Subscribe: Supreme Court
Added By: Feedage Forager Feedage Grade B rated
Language: English
amendment  case  circuit  court  federal  government  justice  law  legal  order  speech  supreme court  supreme  trump 
Rate this Feed
Rate this feedRate this feedRate this feedRate this feedRate this feed
Rate this feed 1 starRate this feed 2 starRate this feed 3 starRate this feed 4 starRate this feed 5 star

Comments (0)

Feed Details and Statistics Feed Statistics
Preview: Supreme Court

Supreme Court

All articles with the "Supreme Court" tag.

Published: Sun, 20 Aug 2017 00:00:00 -0400

Last Build Date: Sun, 20 Aug 2017 06:21:36 -0400


Why SCOTUS Should Tell the Government 'Get a Warrant' in Cellphone Location Data Case

Wed, 16 Aug 2017 14:35:00 -0400

The Fourth Amendment to the U.S. Constitution famously guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Yet in 1979 the U.S. Supreme Court held that law enforcement officials do not need a search warrant to get a suspect's telephone call records from a phone company. "A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties," the Court ruled in Smith v. Maryland.

Otherwise known as the "third-party doctrine," this legal rule raises profound and troubling questions in the age of the smartphone. Nowadays we share all sorts of personal information with third parties, such as the numbers we dial and text, the URLs we visit, the email addresses we correspond with—even the physical locations from which we access our devices. Does it make any sense to exclude so much meaningful and highly sensitive private information from the "papers" and "effects" entitled to Fourth Amendment protections?

This fall the U.S. Supreme Court will have the opportunity to give the third-party doctrine a second look when it hears oral arguments in the case of Carpenter v. United States. At issue is whether the FBI violated the Fourth Amendment when it obtained, without a search warrant, the historical cellphone call and location records of several suspected armed robbers. Federal agents used those records to identify the cell towers that handled the suspects calls during the time periods in which the robberies occurred. The government then traced back the suspects' movements and linked their whereabouts to their alleged crimes.

How should the Court approach this case? In an amicus brief filed last week, the Cato Institute, the Competitive Enterprise Institute, the Committee for Justice, and the Reason Foundation (the nonprofit that publishes this website) offer a piece of eminently sound constitutional advice: "This Court should apply the terms of the Fourth Amendment in all Fourth Amendment cases."

What that means in practice, the brief explains, is that "the government's compulsory acquisition of data in this case was a seizure. Processing the data to make it human-readable was a search....Thus, it was unreasonable to seize and search the data without a warrant. Lacking exigency or other excuse, the government should have got one."

"Get a warrant" is the perfect message for the Supreme Court to tell the government in this case.

Reason Foundation Supports Florists, Bakers in Gay Wedding Case Before Supreme Court

Wed, 16 Aug 2017 11:45:00 -0400

Consumer goods like custom floral bouquets and wedding cakes are also acts of expressive artistry protected by the First Amendment. Shops who arrange flowers and bakeries that produce cakes cannot be compelled by law to do so for same-sex weddings if owners have religious objections. That's the argument presented in an amicus brief submitted to the Supreme Court this week by the Reason Foundation (the non-profit think tank that produces this site and publishes Reason magazine), the Cato Institute, and the Individual Rights Foundation. The Supreme Court agreed in June to hear the case of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. The case involves a Lakewood, Colorado, bakery whose owner, Jack Phillips, declined to make a wedding cake for a gay couple due to his objections to same-sex marriage. The state ruled Phillips violated the state's public accommodation laws that prohibit discrimination on the basis of sexual orientation. Meanwhile, Baronnelle Stutzman, owner of Arlene's Flowers, in Richland, Washington, has faced similar government sanction for refusing to provide floral arrangements for a same-sex wedding. Stutzman is standing on her religious opposition to same-sex marriage in her petition to the Supreme Court. The Reason Foundation, the Cato Institute, and the Individual Rights Foundation brief encourages the court to consolidate the Stutzman and Masterpiece Bakeshop cases. Considering the cases together would "provide the Court with a more extensive factual record on which to base a decision, as well as help clarify the applicability of the ultimate decision's holding," the brief says. Essentially, they want the Supreme Court to determine whether flower arrangement is also a form of expressive activity and possibly protected free speech. As it stands, the Supreme Court could issue a ruling narrow enough to cover only wedding cakes. The brief presents two arguments to encourage the court to decide on behalf of the bakery and the florist. First, arranging flowers or baking a wedding cake is artistic expression protected by the First Amendment. The brief argues the court has previously held a fairly broad view of what counts as symbolic speech, and floral arrangements and wedding cakes should be included: Art is speech, regardless of whether it actually expresses any important ideas—or even any perceptibly coherent idea at all. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston—which upheld the right of parade organizers not to allow a gay-rights group to march because they did not want to endorse the its message—even went so far as to say that the paintsplatter art of Jackson Pollock, atonal music of Arnold Schoenberg, and nonsense words of Lewis Carroll's Jabberwocky poem are "unquestionably shielded" by the First Amendment. Second, the brief argues the government is using anti-discrimination laws to compel business owners to participate in same-sex wedding ceremonies, regardless of their religious objections. The lower courts have determined that providing cakes and flower arrangements does not "endorse" same-sex marriage. The brief asks the Supreme Court to reconsider this attitude and argues that these businesses are being ordered to put their stamp of approval on a concept (same-sex marriage) to which they object. The brief uses Wooley v. Maynard, where the Supreme Court previously ordered that New Hampshire couldn't force citizens to display the state's motto on their license plate if they objected to the statement "Live Free or Die": Surely, no observer would have understood the motto—printed by the government on government-provided and government-mandated license plates—as the driver's own words or sentiments. … Yet the Court nonetheless held for the Maynards. … The Court reasoned that a person's "individual freedom of mind" protects her "First Amendment right to avoid becoming the courier" for the communication of speech that she does not wish to communicate. … People have the "right to decline to foster ... concepts" with [...]

Can a Court Arbitrarily Conclude That 'Security' Overrules the First Amendment?

Mon, 14 Aug 2017 17:25:00 -0400

A 3D printer company founded by provocateur Cody Wilson, along with the Second Amendment Foundation, has filed for certiorari to the U.S. Supreme Court in a case asking that the company be allowed to post on its website instructions for using a 3D printer to manufacture a plastic gun. Defense Distributed and the Foundation sued the State Department and other government persons and agencies back in May 2015 after the government threatened the company in May of 2013 for hosting the 3D gun manufacturing files. The government maintains that such files are essentially armaments in and of themselves and subject to existing laws against the export of such munitions, with posting them in a place where foreigners could access them constituting such an illegal export. The plaintiffs have sustained a series of losses in lower courts attempting to get a preliminary injunction against the government. Their plaintiffs contends the government has violated the company owners' First, Second, and Fifth Amendment rights with its actions. Most specifically in this cert petition they have asked the Supreme Court to answer these questions: 1. Whether a court weighing a preliminary injunction must consider a First Amendment plaintiff's likelihood of success on the merits. 2. Whether it is always in the public interest to follow constitutional requirements. 3. Whether the Arms Export Control Act of 1976....and its implementing International Traffic in Arms Regulations ("ITAR")...may be applied as a prior restraint on public speech. The petition insists that in denying their request for an injunction, the Fifth Circuit Court of Appeals has taken a dangerous stance in balancing the First Amendment against government's insistence that it has very good reason to violate it. It is also worth noting the files in question, although no longer hosted by Defense Distributed, are universally available on the internet from many other sources. Defense Distributed is represented in this case by Alan Gura, who won two previous Second Amendment victories at the Supreme Court in 2008's Heller case and 2010's McDonald. Gura and his co-counsels argue in the petition the Fifth Circuit should not have been allowed to have: simply declared that the government's asserted interests outweighed the interest in securing constitutional rights....considering the merits of preliminary injunction motions is not optional. Of all contexts, the merits cannot be optional in First Amendment cases. It should ordinarily go without saying—and so it must now be said—that federal courts cannot dismiss the Constitution's primacy in our legal system... The government can be relied upon to assert the necessity of every prior restraint. The public must be able to rely on the courts to test these assertions for constitutional compliance. Gura argues the government's rules defining what falls under ITAR are completely ambiguous and confusing. The process for learning whether or not those rules apply to you is a similar mess of ambiguity and overreach. And the government's ability to stonewall drags out cases like that of Defense Distributed for years, Gura writes. The petition also details the history of interpretation of ITAR over the past decades in the (proper) direction of not using it as a prior restraint on expression or speech on American citizens when it involves non-classified information. The Fifth Circuit, in its decision on the appeal of an initial district court loss for Defense Distributed, was pretty blatant in saying the First Amendment doesn't count here because the government says so: Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security. Gura finds that assertion unsatisfying, leaning on a Fifth Circuit dissent from the panel's majority opinion. Dissenter Judge Edith Jones: noted that "[...]

Violent Charlottesville Protester Claims 'Free Speech Does Not Protect Hate Speech'

Mon, 14 Aug 2017 13:50:00 -0400

Yesterday Jason Kessler, who organized the white supremacist rally in Charlottesville, Virginia, that ended in deadly violence on Saturday, tried to hold a press conference at City Hall. As Ron Bailey reported here, the event was shut down by "an angry crowd" that "surged in and grabbed" Kessler. Here is how Jeff Winder, a protester who punched Kessler, justified his violence in an interview with The New York Times: Jason Kessler has been bringing hate to our town for months and has been endangering the lives of people of color and endangering other lives in my community. Free speech does not protect hate speech. Thus we see the logical consequences of the idea that Howard Dean, former chairman of the Democratic National Committee, endorsed last spring by way of explaining why a public university's decision to cancel a speech by conservative commentator Ann Coulter did not raise any constitutional issues. If, as Dean claimed, "hate speech is not protected by the First Amendment," anyone who is deemed to be engaging in it can be censored by the government or even forcibly silenced by concerned citizens. If Kessler has no right to say what he wants to say and his message endangers people's lives, he can hardly expect the police to protect him when someone like Winder takes direct action to neutralize the threat. It cannot be said too often that Winder, like Dean, is simply wrong as a matter of law. In the United States, "hate speech" is not a legally defined or constitutionally relevant category. Time and again, the U.S. Supreme Court has made it clear that even the most repugnant bigotry is protected by the First Amendment. The idea that "the Government has an interest in preventing speech expressing ideas that offend...strikes at the heart of the First Amendment," Justice Samuel Alito noted last January in Matal v. Tam, which overturned the federal ban on registration of disparaging trademarks. "Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" What about the argument, made explicitly by Dean and implicitly by Winder, that hate speech is not protected because it incites violence? The Court has addressed that issue as well. In the 1969 case Brandenburg v. Ohio, the Court rejected criminal charges against a Ku Klux Klan leader, Clarence Brandenburg, who was accused of advocating violence in the service of a political cause and participating in a gathering aimed at promoting "the doctrines of criminal syndicalism." The charges stemmed from a KKK rally that featured weapons, hoods and robes, a cross burning, and racist and anti-Semitic rhetoric. "Personally," Brandenburg said, "I believe the nigger should be returned to Africa, the Jew returned to Israel." He also alluded vaguely to the possibility of violent resistance. "We're not a revengent organization," he said, "but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken." The Court ruled that such speech is protected by the First Amendment unless it is aimed at inciting "imminent lawless action" and is likely to have that effect. When people like Dean and Winder say that hate speech isn't legally protected, perhaps what they mean is that hate speech shouldn't be legally protected. If so, they should explain how that would work in practice: How would hate speech be defined, and who would define it? As Katherine Mangu-Ward observed this morning, these are not details that can be safely worked out later once we all agree that hate speech does not deserve constitutional protection. Unless we can clearly say what hate speech is and is not, that proposition is not just impractical but incomprehensible. The phrase means different things to different people, whose opinions are bound to[...]

From Bork to Willett: Is the Conservative Legal Movement Going Libertarian?

Fri, 04 Aug 2017 11:35:00 -0400

When President Ronald Reagan nominated Robert Bork to the U.S. Supreme Court in 1987, he praised his nominee for being "widely regarded as the most prominent and intellectually powerful advocate of judicial restraint." It was no exaggeration. During his decades-long career as a law professor, federal judge, and legal commentator, Bork routinely preached the virtues of a deferential judiciary, arguing that in the vast majority of cases "the only course for a principled Court is to let the majority have its way." Where Bork led, most legal conservatives were ready to follow. Judicial deference, or restraint, became a rallying cry on the legal right. Borkean deference still holds sway today in many quarters. But it is also increasingly under fire from libertarian-minded legal thinkers who want the courts to play a more aggressive role in defense of individual liberty and against overreaching majorities. Case in point: The new issue of Governing magazine profiles Don Willett, the Texas Supreme Court justice who recently appeared on Donald Trump's shortlist of potential U.S. Supreme Court candidates. Willett "is witty and approachable, and he's huge on Twitter," writes journalist Alan Greenblatt. "He's also one of the most influential jurists in the country right now." Willett's rising influence signals Bork's declining favor. It shows that libertarian legal ideas are gaining ground. To be sure, Bork and Willett are both "conservative" and both have ties to the Republican Party. But they differ in important ways. Bork wanted judicial minimalism; Willett wants judicial engagement. "The State would have us wield a rubber stamp rather than a gavel," Willett complained in the 2015 case of Patel v. Texas Department of Licensing and Regulation, "but a written constitution is mere meringue if courts rotely exalt majoritarianism over constitutionalism." As Greenblatt notes in his profile, "Willett is pretty blunt about his overall intent. He's a champion of individual rights, claiming a central role for the judiciary in protecting those rights against state encroachment." Bork, by contrast, was obsessed with limiting the judiciary's role. If Bork's great enemy was judicial activism, Willett's great enemy is judicial pacifism. The differences don't stop there. According to Bork's interpretation, the 14th Amendment offers zero constitutional protection for economic liberty, which means that the courts have no business striking down government regulations on 14th Amendment grounds. Since the amendment does not explicitly refer to economic liberty, Bork reasoned, it does not protect it. When "the Constitution does not speak," he insisted, we are "all at the mercy of legislative majorities." Willett takes a different view. "The Fourteenth Amendment's legislative record," he has pointed out, "is replete with indications that 'privileges or immunities' encompassed the right to earn a living free from unreasonable government intrusion." Willett has even thrown shade in Bork's direction: "A conservative luminary, Bork is heir to a Progressive luminary, Justice Holmes, who also espoused judicial minimalism. Both men believed the foremost principle of American government was not individual liberty but majoritarianism." Willett clearly ranks individual liberty first. Thirty years ago, when Borkian judicial deference was in its heyday, the conservative legal mainstream was largely hostile to libertarian legal ideas. That Don Willett is now championing those same ideas and is at the same time under possible consideration for a Supreme Court seat demonstrates just how far the dial has moved in a libertarian direction.[...]

Republican-Appointed Judge Backs Gun Control Law, Says 'Firearms Regulation Requires Ample Deference' from Courts

Thu, 27 Jul 2017 12:20:00 -0400

"The Second Amendment erects some absolute barriers that no gun law may breach." So wrote Judge Thomas Griffith of the U.S. Court of Appeals for the District of Columbia Circuit this week in Wrenn v. District of Columbia. Griffith's opinion blocked the District from enforcing its strict rules governing the issuance of conceal-carry handgun permits. It was a notable win for Second Amendment advocates.

But the ruling was not unanimous. Writing in dissent, Judge Karen Henderson insisted that D.C.'s gun licensing scheme should be affirmed. According to Henderson, the principle of judicial deference demands nothing less.

"The nature of firearms regulation requires ample deference to the legislature," Henderson wrote. That "ample deference stems from the recognition that gun laws involve a 'complex and dynamic' issue implicating 'vast amounts of data' that the legislature is far better equipped to gather and analyze." The propriety of gun control regulation, she concluded, is a political question that should be solved exclusively by democratically accountable officials.

If Henderson's argument sounds familiar, that is because it so closely resembles a recent concurring opinion filed by Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit. In Kolbe v. Hogan, Wilkinson joined the majority in upholding a state ban on "assault weapons" and detachable large-capacity magazines. Wilkinson did so, he explained, because the federal courts "are not impaneled to add indefinitely to the growing list of subjects on which the states of our Union and the citizens of our country no longer have any meaningful say."

Henderson and Wilkinson both believe that judges should tip the scales in favor of lawmakers in gun control cases. They favor this approach because they think judicial deference to majority rule should be the overriding interest in such disputes. They want the courts to butt out. As Wilkinson put it, if judges persist in overruling duly enacted gun laws, the end result will be to "empower the judiciary and leave Congress, the Executive, state legislatures, and everyone else on the sidelines."

Henderson and Wilkinson have something else in common. They are both Republican-appointed judges. Henderson was first named to the federal district court by President Ronald Reagan, then elevated to the D.C. Circuit by President George H.W. Bush. Wilkinson was put on the 4th Circuit by President Reagan.

Don't be surprised by those political affiliations. Judicial deference to majoritarian government has been a touchstone in Republican and conservative legal circles for decades. Chief Justice John Roberts clearly demonstrated that in 2012, when he upheld the constitutionality of Obamacare on the grounds that "it is not our job to protect the people from the consequences of their political choices."

Of course, other Republicans and conservatives (not to mention libertarians) believe that it is the job of the courts to deny certain political choices when those choices violate constitutional rights or exceed constitutional limits.

The one thing both sides can agree on is that the conflict over the role of the courts is not going away anytime soon.

In Major Win for 2nd Amendment Advocates, Federal Court Blocks D.C. from Enforcing Conceal-Carry Restriction

Tue, 25 Jul 2017 15:45:00 -0400

Second Amendment advocates scored a significant legal victory today when the U.S. Court of Appeals for the District of Columbia Circuit blocked Washington, D.C., from enforcing a law that effectively bars most D.C. residents from lawfully carrying handguns in public. "The Second Amendment," the court declared, "erects some absolute barriers that no gun law may breach." The case was Wrenn v. District of Columbia (consolidated with Grace v. District of Columbia). At issue was a District of Columbia regulation that limited conceal-carry licenses only to those individuals who can demonstrate, to the satisfaction of the chief of police, that they have a "good reason" to carry a handgun in public. According to the District, applicants for a conceal-carry license must show a "special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks that demonstrate a special danger to the applicant's life." Living or working "in a high crime area shall not by itself establish a good reason." The D.C. Circuit weighed those regulations against the text and history of the Second Amendment and found the regulations to be constitutionally deficient. "At the Second Amendment's core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions," the D.C. Circuit held. "These traditional limits include, for instance, licensing requirements, but not bans on carrying in urban areas like D.C. or bans on carrying absent a special need for self-defense." The court added: "The Amendment's core at a minimum shields the typically situated citizen's ability to carry common arms generally. The District's good-reason law is necessarily a total ban on exercises of that constitutional right for most D.C. residents. That's enough to sink this law under" District of Columbia v. Heller, the 2008 case that struck down D.C.'s total ban on handguns. Today's decision by the D.C. Circuit widens an already gaping split among the federal courts on this issue. According to the U.S. Court of Appeals for the 9th Circuit, "the Second Amendment does not protect in any degree the right to carry concealed firearms in public." By contrast, the U.S. Court of Appeals for the 7th Circuit says that "one doesn't need to be a historian to realize that a right to keep and bear arms in the eighteenth century could not rationally have been limited to the home." In Heller, the U.S. Supreme Court did not rule definitively on the scope of the Second Amendment outside the home. In the nine years since that landmark ruling was issued, the Court has declined several ripe opportunities to settle the matter once and for all. In fact, just last month, the Court refused to review the 9th Circuit's dismissal of the right to carry, prompting Justice Clarence Thomas, joined by Justice Neil Gorsuch, to lambast the Court for its "distressing trend" of refusing to hear any such cases and thereby treating "the Second Amendment as a disfavored right." As Thomas put it, "even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively." That definitive answer apparently won't be coming anytime soon. For now, Second Amendment advocates will have to take heart in victories such as today's win at the D.C. Circuit.[...]

Clarence Thomas vs. Jeff Sessions on Civil Asset Forfeiture

Thu, 20 Jul 2017 10:45:00 -0400

(image) Attorney General Jeff Sessions announced this week that the Justice Department will increase the use of civil asset forfeiture, the practice that allows law enforcement officials to seize property from persons who have been neither charged with nor convicted of any crime. "Civil asset forfeiture is a key tool," Sessions declared. "President Trump has directed this Department of Justice to reduce crime in this country, and we will use every lawful tool that we have to do that."

But civil asset forfeiture is not a "lawful tool." It is an unconstitutional abuse of government power. The Fifth Amendment forbids the government from depriving any person of life, liberty, or property without due process of law. Civil asset forfeiture turns that venerable principle on its head, allowing government agents to take what they want without the bother of bringing charges, presenting clear and convincing evidence, and obtaining a conviction in a court of law. It is the antithesis of due process.

By ordering the expansion of this unconstitutional practice, Sessions has placed himself on a collision course with Supreme Court Justice Clarence Thomas. As Thomas recently explained in a statement respecting the denial of certiorari in the case of Leonard v. Texas, not only has civil asset forfeiture "led to egregious and well-chronicled abuses" by law enforcement agencies around the country, but the practice is fundamentally incompatible with the Constitution.

Thomas did not mince words. The legal justifications offered in defense of civil asset forfeiture, he pointed out, cannot be squared with the text of the Constitution, which "presumably would require the [Supreme Court] to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation." Those other doctrines, Thomas noted, impose significant checks on the government, such as heightened standards of proof, numerous procedural safeguards, and the right to a trial by jury. By contrast, civil asset forfeiture proceedings provide no such constitutional protections. Thomas left little doubt that when the proper case came before him, he would rule civil asset forfeiture unconstitutional.

Attorney General Sessions should take Justice Thomas' words to heart.

Janice Rogers Brown, America's Most Libertarian Federal Judge, Is Retiring

Wed, 12 Jul 2017 15:30:00 -0400

President Donald Trump will soon have the opportunity to fill a key vacancy on the federal bench. As The Wall Street Journal and Buzzfeed have reported, Janice Rogers Brown, an outspoken federal judge with strong libertarian tendencies, will retire next month after serving 12 years on the U.S. Court of Appeals for the District of Columbia Circuit. A former California Supreme Court justice, Brown was first nominated to the federal judiciary in 2003 by President George W. Bush, but Senate Democrats repeatedly blocked her confirmation. She was eventually confirmed in 2005. During her tenure on the D.C. Circuit, Brown emerged as a powerful voice in defense of civil and economic liberties. In the 2015 case of United States v. Gross, for example, Brown filed a sharp dissent lambasting the pro-police "prevailing orthodoxy" in Fourth Amendment cases. The right to be free from unreasonable search and seizure, Brown maintained, should clearly forbid law enforcement from conducting "a rolling roadblock that sweeps citizens up at random and subjects them to undesired police interactions culminating in a search of their persons and effects." Yet somehow "our case law considers such a policy consistent with the Fourth Amendment." Brown disagreed: "I continue to think this [case law] is error." Brown has been equally critical of government malfeasance in the economic realm. In the 2012 case of Hettinga v. United States, for instance, Brown came out swinging against the Supreme Court case law that left the D.C. Circuit with no choice but to uphold a federal price-rigging scheme that made it illegal for an upstart family dairy farm to bottle and sell its own milk for 20 cents less than the competition. This case "reveals an ugly truth," Brown wrote. "America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s." Brown also has the distinction of being denounced as a crazy libertarian by Barack Obama. In 2005, then-Sen. Obama voted against Brown's confirmation to the D.C. Circuit because he disliked her views on economic liberty and the Constitution. "One of the things that is most troubling is Justice Brown's approval of the Lochner era of the Supreme Court," Obama said, referring to Lochner v. New York, the 1905 case in which the Supreme Court struck down a state economic regulation because it served no legitimate health or safety purpose and thus violated the 14th Amendment. As it happens, Obama is the one who is wrong about Lochner. The news of Brown's retirement has already prompted speculation and debate about her possible replacement. At The Volokh Conspiracy, Case Western law professor Jonathan Adler suggests that the Trump administration may want "to use the D.C. Circuit opening to break the apparent logjam over nominations to the U.S. Court of Appeals for the 5th Circuit." That logjam, which has been extensively covered and analyzed by David Lat at Above the Law, boils down to this: There are currently two Texas openings on the 5th Circuit and three real contenders in the running. Each contender has the support of powerful political figures in Texas. One of the three contenders is Texas Supreme Court Justice Don Willett. Because Willett recently appeared on Donald Trump's Supreme Court shortlist, he would seem to be a natural pick for the 5th Circuit. But Texas politics have so far apparently prevented any 5th Circuit nominees from being named. The solution now proffered by Adler is for Trump to nominate Willett (or one of the other two) to the D.C. Circuit and thus make federal appellate judges out of all three in one swoop. Hugh Hewitt, the conservati[...]

Masterpiece Cakeshop Is Fighting for the First Amendment, Not Against Gay Marriage

Fri, 30 Jun 2017 00:15:00 -0400

This week, the Supreme Court agreed to hear the case of Masterpiece Cakeshop owner Jack Phillips, the man who refused to create a specialty wedding cake for a same-sex couple in Colorado in 2012. Yet the stories that dominate coverage distort the public's understanding of the case and its serious implications. For one thing, no matter how many times people repeat it, the case isn't about discrimination or challenging gay marriage. But when the news first broke, USA Today, for example, tweeted, "The Supreme Court has agreed to reopen the national debate over same-sex marriage." The headline (and story) on the website was worse; it read, "Supreme Court will hear religious liberty challenge to gay weddings." Others similarly framed the case. (And, don't worry, "religious liberty" is almost always solidly ensconced inside quotation marks to indicate that social conservatives are just using it as a facade.) There is an impulse to frame every issue as a clash between the tolerant and the closed-minded. But the Masterpiece case doesn't challenge, undermine or relitigate the issue of same-sex marriage in America. Gay marriage wasn't even legal in Colorado when this incident occurred. So, the Associated Press' headline, "Supreme Court to Decide If Baker Can Refuse Gay Couple Wedding Cake," and story are also wrong. As is The New York Times headline "Justices to Hear Case on Baker's Refusal to Serve Gay Couple," which was later changed to the even worse headline "Justices to Hear Case on Religious Objections to Same-Sex Marriage." A person with only passing interest in this case might be led to believe that Phillips is fighting to hang a "No Gays Allowed" sign in his shop. In truth, he never refused to serve a gay couple. He didn't even really refuse to sell David Mullins and Charlie Craig a wedding cake. They could have bought without incident. Everything in his shop was available to gays and straights and anyone else who walked in his door. What Phillips did was refuse to use his skills to design and bake a unique cake for a gay wedding. Phillips didn't query about anyone's sexual orientation. It was the Colorado Civil Rights Commission that took it upon itself to peer into Phillips' soul, indict him and destroy his business over a thought crime. Like many other bakers, florists, photographers and musicians—and millions of other Christians—Phillips holds genuine longstanding religious convictions. If Mullins and Craig had demanded that Phillips create an erotic-themed cake, the baker would have similarly refused for religious reasons, just as he had with other costumers. If a couple had asked him to design a specialty cake that read "Congrats on the abortion, Jenny!" I'm certain he would have refused them as well, even though abortions are legal. It's not the people; it's the message. In its tortured decision, the Colorado Court of Appeals admitted as much, contending that while Phillips didn't overtly discriminate against the couple, "the act of same-sex marriage is closely correlated to Craig's and Mullins' sexual orientation," so it could divine his real intentions. In other words, the threshold for denying religious liberty and free expression is the presence of advocacy or a political opinion that conflates with faith. The court has effectively tasked itself with determining when religion is allowed to matter to you. Or, in other words, if SCOTUS upholds the lower court ruling, it will empower unelected civil rights commissions—which are typically stacked with hard-left authoritarians—to decide when your religious actions are appropriate. How could any honest person believe this was the Constitution's intent? There was a time, I'm told, when the state wouldn't substantially burden religious exercise and would use the least restrictive means to further compelling interests. T[...]

Trump's Travel Ban Is Legal but Dumb

Wed, 28 Jun 2017 00:01:00 -0400

This week the Supreme Court unblocked most aspects of President Trump's executive order limiting entry into the United States, signaling that the restrictions are likely to be upheld. That makes sense, because the reasons that two federal appeals court offered for upholding injunctions against Trump's order are unpersuasive. But the fact that Trump's policy is legal does not make it smart. The original version of Trump's order was issued in great haste a week after he took office, and it showed. The 90-day ban on entry by citizens of seven Muslim-majority countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) applied to current visa holders, including people working and studying in the United States, and legal permanent residents, who were barred from returning home after traveling abroad. Adding to the confusion, the travel ban took effect immediately, stranding residents and visitors in mid-trip without notice. The result was dismay and disorder at airports around the world as officials, travelers, and lawyers grappled with the new policy. After the order was blocked by the courts, Trump issued a revised version on March 6, clarifying that the travel ban did not apply to legal permanent residents, who have a right to due process when the government tries to prevent their re-entry, or to current visa holders, whose hosts may have standing to sue. Notably, the order issued by the Supreme Court on Monday says that while the case is pending the travel ban should not be enforced against visa applicants or would-be refugees with a "bona fide relationship" to Americans, such as relatives, students accepted by U.S. universities, employees hired by U.S. companies, or lecturers booked to speak here. The revised order also eliminated Iraq from the list of targeted countries and excised language favoring religious minorities from the section imposing a 120-day moratorium on admission of refugees. Critics cited that preference as evidence that the order was motivated by anti-Muslim bias. The U.S. Court of Appeals for the 4th Circuit nevertheless concluded that the March 6 order "in context drips with religious intolerance, animus, and discrimination." The context that the court deemed relevant consisted mostly of statements made by Trump or his surrogates before and after the election, including his support for "a total and complete shutdown of Muslims entering the United States." But that is not the policy Trump actually tried to implement, and relying on his campaign comments to conclude that his executive order is a "Muslim ban" in disguise leads to strange results. The plaintiffs conceded, for example, that if Hillary Clinton had been elected president and issued exactly the same executive order, it "could be constitutional." The U.S. Court of Appeals for the 9th Circuit relied on a different rationale when it upheld an injunction against Trump's order, saying he exceeded his statutory authority because he did not make an evidence-based determination that admitting the people he wants to exclude would be "detrimental to the interests of the United States." But that was really just another way of saying that Trump's policy, which is supposedly aimed at protecting Americans from terrorists, is half-baked and empirically unsound. That much is true. Since 1975, no terrorist from any of the countries covered by the travel ban has killed anyone in the United States, and the odds of being killed by a refugee are infinitesimal. In any case, it has never been clear why a travel ban was necessary for Trump to deliver the "extreme vetting" he promised. Even the "total and complete" Muslim ban he originally proposed was supposed to last only as long as it took to "figure out what is going on," which according to his executive orders means three months. Trump has[...]

To Save His Travel Ban at SCOTUS, Trump Is Citing This 1972 Precedent

Tue, 27 Jun 2017 17:05:00 -0400

The U.S. Supreme Court has agreed to review the legality of President Donald Trump's executive order banning travelers from six majority-Muslim countries. At the heart of the Trump administration's legal case is a 1972 Supreme Court decision that recognized sweeping executive authority over immigration. If Trump ultimately wins on the merits, it is likely to be because a majority of the Court shares his administration's interpretation of the precedent set in a case called Kleindienst v. Mandel. In 1969 a Belgian journalist and self-described "revolutionary Marxist" named Ernest Mandel applied for a nonimmigrant visa to the United States in order to give a speech at Stanford University. Mandel's application was denied because, under the terms of U.S. immigration law, "aliens shall be ineligible to receive visas and shall be excluded from admission to the United States" if they "write or publish" in support of "the economic, international and governmental doctrines of world communism." Federal law gave the attorney general the power to grant waivers from this restriction on a case-by-case basis, but no such waiver was given to Mandel. Mandel then joined with six U.S. citizens, all of them university professors, in a lawsuit filed in federal court. They argued the First Amendment protected the right of American scholars to "hear [Mandel's] views and engage him in a free and open academic exchange." The constitutional right to listen and speak to Mandel in person, the professors argued, trumped the government's power to keep Mandel out of the country. The Supreme Court, however, ruled for the government. "Plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established," the Court observed. And Congress has delegated much of that power to the executive branch. "We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason," the Court said in Kleindienst v. Mandel, "the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant." Writing in dissent, Justice Thurgood Marshall accused the majority of bending over backwards in favor of the government. "Even the briefest peek behind the Attorney General's reason for refusing a waiver in this case would reveal that it is a sham," Marshall wrote. Yet the majority "demands only 'facial' legitimacy and good faith" from the government, "by which it means that this Court will never 'look behind' any reason the Attorney General gives.No citation is given for this kind of unprecedented deference to the executive, nor can I imagine (nor am I told) the slightest justification for such a rule." As far as Marshall was concerned, "Americans cannot be denied the opportunity to hear Dr. Mandel's views in person because their Government disapproves of his ideas." The Mandel ruling is now at the center of the legal battle over Trump's travel ban. Specifically, it is at the center of the battle over whether the federal courts should take Trump's various comments, tweets, and campaign statements disparaging Muslims into consideration when weighing whether or not the travel ban was motivated by illegal anti-Muslim animus. According to the Trump administration, because the president took this executive action in the name of national security, his order is "legitimate and bona fide" and therefore fully satisfies Mandel. In fact, the administration insists, under Mandel the travel ban is owed extensive deference from the courts. By contrast, the parties challenging Trump's executive order insist that Mandel should be read more narrowly. They argue that the [...]

The Republican Health Care Dud, Harry Potter, and Supreme Court Shakeup [Reason Podcast]

Mon, 26 Jun 2017 15:00:00 -0400

"Were trying to extend twentieth century or even nineteenth century entitlement spending into the twenty-first century," says Reason's Nick Gillespie about the Senate Republicans' health care legislation. "The demographics don't work, the economics don't work, and nobody will talk about just increasing the supply and variety of health care. It's maddening!"

Peter Suderman joins Nick Gillespie and Katherine Mangu-Ward in a discussion moderated by Andrew Heaton. In addition to making sense of the unimaginative Republican bill and suggesting more radical reforms in place of it, they discuss a new CATO piece about the true number of libertarians in America; the cultural impact of Harry Potter two decades in (and which house Gillespie and Mangu-Ward would would fall into); and who should replace Justice Kennedy on the Supreme Court if he retires.

Audio production by Ian Keyser.

Subscribe, rate, and review the Reason Podcast at iTunes. Listen at SoundCloud below:

src="" width="100%" height="450" frameborder="0">

Don't miss a single Reason podcast! (Archive here.)

Subscribe at iTunes.

Follow us at SoundCloud.

Subscribe at YouTube.

Like us on Facebook.

Follow us on Twitter.

Trump's Travel Ban Is Headed to the Supreme Court

Mon, 26 Jun 2017 13:22:00 -0400

Today the U.S. Supreme Court agreed to hear consolidated oral arguments in the cases of Trump v. International Refugee Assistance Program (IRAP) and Trump v. Hawaii. At issue is whether President Donald Trump's controversial executive order banning travelers from six majority-Muslim countries violates the Establishment Clause of the First Amendment and/or exceeds the president's lawful powers under federal immigration law. The Supreme Court says it will schedule oral arguments "during the first session of the October Term 2017." These cases raise fundamental questions about the reach of executive power, the meaning of federal immigration law, the scope of the Establishment Clause, and about the role of the courts in policing the boundaries. According to the Trump administration, not only did Congress give the president vast leeway to control what happens at the border, the executive branch is entitled to overwhelming judicial deference in all matters dealing with national security. According to the state of Hawaii and to the International Refugee Assistance Program, Congress did not authorize Trump's approach and Trump should get no deference from the courts because he is using government power to heap disfavor on Muslims. Until now, the Trump administration has mostly lost on this matter in federal court. In May, the U.S. Court of Appeals for the 4th Circuit, in IRAP, issued an injunction blocking enforcement of the executive order on the grounds that the legal challengers were likely to prevail in their Establishment Clause challenge. Then in June, the U.S. Court of Appeals for the 9th Circuit, in Hawaii, issued an injunction blocking enforcement of the executive order on the grounds that Trump was exercising powers that federal law did not properly delegate to him. But today the Supreme Court partially lifted those injunctions, allowing the executive order to go into effect in certain limited circumstances. Specifically, in an unsigned per curiam opinion, the Court lifted the injunctions "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States." That is a small victory for the Trump administration. However, the Court left the injunctions in place with respect to foreign nationals "who have a credible claim of a bona fide relationship with a person or entity in the United States." The Court explained, "a foreign national who wishes to enter the United States to live with or visit a family member...clearly has such a relationship.... So too would a worker who has accepted an offer of employment from an American company or a lecturer invited to address an American audience." That is a sizable loss for the Trump administration. Notably, Justice Clarence Thomas, joined by Justice Samuel Alito and Justice Neil Gorsuch, wrote separately to argue that the injunctions should be lifted "in full." This suggests those three justices may be inclined to ultimately rule in favor of the Trump administration. After all, if they think they might rule against the executive order in October, why would they want to let the order go into full effect right now? It also raises the interesting possibility that Chief Justice John Roberts and Justice Anthony Kennedy may be more inclined to ultimately rule against Trump. One thing is certain: This fall Donald Trump will face the first major test of his presidency before the U.S. Supreme Court.[...]

Clarence Thomas and Neil Gorsuch Blast SCOTUS for Refusing to Hear Major Second Amendment Case

Mon, 26 Jun 2017 10:53:00 -0400

(image) Today the U.S. Supreme Court declined to hear a major case out of California that asked whether the Second Amendment right to keep and bear arms includes the right to carry firearms in public. By refusing to get involved, the Court left in place a ruling by the U.S. Court of Appeals for the 9th Circuit that denied constitutional recognition to the right to carry.

Writing in dissent, Justice Clarence Thomas, joined by Justice Neil Gorsuch, blasted the Court for its failure to act and for its "distressing trend" of treating "the Second Amendment as a disfavored right."

According to Thomas, "the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it." Thomas added, "even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively."

Thomas offered a sharply worded case for why the Court should have taken up the question. Federal circuits, he pointed out, have reached different conclusions and are therefore irrevocably split on this pressing constitutional matter. "This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion. As we explained in Heller, to 'bear arms' means to 'wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.'" As Thomas observed, "I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen."

Today's case, known as Peruta v. California, centered on a state law that says that conceal-carry permits will only be issued to those persons who have demonstrated to the satisfaction of their local county sheriff that they have a "good cause" for carrying a concealed firearm in public. What counts as a "good cause?" In the words of one San Diego official, "one's personal safety is not considered good cause" in and of itself.

What this means in practice, as one earlier court ruling observed, is that "in California the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense is with a concealed-carry permit. And, in San Diego County, that option has been taken off the table."

Despite the strenuous protest of Justice Thomas and Justice Gorsuch, that option remains off the table thanks to the Supreme Court's inaction today.