Judges and politicians constantly talk of the importance of respecting precedent. But It is not unusual for the Supreme Court to overturn its own precedents. What does legal history say about the importance of precedent in modern jurisprudence? Responding to President Donald Trump’s nomination of federal appeals-court Judge Brett Kavanaugh to the Supreme Court, Maine [...]
The paradigm motivating Justice Kennedy’s jurisprudence is of an individual who must be protected by the courts from all outside pressures. The result has been increasing hostility toward the fundamental institutions on which our constitutional order relies… Justice Anthony Kennedy Justice Anthony Kennedy’s tenure on the Supreme Court was filled with irony. Had it [...]
With the Supreme Court’s decision in Gill v. Whitford, the door is now open under the right political circumstances for state courts to take over political redistricting. And the constitutional changes will be permanent… In the Wisconsin political-gerrymandering case, Gill v. Whitford, decided by the Supreme Court last week, the Court avoided ruling on the substantive constitutional [...]
Though Masterpiece is a decision upholding religious liberty, the Supreme Court’s ruling makes it clear that free speech about homosexuality does not enjoy broad protections… In the first of two momentous cases on its docket as to whether some Americans can be left alone as dissenters from the punishing orthodoxies of the progressive society and state, [...]
By state law, the state of California is now forcing pregnancy-support centers, whose sole purpose for existence is to offer alternatives to abortion, to “conspicuously” notify pregnant women of where they can receive abortions. The centers have objected that the law violates the Free Speech Clause of the First Amendment by compelling them to engage [...]
With a “clear, plain, and palpable” eagerness to seize control of the Pennsylvania congressional map in time for the 2018 mid-term elections, the Pennsylvania Supreme Court has gone beyond judicial activism and joined with the Democrats in their attempt to win control of the U.S. Congress. The details of how this came about and the [...]
If governments can directly instruct families about what to believe concerning homosexuality and about the correct frame of mind to have in conducting daily business, it is hard think that the policies and practices of religious schools and other institutions, like hospitals, will be left alone... In Obergefell v. Hodges, the 2015 decision of the [...]
In the potentially momentous case considering the issue of “political gerrymandering,” the Supreme Court last week spent almost no time discussing and demanding that the litigating parties address the language of the Constitution. In Gill v. Whitford, Wisconsin Democrats had won a 2-1 ruling of a three-judge federal district court that the 2010 re-apportionment plan [...]
It is understandable that confirmation hearings should sometimes become contentious and even partisan. But the past half-century has seen the infection of the process by serious contentions that go to the heart of constitutional governance itself. Confirmation hearings have a noble place in the American political tradition. They are necessary so that Senators may see [...]
Freedom of speech and press is the lifeblood of a free society. And the abuse of free speech, however outrageous, is the price we must pay for this freedom... Recently, I was asked by a federal judge to appear on a panel of three at an Inns of Court in Houston on the topic, “Free [...]
Only with a conservatism anchored in the presumptions and principles of the Founders, in their understanding of constitutionalism and in the proper functions of each of the branches, are we prepared to do battle with the children of the Enlightenment… The most notable change in the American Republic over the last forty years has been [...]
That a district judge would overrule the President of the United States on a matter of border security in wartime is absurd. And only someone ignorant of history can view President Trump’s disparagement of the judge blocking his travel ban as frightening… “Disheartening and demoralizing,” wailed Judge Neil Gorsuch of President Trump’s comments about the [...]
Textualism is a compromise, or rather a lowest common denominator, that can allow for a renewal of the rule of law. Still, it rests on a great loss—that of the common mind of our people… Neil Gorsuch, President Trump’s nominee to fill late Justice Antonin Scalia’s spot on the Supreme Court, might follow other recent [...]
If Roe v. Wade should fall, this will only be the beginning of a veritable war by the abortionists on the courts, legislatures, and public. A friend of mine, who enjoys irritating me, recently handed me a book review from the American Historical Review, written by Professor Simone M. Caron, of Johanna Schoen’s Abortion After [...]