Justice Kennedy divided America

In the span of 30 years on the United States Supreme Court, Justice Anthony Kennedy changed the face of America and, in doing so, created Donald Trump and deepened our political divisions. While Justice Kennedy is receiving great accolades for many important court decisions that he authored, his legacy should be judged by his activism more than by any wisdom he provided. Even after authoring Lawrence and Obergefell, perhaps Justice Kennedy’s greatest effrontery was his 1992 opinion in Planned Parenthood v. Casey, upholding Roe v. Wade, wherein he wrote, “At…

Maintain SCOTUS balance? Nah

“Heads I win, tails you lose.” One of the surest things in politics is people seeking to stack the deck in their favor. Since we seem to have more reliance than ever on the courts over legislative bodies and popular votes to settle both governance and social issues, the focus has been on trying to make sure those bodies are filled with individuals who will promote our issues and causes. Kelli Lundgren’s plea for a “moderate” to replace Scalia on the Supreme Court is no different. Until Scalia’s passing, the…

A moderate is needed for the Supreme Court

Cutting through hypocrisy, I want to declare aloud an assumed but hushed reality that U.S. Supreme Court Justices interpret the Constitution based on individual biases. After all, Republicans and Democrats would not be arguing over whom and when a justice will be nominated to replace the late and Honorable Antonin Scalia if interpretation of law could not be skewed. Further proof of bias: justices’ voting records consistently divide by ideology. Five to four. Five to four. Five to four. Of course exceptions can be found when common sense sides with…

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…

United States v. Texas: Immigration at the Supreme Court

Does President Obama have the power to change immigration policy through a deferred action immigration program without going through Congress?  The Supreme Court indicated today that it will likely decide that question soon. The Court granted certiorari in United States v. Texas, a case wherein a federal district court in Texas entered a preliminary injunction stopping Obama’s immigration program before implementation, and a divided 3-judge panel of the Fifth Circuit affirmed that injunction. In other words, the Supreme Court agreed to hear arguments, and decide whether Obama’s executive action immigration…

In God We Should Trust

“We have staked the whole future of American civilization, not upon the power of government, far from it. We’ve staked the future of all our political institutions upon our capacity…to sustain ourselves according to the Ten Commandments of God.” – James Madison, 1778 to the General Assembly of the State of Virginia. “Without God, there is no virtue, because there’s no prompting of the conscience. Without God, we’re mired in the material, that flat world that tells us only what the senses perceive. Without God, there is a coarsening of…

Midday Commentary on a Week’s Worth of News — July 2, 2015

I really had no clue how to tackle the entire spectrum of news coming out of SCOTUS last week, so instead I did what any reasonable person would do, I ran and hid. So with a little time to digest it all, here are just a few take-aways: • To the Tumblerina Twitterati FB SJWs, you are doing amazing work. Keep it up! I definitely think your efforts helped to sway a few of the SCOTUS justices, especially Alito, who’s a known lurker in multiple subreddits. • Relying on the…

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…