ruling but will give the district's police department 21 days to implement a process for registering handguns. It still will be illegal to carry handguns outside the home, and all pistols must be registered with police.
Supreme Court Shoots Down D.C. Gun Ban. The Supreme Court has overturned Washington, D.C.'s strict gun ban. Writing for the 5-4 majority, Justice Antonin Scalia said that the Constitution protects an individual's right to keep and carry a gun. The decision will affect gun control laws across the country.
Scalia the Grammarian. There will be a great deal to say about today's landmark Supreme Court decision, the first in American history that explicitly finds in the Constitution a personal right to keep and bear arms and overturns a 32-year-old ban on handguns in the District of Columbia. What strikes this non-lawyer, as I read Justice Scalia's majority opinion, is how anchored it is in the elementary logic of grammar.
Read the full text of District Of Columbia et al. v. Heller.
Liberty Wins a Big One. Liberals, who hate guns almost as much as they hate cars, got a well-deserved lesson in Second Amendment rights when the Supreme Court spit in their face by ruling that the Constitution really does guarantee the right of Americans to own guns. The ruling, which struck down the District of Columbia?s laws almost totally restricting handgun ownership, affirmed the traditional view that the Second Amendment means exactly what it says when it guarantees "the right of the people to keep and bear arms."
An Individual Right Rekindled. Dick Heller is a special police offer in the District of Columbia who patrols the Federal Judicial Center. He is permitted to carry a handgun while on duty during the day and wished to possess one at his home to defend himself and his family. He applied for a permit, but was denied: the city's law bars the registration of handguns to nearly all private citizens.
Bull's-Eye! In a 5-4 decision written by Antonin Scalia, the kind of justice John McCain says he'd appoint, the high court overturned a draconian District of Columbia law enacted 32 years ago that barred private ownership of handguns. The court ruled the Second Amendment indeed protected an individual right to possess a firearm unconnected with service in a militia and to use that firearm for traditionally lawful purposes, such as self-defense within the home.
The Court defers to plain language. No sulking conservative can imagine the Second Amendment would have been upheld if Republican presidents had not appointed the five members of yesterday's majority. Who can doubt that Jimmy Carter, Walter Mondale, Michael Dukakis, Al Gore, John Kerry and ol' Bubba would have appointed judges dedicated to throwing out the constitutional guarantee upheld yesterday?
Silver Bullet. The 2008 Supreme Court term ended with a bang yesterday as the Justices issued their most important ruling ever in upholding an individual right to bear arms. The dismaying surprise is that the Second Amendment came within a single vote of becoming a dead Constitutional letter.
The Meaning of the DC Gun Case Decision: Justice Antonin Scalia's opinion for the 5-4 majority of the Supreme Court in the recent landmark Second Amendment gun case, District of Columbia v. Heller, is a major contribution to American constitutional law. It is at once a rich exposition of the Second Amendment's historical context, a textbook demonstration of Originalist analysis of an important constitutional amendment, a surgical dissection of virtually every word of the amendment, and a point-by-point refutation of the dissents of Justice Stevens….
Right to Bear Arms: Washington, D.C., will become a safer place to live and work thanks to the U.S. Supreme Court ruling Thursday [6/26/2008] against the city's absolute ban on handguns. The Court ruled that the Second Amendment's guarantee of the right to bear arms is an individual right, not just one that permits states to maintain militias, striking down one of the nation's toughest anti-gun laws. As someone who lived in the District at the time the city imposed its ban 32 years ago, I say it's about time.
Americans have right to guns under landmark ruling. Individual Americans have a right to own guns, the Supreme Court ruled on Thursday for the first time in the country's history, striking down a strict gun control law in the U.S. capital. The landmark 5-4 ruling marked the first time in nearly 70 years the high court has addressed the Second Amendment of the U.S. Constitution. It rejected the argument the right to keep and bear arms was tied to service in a state militia.
Court takes giant step backward. I often wonder if Antonin Scalia might not be more comfortable in another century, past not future, one not touched by the miseries and dangers of urbanization. I certainly think we would be if he were. Maybe most fittingly he would do well in the 18th century where a firearm larger than a one-shot pistol and a long rifle could not be imagined, especially by those who were drafting a plan for the rest of us to live by forever and where citizen soldiers in local militias were the national defense.
Rights, Arms and the Man. "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Because of the inclusion of the M-word (militia), gun-control advocates have long argued that the Second Amendment applies to militia, but not to individual citizens. Last week, the Supreme Court put an end to that nonsense when it issued a decision overturning the District of Columbia's 32-year-old ban on handguns — even in citizens' own homes.
Citizens' Rights Reloaded. Because of the high court's decision to affirm the Second Amendment as an individual right, local, state and federal governments will have a much harder time infringing on citizens' rights to protect themselves and their families. This is the biggest victory for individual rights in decades.
How a Young Lawyer Saved the Second Amendment: The case that became D.C. v. Heller was the brainchild of three lawyers at a pair of libertarian organizations, the Cato Institute and the Institute for Justice. All were busy with other matters, so they hired Mr. [Alan] Gura.
High court: Don't execute child rapists. The Supreme Court on Wednesday outlawed executions of people convicted of raping a child. … In a 5-4 vote, the court said the Louisiana law allowing the death penalty to be imposed for raping a child violates the Constitution's ban on cruel and unusual punishment.
Court rejects death penalty for raping children. The Supreme Court on Wednesday outlawed executions of people convicted of raping a child. In a 5-4 vote, the court said the Louisiana law allowing the death penalty to be imposed in such cases violates the Constitution's ban on cruel and unusual punishment.
Supreme Court Rejects Death Penalty for Child Rape. The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled Wednesday [6/25/2008]. The 5-to-4 decision overturned death penalty laws in Louisiana and five other states. The only two men in the country who have been sentenced to death for the crime of child rape, both in Louisiana, will receive new sentences of life without parole.
The Editor says...
I guess the death penalty is reserved for someone who has committed a really serious crime.
Evolving Standards of Indecency: The Supreme Court's barring of the death penalty for child rapists in Kennedy v. Louisiana underscores the hazards in the court's abandonment of moral absolutes in favor of "evolving standards of decency" and the court's unbridled arrogance in substituting its subjective judgment for the legislatively enacted will of the people.
Supremely Screwed Up. [Scroll down] As it happened, not just the Kennedy majority failed to notice the existence of this federal law. So did the four dissenting justices. So did petitioner Kennedy and respondent Louisana. Moreover, none of the 10 friends of the court in the case, not even one, cited the law. Neither did the solicitor general's office...
Supreme Court Confirmation Hearings and the Senate. For most of our history, despite the Supreme Court's important role, Justices nominated by a President were subject to little scrutiny beyond character and ability. As several Senate Judiciary Committee members noted in the confirmation of Chief Justice Roberts, before 1955 nominees almost never appeared before the Committee. The nomination was simply voted on in the Senate.
John McCain and Barack Obama: Two visions of the Supreme Court. John McCain and Barack Obama, the two leading presidential candidates, have set out sharply contrasting views on the role of the Supreme Court and the kind of justices they would appoint.
Top 10 Things to Expect From Obama Court: (# 10.) Expanding and perpetuating the use of racial preferences … (# 6.) Banning the death penalty … (# 4.) Creating new constitutional rights to massive government welfare and medical care programs…
A Cautious Right Turn. The [Supreme] Court has moved notably back to the center, but its alleged new "conservatism" is more in temperament than politics. You wouldn't know this from the horror masks brandished on the political left, which is reacting as if the Court had laid waste to a generation of precedents.
Has the Court Moved Right? The mainstream media are quick to proclaim that the Supreme Court is moving radically to the right, but a closer look reveals that the court has quite a way to go before it can be considered truly conservative.
'Conservative' court actually may be more liberal. The nation's highest court returns to work Monday [10/1/2007], ready to grapple with cases that test the constitutionality of lethal injection, the legal rights of suspected terrorists and the legitimacy of hotly contested voter ID laws in more than two dozen states.
Stare Decisis: Not Quite What Senator Schumer Would Have You Believe. It is the substantive rulings which the critics dislike, not the legal reasoning. The charge amounts to a bit of legerdemain aimed at a public not familiar with the doctrine, a public whose principal source of information about the Court and its rulings is a media unwilling or unable to examine the charge on its merits. This one-two-punch by Democrats and the media has created a distorted view among the public of the Court's methods and rulings.
Expect Big Labor Power Grabs Next Year. Focused on raising forced-union-dues dollars, union officials have made expanding Big Labor's government-granted special privileges a top priority. So, although the Supreme Court's decision in Chamber v. Brown may slow coercive union organizing down from its current breakneck speed, workers likely face a renewed assault on their freedom of association after the November elections.
Stare Decisis: Eight Recent Cases. The recent claims that newly-confirmed Chief Justice Roberts and Justice Alito were ignoring precedent, contrary to their confirmation hearings pledges, are partisan chum hurled into the waters where swim the most radical members of the Democratic base. … I find no basis for such a charge in any of these opinions.
Boiled Frog Alert ...
High Court Rules on Illegal Searches. The Supreme Court affirmed Wednesday [4/23/2008] that police have the power to conduct searches and seize evidence, even when done during an arrest that turns out to have violated state law.
The Editor says...
The way I see it, this ruling opens the door for the police to make "traffic stops" for no reason at all, hoping to find drugs or firearms in someone's car. This ruling effectively drains the life out of the Fourth Amendment.
Texas argues global courts, Bush have no say in state case. Neither the president nor an international court can tell Texas how to treat criminal defendants, the state's top Supreme Court advocate told the justices in arguments yesterday [10/10/2007] over the fate of a Mexican citizen on death row.
Read the details of the case in this article.
Houston case gets lively Supreme Court hearing. President Bush and Texas, the state he once led, were on opposite sides of a Supreme Court dispute today [10/10/2007] over the role of international law and claims of executive power in the case of a Mexican on death row for rape and murder in Houston.
Sparks Fly at the Supreme Court. In a 5-4 decision, the Supreme Court ruled that achieving "diversity" is too weak an argument to justify shuffling kids around on the basis of skin color. Though Chief Justice John Roberts's opinion is couched in language of precedent and respect for existing law, this case is a clean win for individualists — i.e., for those who oppose racial preferences or racial handicaps.
Imperial, exclusive Supreme Court of the United States. From their high seats above us all, both these Justices ignore that they serve on a public court, paid by taxpayer funds; and because of increasingly limited coverage of the Supreme Court in newspapers and on both broadcast and cable television, many Americans know little of these nine distant arbiters of our rights and liberties in so many spheres of our existence.
Why conservative justices go liberal. Most of the leading conservative intellectuals were at least liberal, and often radical, in their youth. That includes Milton Friedman, Friedrich Hayek and the neoconservative movement. In politics, the leading conservative figure of the 20th century — Ronald Reagan — was a liberal in his early years. On the Supreme Court of the United States, however, the movement has been in the opposite direction.
One More Supreme Court Appointment for President Bush? Conservatives stand a strong chance of securing at least one more seat on the U.S. Supreme Court before President Bush leaves office, according to one conservative court-watcher. Ed Whelan, president of the Ethics and Public Policy Center, didn't say who might be the next justice to leave, but speculation has recently swirled around Associate Justice John Paul Stevens, a Gerald Ford appointee, who will turn 87 in April.
Now she tells us. The latest critic of a Supreme Court ruling turns out to be the justice who supplied the key vote in its favor: Sandra Day O'Connor. … The case was decided 5 to 4, and Justice O'Connor's concurring opinion made all the difference. Renowned in her time on the court as its swing vote, she's now swinging back.
A justice gets her swing back. The latest critic of a Supreme Court ruling turns out to be the justice who supplied the key vote in its favor: Sandra Day O'Connor.
Rules are More Important Than Personalities. We have a set of rules that are known, neutral and intended to be durable. Those rules were created by our founders and embodied in the U.S. Constitution. Those rules have been weakened by a Congress of both parties that picks winners and losers in the game of life. The U.S. Supreme Court, which was intended to be a neutral referee, has forsaken that role and become a participant. All of this means we can expect a future of bitterly fought elections and enhanced conflict.
In the 1960's it was called "integration".
Justice or racism? The Seattle School District decided to engineer a precise racial balance in its most popular — because much better — high schools, which are chosen by more students than they can accommodate. The district wanted each oversubscribed school to reflect the entire system's ratio of 40 percent whites and 60 percent nonwhites. So it adopted a race-based admission plan to shape the schools' "diversity."
Spitzer Argues For Race-Based School Admission. The Supreme Court is set to hear two cases today [12/04/2006] that call on it to decide whether school officials can assign students to individual public schools according to race to further school integration efforts.
Supreme Farce: It might be a hilarious comedy routine to have a group of highly educated judges solemnly expounding on something that everybody knows to be utter nonsense. But it isn't nearly as funny when this solemn discourse about nonsense takes place on the Supreme Court of the United States — and when most people are unaware of what nonsense the learned justices are talking.
Coming full circle to 'separate but equal'. A conservative majority of the Supreme Court appears poised to undercut Brown v. Board of Education, the historic ruling that outlawed racial segregation in schools and sparked the civil rights movement. This is hard to fathom, since the country has spent more than 50 years trying to integrate schools and improve opportunities for children who suffer racial discrimination. But an anti-Brown ruling early next year shouldn't surprise anyone.
Racial Fairness on Trial. Affirmative action is on trial at the Supreme Court. Judging by the chilly reception that five of the nine justices gave it during oral arguments this week, the only question left is how far the court will go in overruling racial preferences as a constitutional way to remedy the historical damage done by racial preferences.
Supreme farce, Part II. In a recent interview, Justice Stephen Breyer claimed that laws are "not clear," so that judges are forced to base their decisions on the "values" they see behind the laws, rather than the specific words in those laws. "Not clear" is an old ploy and "values" are a blank check.
Questions for Obama: Voting against the confirmation of Chief Justice John Roberts, [Obama] said: Deciding "truly difficult cases" should involve "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy." Is that not essentially how Chief Justice Roger Taney decided the Dred Scott case?
The Final Six Reasons Not To Vote For Obama: [Scroll down slowly] One of the most important reasons to vote against Mr. Obama involves his court appointments. He voted against confirming Chief Justice Roberts and Associate Justice Alito. This was wrong as both of these jurists were highly qualified and he was voting against them only because they follow the U.S. Constitution rather than make law from the bench. Mr. Obama would appoint justices of the Associate Justice Ginsburg variety, a leftist who is more interested in her concept of what the law ought to be rather than the concepts of the founding founders as expressed in the Constitution.
Cruel and Unusual Punishment? This is why "original intent" of the Founders is important to consider, because what they meant by the phrase and what we think we believe about it differs considerably. At the time the Bill of Rights was written, the authors specifically sought to ban such execution methods as burning at the stake, crucifixion and breaking on the wheel. In modern times, the Supreme Court has decided cases that redefine what the Founders meant.
Taking a Molecule to Court: The Supreme Court, by agreeing to hear a case on whether the Environmental Protection Agency (EPA) must take steps to reduce carbon dioxide emissions, will finally judge on the alleged threat of global warming. The stakes are huge. Should the Court find in favor of the plaintiffs, it would put the EPA in control of the U.S. economy for the foreseeable future.
High Court Hears Global Warming Hoax. This week the Supreme Court heard arguments in Massachusetts v. Environmental Protection Agency, a lawsuit brought by a coalition of 12 states, the cities of New York, Baltimore, and Washington, D.C., and environmental groups including the Environmental Defense Fund, Greenpeace and the Sierra Club. The case is an attempt to force the U.S. Environmental Protection Agency (EPA) to regulate carbon dioxide as a dangerous air pollutant under the definition of the Clean Air Act.
The Right to Breathe: The United States Supreme Court this month heard arguments on the issue of whether carbon dioxide should be identified as a pollutant and be brought into the Environmental Protection Agency enforcement policies of the Clean Air Act. Webster describes a pollutant as a harmful chemical or waste material discharged into water or the atmosphere. Carbon dioxide, as it exists in the earth's atmosphere, has never been proven harmful. It is not a waste material. Carbon dioxide just happens to be the single most important part of the Earth's atmosphere as it relates to life on this planet.
Note: Much more information about the carbon dioxide debate can be found on this page.
Court finds a right to jihad in the Constitution. The U.S. Supreme Court has now blown a hole in the animating principle behind the Geneva Conventions by choosing to elevate an enemy that disdains the laws of war in order to facilitate the bombing of civilian targets and the beheading of individuals. The argument made by Justice John Paul Stevens is an Alice-In-Jihadland ruling that stands the Conventions on their head in order to give words the precise opposite of their plain meaning and intent.
Liberal Judges Fire another Bullet into US Anti-Terrorist Efforts. Apparently celebrating its first major victory over the US citizenry (SCOTUS' Kelo decision to do away with the 5th Amendment to the US Constitution and allow private developers to steal American citizens' property was only a year ago), on Thursday [6/29/2006] the US Supreme Court ruled that the President of the United States cannot order terrorist enemy combatants to be tried before a military tribunal. The court wrongly cited the rules according to the Geneva Convention. This unfathomable reasoning, using the Geneva Convention as the basis for its decision, does not apply to this situation.
Supreme Court Upholds Arizona Insanity Law. The Supreme Court ruled Thursday [6/29/2006] that Arizona's law on the insanity defense is not too restrictive in limiting evidence defendants can present at trial.
Court limits self-representation for mentally ill. Mentally ill criminal defendants don't have the same constitutional rights as everyone else, the Supreme Court said Thursday [6/19/2008] in carving out an exception to the right to represent yourself.
The U.S. Constitution: dead or alive? The "living Constitution" is the notion that the meaning of the Constitution changes over time. One day nine justices simply wake up, and when they arrive at work that day, they discover that the words in the document they studied their entire adult lives suddenly mean something new and fresh.
Obama's Supreme Court: Those who subscribe to Living Constitution ideology believe that the founding principles of this Nation are passé, that the Declaration of Independence's ringing endorsement of limited government and individual rights is outdated, that the Constitution's creation of a representative republic is from a long past moment in history, and that the Bill of Rights is not a restraint on government but rather a source of newly invented "rights."
Psychoanalyzing the loony left: The thing that has me stumped is trying to figure out what leftists want. For example, when left-wing judges take it upon themselves to legislate from the bench, liberals are quick to say that the Constitution is a living document and that it has to evolve to accommodate a changing world. However, whenever a conservative suggests that the 14th amendment, which grants automatic citizenship to any person born in America, ought to be changed in order to deny that gift to those born to illegal aliens, those same people carry on as if the Constitution, like the Ten Commandments, was carved in stone.
Scalia slams 'living' document philosophy: The Constitution is an enduring document but not a "living" one, and its meaning must be protected and not repeatedly altered to suit the whims of society, says U.S. Supreme Court Justice Antonin Scalia.
Judicial supremacists strike again. Who could have guessed that Osama bin Laden's driver/bodyguard would be one of the privileged few to be granted a hearing by the high and mighty U.S. Supreme Court. After refusing to hear appeals from thousands of Americans during the past year, the court's liberals jumped at a chance to rule that President George W. Bush was wrong.
Police Search May Divide the Supreme Court. Supreme Court justices sparred Thursday [5/18/2006] over police searches in a case that could signal a change in direction for the court after the arrival of two new conservative members.
Revisiting affirmative action: The Supreme Court has decided to revisit the issue of race-based admissions, this time in K-12 schools. In 2003, in a pair of cases involving the University of Michigan, the Court handed down decisions that pleased neither side in the debate. … Once again, the Court is faced with having to decide whether a little bit of racial discrimination is OK, so long as it's employed in the service of achieving "diversity."
Paganism gaining popularity in prison. No national statistics are kept on how many inmates follow Asatru. But experts say its popularity enjoyed a boost from the Supreme Court, which last year sided with an Asatru inmate by upholding a federal law requiring state prisons to accommodate prisoners' religious affiliations.
Court Eases 'No Knock' Search Ban. The Constitution does not require the government to forfeit evidence gathered through illegal "no knock" searches, the Supreme Court ruled yesterday [6/15/2006], in a far-reaching ruling that could encourage police with search warrants to conduct more aggressive raids.
Ginsburg's global constitution: The Framers intended to make it so difficult to actually "perfect" the Constitution … that they required three-fourths of the states to ratify any proposed amendment. By contrast, Ginsburg believes five justices can amend the Constitution if their personal opinions happen to coincide — and if they can gain sufficient ideological reinforcement, if not actual authority, from foreign courts.
Some Legal Activists Have Hearts Set on 'True Liberal'. If Obama had the opportunity to make an appointment, it would be only the fourth nomination from a Democratic president in more than 40 years. And for activists on the left, it could signal the opportunity to create a new dynamic for the court. "It is a court with no true liberal on it, the most conservative court in 75 years," said Geoffrey Stone, a law professor at the University of Chicago, where Obama once taught constitutional law.
The Editor asks...
Ruth Bader Ginsburg is not a "true" liberal? That's what the Washington Post would have us believe.
SCOTUS Tells Foreign Court to Butt Out. Over the past few years many Americans have become deeply concerned that judges have begun relying more and more on foreign law to decide questions of U.S. constitutional law. One doesn't have to be a constitutional scholar to object to foreign laws and foreign courts — laws that are not enacted by our democratic g government and judges who are not selected as our Constitution provides — ruling on Americans' rights and the powers of American government. These concerns are largely well founded….
A Visit To The Supreme Court. She was a diminutive woman; rather what some authors would have called bird-like a half-century or more ago. But there was something predatory about her manner, and far from being sociable; she seemed to be wishing to be somewhere else. … Still, there was the impression that despite your greater height, she was still talking down to you.
Supreme Court backs searches in some cases. The Supreme Court ruled Wednesday [3/22/2006] that police cannot search a home when one resident invites them in but another tells them to go away, provoking a strong objection from the new chief justice about the possible impact on battered women. The 5-3 decision put new limits on officers who want to search for evidence of a crime without obtaining a warrant first.
An epic battle — PLEASE. In a pre-9/11 world, there was no more important issue, for conservatives or liberals, than who would be making [appointments to the Supreme Court]. The future of our constitutional republic depended on this election; it depended on whether generations of laws would be made by judicial activists, or whether our Constitution would be restored as the supreme law of the land.
It's time to reclaim our republic from the Supreme Court. There are those in this country who truly believe that the Supreme Court is the repository of all that is good and just. There are those who believe that the Supreme Court should be the ultimate and exclusive interpreter of the Constitution because members of the Court are wiser, fairer, more consistent and more far-seeing than members of the general public. And then there are those who actually look at the jurisprudence of the Court.
Holding Court: Abortion is only one of countless areas in which a mere nine lawyers in robes have imposed their personal policy preferences on the rest of us. The court has conferred due process rights on terrorists detained at Guantanamo Bay and benefits on illegal immigrants. It has ruled that animated cyberspace child pornography is protected speech, but certain broadcast ads aired before elections are illegal; it has held that the Ten Commandments can't be displayed in a public building, but they can be displayed outside a public building; and the court has invented rationales to skirt the Constitution, such as using foreign law to strike down juvenile death penalty statutes in over a dozen states.
Ginsburg: 'Any Woman Will Not Do' for Job. Ruth Bader Ginsburg told an audience Wednesday [9/21/2005] that she doesn't like the idea of being the only female justice on the Supreme Court. But in choosing to fill one of the two open positions on the court, "any woman will not do," she said. There are "some women who might be appointed who would not advance human rights or women's rights," Ginsburg told those gathered at the New York City Bar Association.
Editor's comment: Ms. Ginsburg apparently doesn't understand (or believe) that Supreme Court Justices are not appointed for life to advance human rights, women's rights, or any other issue. The purpose of the Supreme Court is to weigh laws and lower court decisions against the Constitution. The Justices are not there to create new rights or to advance utopian ideas of their own.
And suppose someone is appointed to the court who disagrees with everything Ms. Ginsburg believes. Aren't the liberals constantly promoting "diversity in the workplace?"
Table of Past and Present Supreme Court Justices.
Ginsburg is linked to liberal group: Supreme Court Justice Ruth Bader Ginsburg has lent her name and presence to a lecture series cosponsored by the liberal NOW Legal Defense and Education Fund, an advocacy group that often argues before the court in support of women's rights that the justice embraces.
Expanding Rights vs. Protecting Rights. As the war for the Supreme Court heats up, it's important for conservatives to understand why the nominations matter. Many conservatives have seized on issues where the Court has played, or might play, a decisive role — such as abortion, gay marriage, or the separation between church and state. While these issues are important, they're only part of a broader trend: The left has been fighting the culture wars through the courts for more than three decades.
At this point, the editor interjects his personal views:
The left uses the courts to advance liberalism because the voters consistently reject their ideas. This is one of the reasons that liberals rely on the votes of dead and fictitious people, felons, and "motor voters."
Supreme quotas? It wouldn't matter if all nine Justices of the Supreme Court were women, if these were the nine best people available. But to decide in advance that you were going to appoint a woman and then look only among women for a nominee was a dangerous gamble with a court that has become dangerous enough otherwise.
Editor's comment: The following article describes an important legal question that nobody seems concerned about. Justice O'Connor has submitted her retirement notice, yet she still serves on the Supreme Court, pending the confirmation of her replacement. But until she leaves, there is no vacancy to fill.
Sandy's Catch-22. Ed Whelan speculates about the effects of a delay in Judge Roberts's confirmation, and along the way he notes that Justice O'Connor's "resignation is effective only upon her successor's confirmation." I'm not sure that is altogether true. It may be what O'Connor said, but that doesn't make it so.
Bench Memos. Additional articles about the Supreme Court nomination process.
Flailing and Flummoxed: Borking has met its match. Borking was pioneered by Ted Kennedy, of course, when Judge Robert Bork was nominated to the court by President Reagan in 1987. It is a practice that involves destroying conservative nominees in all-out smear-fests.
Why we need conservative judges: Citizens don't need their lives defined by others. They need protection. And the vulnerable particularly need protection. Protection means having a legal code that has integrity and having judges that see their job as relating to that law to protect people from the unjust encroachment by others. I would say a society of tyranny is one in which it is never clear what the law is and how I am protected. Ironically, this also characterizes a liberal society. This couldn't have been driven home more clearly than by the Supreme Court's recent eminent-domain decision in the Kelso v. City of New London case.
Thanks for That Subpoena! Quicker than you could say "chilling effects," "the sanctity of the First Amendment," and the "public's right to know," journalists were blubbering that unchecked subpoena power was poised to destroy the press. The current crying jag could come to a halt, however, if the Supreme Court agrees to hear the elegant petition on behalf of Pierre Thomas.
No relief for reporters seeking to shield sources. The US Supreme Court on Monday [6/5/2006] declined to take up the reporters' cases to examine whether a generally recognized "reporters' privilege" against revealing sources should extend to a civil lawsuit brought by former nuclear-weapons-lab scientist Wen Ho Lee.
Judgment Day: President Bush should listen to his base, not his opponents. What's wrong with this picture? President Bush was quick to slap his conservative base, yet he has shown an inexhaustible supply of sensitivity to those who plot to derail his presidency. Early on, the president was solicitous of Senator Ted Kennedy, inviting him to the White House residence to watch a movie and share popcorn. He even named the main Department of Justice building after Robert Kennedy. In return, Kennedy has never missed an opportunity to stick a knife between the president's ribs.
Advice and Consent? You might be surprised by the way Clinton chose Ginsburg.
Courting trouble. The current battle over the future of the Supreme Court reminds us of another foe in the culture war — judges who prefer legislating from the bench to interpreting the law. Don't think this is just a matter for legal experts, the talking heads on cable-TV news shows and our politicians in Washington. The Supreme Court has a more profound effect on the culture war than you may realize.
Big Corporations Finance the War on Bush's Judges. The liberal advocacy group People for the American Way, which has sought to kill a number of President Bush's judicial nominations in recent years, is preparing to play a leading role in opposing the president's nominee for a place on the Supreme Court. But what few people know is that PFAW will do its work financed, in part, by several of the country's leading public — and ostensibly apolitical — corporations.
Excellent!
Senate Sense & Nonsense: Three general principles should apply to the Senate's consideration of any judicial nominee: The Senate should focus its attention on judicial qualifications, not personal political beliefs; the Senate should engage in respectful and honest inquiry, not partisan personal attacks; and the Senate should apply the same fair process — confirmation or rejection by majority vote — that has existed for 214 years of our nation's history.
Let's not get Borked again. [Senator Ted] Kennedy's now-infamous "Bork's America" speech has to be one of the lowest moments in modern American history. Coupled with the constant onslaught of hatred perpetrated by liberal groups such as People for the American Way, NOW, NARAL and Planned Parenthood, it left Judge Bork's nomination in tatters by sundown of the first day.
Flashback:
The Constitution is whatever Sandra Day O'Connor says it is ...on any given Monday. That modifier is crucial, because she does change her mind, and when she does, so does the Constitution.
The Constitution must trump Senate collegiality. What narcissism! The composition of our appellate courts and the right of the president to appoint qualified judges is what is at stake here — not whether the reputation of the Senate as a pristine body of backslapping, congenial good old boys emerges from the process.
Judicial havoc: There was a time when criminals had to fear the courts but honest people did not, a time when doctors did not have to spend tens of thousands of dollars a year for malpractice insurance to guard against frivolous lawsuits.
Supreme
Court Year in Review 2003-04. The opinions included in this Review
involve a broad range of issues that should include something for everyone: national
security and the war against terrorism – the Commander-in-Chief v. the courts; the
Pledge of Allegiance – prayer or patriotism; Internet pornography – who bears the
burden to protect children; religious liberty – or religious discrimination; sexual
harassment in the workplace; when there's a right to remain silent and when
there isn't; cities v. sex businesses; and the increasing reliance on "international
law" by federal courts.Who started the Supreme Court circus? Republicans have been willing to grant Democratic presidents their right to select nominees of their choice, while Democrats have used an explicitly ideological standard since the 1987 trashing of Robert Bork: If you're conservative, you're disqualified — period.
Legislative Lowdown. Five justices on the U.S. Supreme Court triggered a judicial earthquake on June 23. Their ruling in Kelo v. City of New London sparked bipartisan anger on Capitol Hill and showcased the breathtaking power activist judges have to redefine the Constitution.
Republican appointees disappoint again. The Supreme Court banished the Ten Commandments from courthouses in McCreary County v. American Civil Liberties Union, and ruled against private property in Kelo v. City of New London. The term would have been a complete disaster if Justice Stephen G. Breyer, a Clinton-appointee, had not surprisingly voted to save the Ten Commandments displayed on the Texas State Capitol grounds in Van Orden v. Perry.
Judicial supremacists and the despotic branch. While riding roughshod over the Ninth and Tenth Amendments as they overturned the laws of 19 states, the Supremes blithely pushed the nation one step closer toward what everyone since Plato has described as governance in its most degenerative form.
Equal protection? Just protect the Constitution from the Supreme Court. In 1866, when members of the 39th Congress of the United States submitted the Constitution's 14th Amendment to state legislatures for ratification, they would have been stunned to learn that they had just written a provision mandating that homosexual sex be treated on the same moral plane as heterosexual sex.
Judicial havoc: Part III. In addition to the havoc wrought by the judiciary in our times, there is the havoc wrought on the judiciary itself by others.
The case of Boumediene v. Bush
President Kennedy. Justice Kennedy's opinion is full of self-applause about his defense of the "great Writ," and no doubt it will be widely praised as a triumph for civil liberties. But we hope it is not a tragedy for civil liberties in the long run. If there is another attack on U.S. soil — perhaps one enabled by a terrorist released under the Kennedy rules — the public demand for security will trample the Constitutional delicacies of Boumediene. Just last month, a former Gitmo detainee killed a group of Iraqi soldiers when he blew himself up in Mosul. And he was someone the military thought it was safe to release.
Is the US Constitution a suicide pact after all? The US Supreme Court has just decided to allow terror suspects captured in foreign combat to challenge their detention in Federal civilian courts. This decision contradicts US law for the last 232 years, through the Civil War and the two World Wars.
The Supreme Court Wins, America Loses. [Chief Justice Roberts wrote] that the Boumediene decision is "not really about the detainees at all, but about control of federal policy regarding enemy combatants," and that "[a]ll that today's opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary." More specifically, in the last four words of Justice Roberts's dissent about who has won he names names: "unelected, politically unaccountable judges."
McCain: Guantanamo Ruling One of the 'Worst Decisions' in History. John McCain said Friday that the Supreme Court ruling on Guantanamo Bay detainees is "one of the worst decisions in the history of this country." The presumptive GOP nominee said the decision, a 5-4 ruling Thursday that determined Guantanamo detainees have the right to seek release in civilian courts, would lead to a wave of frivolous challenges.
The United States Supreme Court Versus America: Thursday's 5-4 decision awarding "unlawful combatants" at Gitmo — terrorists — the "privilege of the writ of habeas corpus" has left millions of Americans stunned. What in the world is the majority of the Supreme Court thinking? … It is as though the five justices and their clerks are wholly ignorant of the rising stack of books and flood of articles detailing the nature of the enemy and their creed of death.
Adios, Guantanamo. "The Nation will live to regret what the Court had done today," Justice Antonin Scalia writes at the end of his dissent in Boumediene v. Bush, the case in which a bare majority of the Supreme Court, for the first time ever, extended rights under the U.S. constitution to enemy combatants who have never set foot on U.S. soil.
Combating the Combatants Decision: In a bitterly divided 5-4 decision, the Supreme Court ruled Thursday in Boumediene v. Bush that alien enemy prisoners, waging a jihad against the American people and captured by our military in a war authorized by Congress, have a right — under our Constitution — to petition our courts for their release. So doing, the Court invalidated laws it had only recently implored Congress to enact, laws that provided these prisoners with generous protections never previously extended to enemy operatives in American history.
Scalia dissents. One of the joys of the Web is the ability to get the Supreme Court's opinions in real time and, particularly, reading the dissents of Justice Scalia to outrageous left-wing opinions. So it is with Boumedienne v. Bush, the Supreme Court's ruling on habeas corpus for detainees in Guantanamo, released yesterday (June 12).
Lord Kennedy. As the swing vote on a polarized United States Supreme Court, Justice Anthony Kennedy is among the most powerful men in the country. With yesterday's 5-4 decision in Boumediene v. Bush, Kennedy, who authored the majority opinion, showed that not only is he very comfortable with power, he is also intent on shoring up and expanding the power of the federal judiciary system that he sits atop.
The Gitmo Nightmare: It's hard to summarize a decision as long and complicated as the Supreme Court's 5-4 ruling last week in Boumediene v. Bush. But we can try. Unprecedented. Reckless. Harmful. Breathtakingly condescending.
A Supreme Error. Upon reading the opinion in Boumediene v Bush, one must conclude that the majority knew where they wanted to go and simply had to figure out how to get there. The trip was not a pretty one. How could it be when the justices seemingly wrote a map based on ideas cherry picked from over 400 years of established law and backfilled with justifications to create a new right for alien combatants that Americans themselves do not enjoy?
The Supreme Court Goes to War. From the celebrations on most U.S. editorial pages, one might think that the court had stopped a dictator from trampling civil liberties. Boumediene did anything but. The 5-4 ruling is judicial imperialism of the highest order.
Sen. Obama's 9/10 Mind-Set: Does Barack Obama think Osama bin Laden has a right to an attorney and should be read his Miranda rights if captured? As shocking as this is, it's in the proud tradition of his party. In an interview with ABC News on Monday [6/16/2008], Obama indicated that, like President Bill Clinton in 1993 after the first bombing of the World Trade Center, he too would treat the war on terror as a law enforcement matter.
On Terrorism, Obama Is Living History. The justices have dumped potentially hundreds of detainee cases on the federal district courts with no guidance about the rules and procedures that should govern those proceedings. Naturally, this prospect has prompted intense debate.
Boumediene: A Supremely Problematic Court Decision. In Boumediene v Bush, besides, for the first time in history conferring habeas corpus rights on alien enemies detained abroad by our military during a war, the Court struck down as inadequate what Chief Justice John Roberts called "the most generous set of procedural protections ever afforded enemy combatants."
Our Miserable Court: Supreme Court in its infinite wisdom decided that violent foreigners who will use any means at their disposal and have declared war on us are to be given all the rights and protections under our Constitution. It is a really strange decision coming from a bunch of justices who routinely look to international law for their inspiration.
We'll Rue Having Judges on the Battlefield. For the first time in our history, the Supreme Court has rejected the considered judgment of both the Congress and the president on an issue of national security. The writ of habeas corpus, a bulwark of domestic liberty, has been extended to foreign nationals whose only connection to the U.S. is their capture by our military.
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