The jubilantly hypocritical fight over control of the Supreme Court

Mitch McConnell made a mistake by announcing that the Senate would not allow a vote on any nominee that President Obama is going to make for the Supreme Court. It instantly gave Democrats ammunition. “How dare they!” cried Chuck Schumer, right before footage emerged of him planning to obstruct any SCOTUS nominee George W. Bush might make in 2007. Obama bristles now about the behavior of the Republicans suggesting they’d deny him a nominee, even though he tried to filibuster a vote on Samuel Alito. Let’s not pretend this is…

Some thoughts on our sad, predictable reaction to Scalia’s death

The words “giant” or “legend” get thrown around far too much these days, but they fit Justice Antonin Scalia.  The single greatest influence on the Supreme Court since, perhaps, Oliver Wendell Holmes, he almost singlehandedly effected a sea change in American jurisprudence. Prior to Scalia originalism and textualism (or course, I’m using words loosely here, a tendency Scalia himself often criticized) were not taken seriously; they were the province of the fringe and the intellectually lazy.  Now, they form the guiding principles for much of the work done by lawyers all…

Some Thoughts on Why King v. Burwell Is Wrong, But Also, Maybe, Right

Occasionally, I’ll be sitting in church, and I’ll hear someone start dissecting the Bible like a piece of legislation: “Well, if Jesus meant ___, he wouldn’t have said ___, because then ___ would be superfluous.”  Or some similar thing. As a lawyer, I understand this impulse — and do my very best to resist it.  I think there is very little, if any, good that comes of trying to interpret scripture according to formalistic rules — rules that I can pretty guarantee that none of Moses, Isaiah, Jesus, Peter, or Paul…

Supreme Court chooses rule of power over rule of law

The U.S. Supreme Court had an opportunity today to reinforce that America is a nation governed by laws, not by powerful men and women. Sadly, it chose to abdicate that principle in favor of legal sophistry. In the court’s other major ruling on the ACA, NFIB v. Sebelius, the court stated clearly it does not have the expertise to make judgments regarding public policy – but the King v. Burwell ruling relies wholly on judgments regarding public policy to justify its conclusion that the plain language of Obamacare cannot mean…

What Could Happen with Same Sex Marriage at the Court?

The Supreme Court will likely render its opinion in Obergefell v. Hodges on Monday, June 29. The Court will answer two questions, commonly referred to as the marriage question and the recognition question: (1) does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? and (2) does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? There are a few possible outcomes (remember, the Sixth…

Diversity and the Supreme Court, an Alternate Perspective

I usually don’t expect myself to agree with Dahlia Lithwick, who provides commentary on the Supreme Court for Slate Magazine.  But when I read her article The 2014 Supreme Court: An Ivy League Clan Disconnected From Reality, I wanted to stand up and applaud. Here’s are some excerpts: [H]aving covered the Court for 15 years, I’ve come to believe that what we’re seeing goes beyond ideology. Because ideology alone would not propel the justices to effect such massive shifts upon the constitutional landscape, inventing rights for corporations while gutting protections for…

The Supreme Court Thinks It Can Decide Which Religious Beliefs are Important [Hub Debate]

With the Supreme Court ruling 5-4 in Burwell v. Hobby Lobby on Monday, finding  that for-profit employers with religious objections can opt out of providing contraception coverage under Obamacare, our debate topic is set: did the Supreme Court get it right? Or wrong?  The Supreme Court’s decision in Burwell v. Hobby Lobby is problematic, but given the court’s current composition, and its track record on corporate issues, it was not unexpected. As in most cases, the justices aren’t idiots (even the ones I usually disagree with), so the majority decision isn’t a gross miscarriage…

Enabling Act Silliness

Politics has its silly season. But litigation provides for perpetual silliness, as litigants (and their lawyers) continuously grasp at straws to justify outcomes.  I’m even tempted to say I’ve seen more ridiculous arguments practicing law than I’ve seen on Facebook . . . but that might be pushing things a bit far. Regardless, I can say that I’ve been on the grasping side enough times to know when someone has entered the silly zone — and, I hate to break it to you, fellow conservatives: on the idea of a grand public…