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Supreme Court

All articles with the "Supreme Court" tag.

Published: Sat, 03 Dec 2016 00:00:00 -0500

Last Build Date: Sat, 03 Dec 2016 06:22:42 -0500


Is Partisan Gerrymandering Unconstitutional?

Thu, 01 Dec 2016 00:01:00 -0500

Ronald Reagan was president when Michael Madigan, a Democrat, became speaker of the Illinois House in 1983. Reagan served two terms and died in 2004, and his name adorns schools, roads, parks and an airport. A generation has passed since he left the White House. And Madigan? He is still speaker, and has been for all but two years since he started. He appears to be as permanent a feature of the Illinois landscape as the Mississippi River. Illinois is a blue state, voting Democratic in the past seven presidential elections. But the Democratic Party's control of the state House is not the simple result of its ability to satisfy the citizenry. Democrats have also had the help of district lines drawn to help them at the expense of Republicans. In 2012, Democratic House candidates got 52 percent of the votes statewide but captured 60 percent of the seats, report political scientist Kent Redfield of the University of Illinois Springfield and policy consultant Cynthia Canary. In 2014, Democrats got 50.5 percent of the vote and 60 percent of the seats. This year, Madigan's party again won 60 percent of the races. That's why Illinois Republicans may side with Wisconsin Democrats on one issue: partisan gerrymandering. In November, a federal district court struck down Wisconsin's legislative map on the ground that it unfairly favors Republicans, who dominate the Legislature. It had been more than three decades since a federal court invalidated a reapportionment plan for partisan bias. In that case, the justices upheld an Indiana redistricting plan but affirmed that a gerrymander could be so biased toward one party as to violate the Constitution. The district court said the Wisconsin plan fits the bill. Republicans captured the Wisconsin Legislature in 2010, just in time for the decennial reapportionment. They made the most of the opportunity. In 2012, GOP candidates got 48.6 percent of the statewide vote—but 60 of the 99 seats in the lower house, the Assembly. In 2014, they got 52 percent of the vote and 63 seats. A scholar they had asked to analyze the plan before its adoption said Democrats would need at least 54 percent of the statewide ballots to regain control of the Assembly. It was a recipe for Republican control in good times and bad. In 1986, the Supreme Court noted that when legislators are entrusted with redistricting, the results are bound to have a partisan tilt. But it concluded there is a limit to what is permissible. "Unconstitutional discrimination occurs," it said, "when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole." Wisconsin Republicans insist they have a natural advantage: Democrats are concentrated in cities, limiting the number of districts in which they enjoy majority strength, while Republicans are more scattered. But the federal court said these facts don't explain the GOP's formidable edge. It is instead the product of efforts to dilute the votes of Democrats by "packing" large numbers into a few districts, where they can't lose, and "cracking" the rest into many more districts, where they can't win. The Supreme Court (which will get this case on direct appeal) has hesitated to intervene in such matters because of a knotty question: how to separate the acceptable and unacceptable types of partisan gerrymandering. The Democrats in Wisconsin offered a formula, devised by Nicholas Stephanopoulos, a University of Chicago law professor, and Eric McGhee, a research fellow at the Public Policy Institute of California, that permits simple assessments. What they refer to as the "efficiency gap" is enough to lock in GOP control in Madison for a full decade under almost any realistic conditions. The court found that the reapportionment violates the First and 14th amendments by intentionally hobbling Democratic voters. Every affected citizen, it said, is "an unequal participant in the decisions of the body politic." Illinois Republicans know how that works. For the moment, partisan gerrymandering favors the G[...]

The Trouble With Trump SCOTUS Contender William H. Pryor

Tue, 29 Nov 2016 11:15:00 -0500

President-elect Donald Trump will soon announce his pick to replace the late Justice Antonin Scalia on the U.S. Supreme Court. Among the 21 potential candidates that Trump has floated so far, one name in particular has many conservatives buzzing with excitement. That name is Judge William H. Pryor Jr. of the U.S. Court of Appeals for the 11th Circuit. In the admiring words of National Review, Pryor "isn't just regarded as a brilliant legal mind; he is viewed as the most rock-ribbed conservative of any potential Supreme Court appointee." Pryor's brand of conservatism was certainly on full display back in 2003 when the U.S. Supreme Court was weighing the constitutionality of a state law that criminalized "homosexual conduct" in a case known as Lawrence v. Texas. At that time Pryor was working as the attorney general of Alabama (Jeff Sessions was his predecessor in that job). In a state amicus brief he filed at the Supreme Court in Lawrence, Pryor came out firmly in defense of every state's unbridled power to incarcerate consenting adults for the supposed crime of having same-sex relations in the privacy of their own homes. "The States can and must legislate morality." To rule otherwise, Pryor's brief declared, would be to enshrine a "sophomoric libertarian mantra." Pryor's career is replete with that sort of stuff. Indeed, it is his social conservatism for which he is perhaps best known—both in and out of legal circles. But there is something else to know about Judge Pryor. Namely, he is an adherent to the legal philosophy known as judicial deference. Judicial deference is the idea that because the judiciary is the least democratic branch of government, judges owe extra respect—or deference—to the actions and decisions of the elected branches of government. In practical terms, that means that the courts are supposed to tip the scales in favor of the government in the vast majority of cases. In the words of Progressive era Justice Oliver Wendell Holmes Jr., one of the Supreme Court's earliest and most influential advocates of judicial deference, "a law should be called good if it reflects the will of the dominant forces of the community, even if it will take us to hell." This deferential philosophy has proven to be quite popular in certain quarters of today's conservative legal movement. The late jurist and scholar Robert Bork, for example, was a thoroughgoing Holmes-ian who insisted that, "in wide areas of life, majorities are entitled to rule, if they wish, simply because they are majorities." Chief Justice John Roberts has taken a similar view. In 2012, for example, when he cast the deciding vote to uphold the constitutionality of Obamacare, Roberts not only cited one of Justice Holmes' opinions, he explicitly invoked Holmes' deferential credo. "It is not our job," Roberts wrote in National Federation of Independent Business v. Sebelius, "to protect the people from the consequences of their political choices." William H. Pryor follows in the deferential footsteps of Holmes, Bork, and Roberts. For example, in a 2007 article published in the Virginia Law Review, Pryor praised the Supreme Court's famous "switch-in-time" decisions from 1937, in which the Court upheld several sweeping New Deal economic regulations. After pointing favorably to National Labor Relations Board v. Jones & Laughlin Steel Corp., in which the Court adopted an expansive new interpretation of congressional power under the Commerce Clause, and to West Coast Hotel Co. v. Parrish, in which the Court overturned its previous line of cases protecting the fundamental right to liberty of contract, Pryor went on to write, "not every controversy requires a judicial resolution or trumping of the will of the majority." In those pro-New Deal opinions, Pryor concluded, "the judiciary wisely has acted with restraint." Justice Holmes could not have said it better himself. To make matters worse, Judge Pryor's pro-government deference extends beyond the realm of economic activity. He also has a troubling record of favoring broad judici[...]

On Flag Burning, Trump Differs With Scalia but Agrees With Clinton

Tue, 29 Nov 2016 10:15:00 -0500

As Jesse Walker noted this morning, Donald Trump thinks flag burning should be criminalized, notwithstanding two Supreme Court decisions saying such expressive activity is protected by the First Amendment. Both rulings were joined by Antonin Scalia, the late justice whom Trump says he wants to replace with someone similar. "Nobody should be allowed to burn the American flag," Trump tweeted. "If they do, there must be consequences—perhaps loss of citizenship or [a] year in jail!" Asked about the comment on CNN, Trump spokesman Jason Miller denied that such a policy would be unconstitutional. Flag burning "is terrible and it's despicable," Miller said. "It absolutely should be illegal." The idea that an act of protest could be offensive but nevertheless legal is apparently beyond Trump's limited understanding of the Constitution. But in the 1989 decision Texas v. Johnson, five members of the Supreme Court, including Scalia and Anthony Kennedy as well William Brennan, Thurgood Marshall, and Harry Blackmun, ruled that the First Amendment precluded criminal punishment of Gregory Lee Johnson for burning a U.S. flag during the 1984 Republican National Convention in Dallas. "Johnson was convicted for engaging in expressive conduct," Brennan wrote for the majority. "The State's interest in preventing breaches of the peace does not support his conviction because Johnson's conduct did not threaten to disturb the peace. Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression." The following year, in U.S. v. Eichman, the same five justices overturned the Flag Protection Act of 1989, which Congress passed in response to Johnson. "Government may create national symbols, promote them, and encourage their respectful treatment," Brennan wrote. "But the Flag Protection Act of 1989 goes well beyond this by criminally proscribing expressive conduct because of its likely communicative impact. We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures [all of which the Court had deemed protected by the First Amendment]. 'If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.' Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering." Scalia later cited the flag burning cases to illustrate how his textualist approach to constitutional interpretation sometimes led him to rule against his personal inclinations. "If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag," he said in a speech last year. "But I am not king." The idea that justices should not simply vote according to their tastes or policy preferences seems foreign to Trump, who in a debate with Hillary Clinton last month promised that "the justices that I'm going to appoint will be pro-life" and will therefore vote to overturn Roe v. Wade. Not that Clinton, despite her legal training and years in public office, was necessarily preferable to Trump on constitutional grounds. She also seemed to view justices as legislators in black robes, arguing that they have an obligation to "represent all of us," oppose "powerful corporations and the wealthy," and stop "dark, unaccountable money" from "distorting our democracy." Clinton even tried to ban flag burning after the Supreme Court had ruled against such laws twice. Like Trump, she thought a year in jail would be an appropriate punishment. Then again, Clinton did not suggest that flag burners should lose their citizenship—a penalty the Supreme Court has said Congress is not authorized to impose.[...]

The Case for Optimism About Trump's Presidency

Fri, 11 Nov 2016 15:40:00 -0500

Since the election of Donald Trump, we've been talking to libertarian policy experts about what a Trump presidency will bring to health care, education, foreign policy, and the justice system. The people we talked to are Michael Cannon of the Cato Institute, Lisa Graham Keegan, former head of education in Arizona, historian Thaddeus Russell, legal scholar Randy Barnett, and defense attorney and legal blogger Ken White of Popehat.

To our surprise, the mood is one of skeptical optimism. All agree that Trump is likely to hand off the details of policy and day-to-day operations to his cabinet secretaries and administrators. In many cases, those people are almost certain to be preferable to ones selected by Hillary Clinton. And even when when they are not, there's reason to believe that a resurgent Congress and bureaucratic inertia will put a stop to Trump's worst desires.

Here are excerpts from recent Reason podcasts. To hear the full conversations, subscribe to the Reason podcast at iTunes and don't forget to rate and review us.

Hosted by Nick Gillespie. Produced by Jim Epstein. Graphics by Austin Bragg.

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Democrats Abandoned the Rule of Law. Under President Trump, Will They Help Restore It?

Wed, 09 Nov 2016 13:50:00 -0500

After Donald Trump's victory last night, "democrats [may become] interested in limiting the scope of federal power, and restoring the separation of powers," says Georgetown University Law Center's Randy Barnett.

"[When] they were holding power, [this] didn't seem to be a problem. Maybe they can now see the problem."

Barnett joined Nick Gillespie for a discussion of what Trump's victory means for constitutional rights and the Supreme Court.

Listen to the interview below, or better yet subscribe to our podcast at iTunes.

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What the Election of Donald Trump Means for the Future of the Supreme Court

Wed, 09 Nov 2016 13:10:00 -0500

(image) The election of Donald Trump has already had a profound impact on the future of the U.S. Supreme Court. First and foremost, say goodbye to the nomination of Judge Merrick Garland, President Barack Obama's languishing pick to replace the late Justice Antonin Scalia. Senate Republicans have been stonewalling the Garland nomination for the past several months, but with the election of Trump, Garland's chances of being confirmed just dropped to absolute zero.

Get ready also to say goodbye to the unconditional liberal love affair with Justice Ruth Bader Ginsburg, aka the "Notorious RBG." Ginsburg is currently 83 years old. Over the past few years, a handful of liberal pundits and activists have been urging Ginsburg to retire now in order to insure that President Obama got to name her replacement. But Ginsburg refused to budge from the bench. Now the possibility of a Democratic president naming her successor is off the table until at least 2020. If Ginsburg retires or dies during Trump's first term, expect for her standing among liberals to plummet dramatically.

Finally, what is Trump himself going to do when it comes to Supreme Court vacancies? We know that Trump has released a list of 21 federal and state judges that he says he will consider nominating to SCOTUS. As I've previously argued, there are some impressive names on that list. But can Trump be trusted to stick to it?

Three months ago I reached out to a group of key figures in the libertarian and conservative legal movements and asked them whether the future of the Supreme Court was a good reason to support Trump in the 2016 election. The answers I got back were largely negative. "Trump is beyond the pale and there's no guarantee Trump's nominees will be any good anyway," said Jonathan Adler, one of the architects behind the 2015 Obamacare legal challenge in King v. Burwell. "There is something deeply contradictory about the notion of electing a power-hungry strongman on the theory that he'll appoint judges that respect and enforce constitutional limits on government," said Alan Gura, the constitutional litigator who argued and won the landmark Second Amendment cases D.C. v. Heller and McDonald v. Chicago before the Supreme Court. These folks care deeply about the Constitution and about the courts and they simply don't trust Trump.

One thing is certain: The battle over the future of the Supreme Court is about to heat up.

'Crooked Hillary' Is No Reason to Restore the Independent Counsel Statute

Mon, 07 Nov 2016 16:00:00 -0500

If there is a President-elect Hillary Clinton, she may find herself missing Justice Scalia. When Scalia died in February, Clinton issued a statement: "I did not hold Justice Scalia's views, but he was a dedicated public servant who brought energy and passion to the bench." Clinton's sweeping disavowal of Scalia's "views" might have been politically convenient for a candidate running in a Democratic primary against Senator Sanders of Vermont. But the way things seem to be headed, it won't be long before President-elect Clinton starts browsing Scalia's dissent in the 1988 case Morrison v. Olson, and asking herself where on earth can be found a lawyer with the principled, prophetic foresight and communication skill of a Scalia. Oh, there's no lack of astute legal talent on Clinton's political side, from Bernard Nussbaum, who as White House counsel advised against the appointment of an independent counsel back in the first Clinton administration, to Nicole Seligman and Karen Dunn. All brilliant lawyers and wonderful people. But what Scalia had was the credibility of having written this, in the Morrison v. Olson dissent: Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support. Nothing is so politically effective as the ability to charge that one's opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, 'crooks.' And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution. Substitute "her" for "his" and "him," and it's a remarkably prescient passage. Scalia had the credibility of having written that back in 1988, when Donald Trump's description of "Crooked Hillary" was not a household term, when no one had heard of Monica Lewinsky or Paula Jones or a private email server or Wikileaks or the Clinton Foundation, and when the administration being hounded by a special prosecutor was that of Ronald Reagan. Already, influential conservatives, anticipating a Clinton presidency, are calling for the restoration of the independent counsel statute that Congress wisely allowed to expire in response to the excesses of Kenneth Starr. But this is a concern that runs deeper than the question of an independent counsel or special prosecutor. It's a bipartisan issue. It's not just Clinton who faces federal investigations. The "Bridge-gate" proceedings in New Jersey grind on, aimed at Donald Trump's transition chairman, Governor Christie, a Republican. In New York, a federal prosecutor, Preet Bharara, has pursued criminal prosecutions against both the Democratic speaker of the assembly, Sheldon Silver, and the Republican Senate Majority leader, Dean Skelos. Bharara has more recently targeted Joseph Percoco, a top aide to the Democratic governor, Andrew Cuomo. In Virginia, a Republican governor, Robert McDonnell, was sentenced to prison; the U.S. Supreme Court unanimously vacated his conviction. Doubtless some politicians are dishonest. But it's far healthier for democracy if the voters get to sort that out in elections. Impeachment is also a constitutional option. The sad fact of it is that the politicians have been ensnared in the same overgrown criminal justice system that managed to entangle Martha Stewart, Conrad Black, and what often seems like half the black male population between the ages of 15 and 35. If some Democrat wants to run against Governor Christie for closing bridge lanes out of political spite, bring on the contest. And if a Republican wants to run against Hillary Clinton on the email or Foundation issues—well, we have just seen one try. Our own sense is that while voters value honesty, they also view it as just one among many competing political virtue[...]

Shrink the Supreme Court?

Thu, 03 Nov 2016 12:01:00 -0400

When you can't win a fair contest, you have a few choices. You can gracefully accept the loss. You can try to do better the next time. Or you can flip the board over and stomp away. Sen. Ted Cruz and some other Republicans are set on the latter course. Since the February death of Justice Antonin Scalia, the GOP-controlled Senate has refused to vote on the nominee to replace him, Merrick Garland. Republicans argued that because the vacancy occurred in an election year, the seat should not be filled until 2017. "The American people should have a voice in the selection of their next Supreme Court justice," said Senate Majority Leader Mitch McConnell. Now, however, some Republicans think the American people should take a long walk off a short pier. With a likely Hillary Clinton victory looming, these senators vow to spurn anyone she might choose for the court, as many times as they have to. "If Hillary Clinton becomes president," Sen. Richard Burr, R-N.C., promised, "I'm going to do everything I can do to make sure that four years from now, we've still got an opening on the Supreme Court." Cruz said, "There is certainly long historical precedent for a Supreme Court with fewer justices." There is also a historical precedent for trying to change the number of justices to achieve outcomes desired by one political party. But it's not what you would call an auspicious one. In 1937, fresh off a landslide re-election, President Franklin D. Roosevelt was unhappy with the court, which had struck down several New Deal initiatives. In his first term, he hadn't been able to appoint a single justice. He saw little chance of getting to put his stamp on it. But Roosevelt was not resigned to letting mere Supreme Court justices impede his ambitions for a more powerful federal government. Because he couldn't get rid of the conservative justices, he came up with another idea: add more seats, which he would gladly fill. He proposed to expand the court by one justice for each sitting justice who was over age 70, to as many as 15 members. As historian David Kennedy notes in Freedom from Fear: The American People in Depression and War, 1929-1945, Roosevelt insisted the change would equip the court better to deal with an evolving nation, since older justices might "avoid an examination of complicated and changed conditions." True, he acknowledged, the court had been made up of nine justices since 1869, but that was no reason to keep the number there. Earlier, it had been set lower or higher. But Roosevelt's plan was so transparently dishonest and political that it blew up in his face. He not only failed but alienated many voters and gave credence to the Republican claim that he was a dictator in the making. "Roosevelt was proposing to fiddle with one of the most respected and immutable American institutions, one designed by the Founders and enshrined in national mythology as the ballast whose unshifting weight could be counted upon to steady the ship of state," wrote Kennedy. Cruz, Burr and other Senate Republicans ought to heed that infamous episode. There is nothing sacred about the number nine. But changing the size of the court in an attempt to influence how it decides future cases would be a cynical assault on the judiciary and republican government—as it was seen to be in 1937. To say that a duly elected president should be endlessly resisted on Supreme Court nominations is to insult the electorate that chose the president. One tradition that makes our system of government work is that while the Senate advises and consents on judicial nominations, it does not presume to choose nominees. Another is that it does not treat Supreme Court vacancies as opportunities for mischief and manipulation. Intractable obstruction invites Democrats to respond in kind, upending conventions for their short-term advantage. Should they gain control of the Senate, they coul[...]

On Transgender Students, Do the Right Thing in the Right Way

Wed, 02 Nov 2016 12:00:00 -0400

A man stabs a woman to death in a crowded store. Dozens of people see him do it. For good measure, he then confesses on tape. Should he be tried for murder, or should society skip the trial and just lock him up? Most people would agree he should be tried despite his overwhelmingly obvious guilt. A nation of laws ought to abide by them. Besides, skipping the trial in this case would set a dangerous precedent. People might want to skip the trial in the next murder—where guilt isn't quite so clear-cut. Here's another scenario: A woman stabs herself to death in a crowded store. Dozens of people see her do it, but nobody tries to stop her. Someone then writes to a federal employee, asking if the failure to stop a suicide qualifies as murder. He says yes, even though the law is silent on the matter. Should the witnesses be charged with murder based merely on his say-so? These are abstract hypotheticals, but they have a real-world parallel in the case of Gavin Grimm—a transgender student in Gloucester, Va. Last week the Supreme Court agreed to hear his case. There's a long backstory, but the upshot is that the Gloucester school system doesn't want to let Grimm, who is anatomically female but who identifies as a male, use the boys' restroom. Grimm has sued, claiming the policy violates federal law prohibiting sex discrimination in public schools. That question is hard enough to answer as it is, because Title IX does not spell out how to treat transgender students; when it was written, the concept had yet to appear. In Grimm's case, the question has been muddled further because the Department of Education has essentially rewritten the law by fiat. The department's view that transgender students must be treated according to their gender identity, rather than their biological sex, was first voiced in a letter. Last January James Ferg-Cadima, an acting deputy assistant secretary for policy in the Office of Civil Rights, sent a three-page letter in reply to a query from Emily Prince, a regulatory lawyer and transgender activist. In his letter, Ferg-Cadima said schools "generally must treat transgender students consistent with their gender identity." The department subsequently reiterated the position in a "Dear Colleague" letter issued jointly with the Justice Department. So to get back to the hypotheticals: On matters of regulatory interpretation, the courts generally defer to the executive agencies, under doctrines known as Chevron and Auer. This can cause—and has caused—immense problems. As an amicus brief filed by the Cato Institute in the Grimm case points out, gratuitous judicial deference to agency interpretation undermines bedrock principles of the rule of law. First, the law should give clear and fair warning—that is, people should be able to figure out in advance if they are breaking it or not. But if an agency can change regulations simply by writing a letter to a private individual, then the only people who know what the law actually says are the bureaucrats in charge of enforcing it. The law thus becomes subject to their arbitrary whim. Second, letting agencies rewrite the law at whim undermines the separation of powers. Those who write the laws are not supposed to enforce them, too. That is why we have three branches: Legislators create laws, agencies apply them, and courts settle disputes about them. If an agency can rewrite the law at will simply by issuing a letter, then agencies can "both write the regulations they are charged with enforcing and later declare just what the ambiguous words of those regulations say, with little-to-no oversight by the courts." In making these points, Cato stresses that it does not support Gloucester's policies on transgender students—or for that matter Grimm's request that the courts strike the policy down. Its concern has to do with the scope of executive po[...]

3 Cheers for Gary Johnson’s Supreme Court Short List

Wed, 02 Nov 2016 10:50:00 -0400

(image) Libertarian presidential candidate Gary Johnson has said that if he's elected president his nominees to the U.S. Supreme Court will be people that are committed to following the text of the U.S. Constitution. Yesterday Johnson doubled down on that promise, releasing a list of six candidates that he says he would consider naming to SCOTUS if he wins the White House. "The Supreme Court should be guided by a loyalty to the original and fundamental principles of limited government and liberty embodied in the Constitution and the Bill of Rights," Johnson announced in a statement accompany the release of his list. "As president, when the opportunity arises, I will nominate justices who have proven records of demonstrating that loyalty to the Constitution."

Libertarians have good reason to be impressed by Johnson's list. Not only does it include Georgetown law professor Randy Barnett, a veteran combatant before the Supreme Court who also happens to be one of the most influential legal scholars at work today; the list also includes two of the most libertarian friendly judges now sitting on the federal bench. They are Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit and Judge Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit.

Judge Kozinski is known for his principled defenses of the First Amendment, the Second Amendment, limited federal powers, and the due process rights of criminal defendants. "I disagree with the liberals on the bench half of the time," he told Reason in 2006, "and the conservatives the other half."

Judge Brown, meanwhile, is revered in libertarian legal circles for her stirring votes in defense of the Fourth Amendment against pro-police "orthodoxy" and in defense of economic liberty against "burdensome regulation" and "a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers." Judge Brown also has the honor—if you want to call it that—of having been denounced as a crazy libertarian by none other than Barack Obama. During Brown's 2005 Senate confirmation to the D.C. Circuit, then-Sen. Obama delivered a lengthy speech on the Senate floor opposing her and all that he thought she stood for. "One of the things that is most troubling is Justice Brown's approval of the Lochner era of the Supreme Court," Obama said. Lochner, of course, refers to Lochner v. New York, the 1905 case in which the Supreme Court struck down a state regulation on the grounds that it did not serve a legitimate health or safety purpose and violated the constitutional rights secured by the 14th Amendment. There's no reason to be troubled by that.

Libertarian Gary Johnson Releases List of Potential Supreme Court Nominees

Tue, 01 Nov 2016 17:35:00 -0400

Libertarian presidential candidate Gary Johnson today released a list of six prospective Supreme Court nominees.

They are:


• Ninth Circuit Court of Appeals Judge Alex Kozinski;

• Libertarian legal scholar Randy Barnett of the Georgetown Center for the Constitution;

• D.C. Circuit Court Judge Janice Rogers Brown;

• Former Republican Congressman from California Tom Campbell, currently Dean of Chapman University School of Law;

• Miguel Estrada, a lawyer with the firm Gibson, Dunn & Crutcher;

• Law professor Jonathan Turley of George Washington University Law School.

Johnson had previously been talking up Turley and Campbell. He also spoke against specific issue litmus tests for Supreme Court picks, as Damon Root reported.

Some past Reason links on some of these choices:

• Interviews with Judge Kozinski from 2013 by Matt Welch and from 2006 by Shikha Dalmia.

Interview with Randy Barnett by Damon Root from June 2016, and with Nick Gillespie from August.

• Damon Root praised Judge Brown in 2015. More praise for Brown's decisions from Root from May 2016.

• ReasonTV interview with Tom Campbell from 2009. Campbell wrote for Reason in 2008 in opposition to the state's Proposition 8, banning gay marriage.

A May 2009 Reason feature speculating on replacements for Justice Souter had votes from our distinguished panel of judge-pickers for Barnett (3), Kozinski (2), Brown (2), and Estrada (1).

SCOTUS Will Consider Challenge to Ban on Social Media Use by Sex Offenders

Mon, 31 Oct 2016 09:45:00 -0400

After beating a traffic ticket in 2010, Lester Packingham exulted on Facebook: "Man God is Good! How about I got so much favor they dismiss the ticket before court even started. No fine, No court costs, no nothing spent….Praise be to GOD, WOW! Thanks JESUS!" That burst of exuberance led to Packingham's arrest and prosecution, because as a registered sex offender in North Carolina he was prohibited from using Facebook or any other "commercial social networking Web site." Last Friday the U.S. Supreme Court agreed to hear his First Amendment challenge to that rule. In 2002, when he was 21, Packingham pleaded guilty to taking indecent liberties with a minor. A first-time offender, he received a sentence of 10 to 12 months, after which he served two years of probation. He was required to register as a sex offender for 10 years. Six years after Packingham's conviction, the North Carolina legislature enacted a law that made it a Class I felony, punishable by up to a year in jail, for a registered sex offender to "access" any commercial website open to minors that facilitates social introductions, allows users to create web pages or profiles that include personal information, and enables users to communicate with each other. That restriction applies to all sex offenders listed in North Carolina's registry, whether or not their crimes involved children or the internet and no matter how long ago they occurred. The law clearly covers social media platforms such as Facebook and Twitter, and it arguably applies even to ubiquitous services such as Google and Amazon, which are not primarily social networking sites but seem to meet the statutory definition. A unanimous state appeals court agreed with Packingham that the law he broke violated his First Amendment rights. Applying intermediate scrutiny, the court concluded that the law "is not narrowly tailored, is vague, and fails to target the 'evil' it is intended to rectify" because it "arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal." The North Carolina Supreme Court reversed that ruling in a 4-to-2 decision last year, finding that the law is mainly aimed at conduct, affecting speech only incidentally, and is narrowly tailored to achieve the state's goal of preventing sex offenders from "prowling on social media and gathering information about potential child targets." The court also concluded that the law leaves open "ample alternative channels for communication," since it exempts sites that bar minors, that are designed mainly to facilitate commercial transactions among users, or that provide a single discrete service such as email, photo sharing, or instant messaging. While Packingham could not legally use Facebook or Twitter, the majority noted, he was still free to swap recipes on the Paula Deen Network, post photos on Shutterfly, look for a job at, or get news updates from the website of WRAL, the NBC station in Raleigh, since all of these sites officially limit registration to users 18 or older. UCLA law professor Eugene Volokh, who worked on a friend-of-the-court brief urging the U.S. Supreme Court to take up the case, questions the state court's understanding of "ample alternative channels," a requirement for applying intermediate rather than strict scrutiny to limits on speech: How can a total ban on some people's use of Facebook, Twitter and the like be said to leave open "ample alternative channels"? [According to the North Carolina Supreme Court,] the people restricted by the law can't read or post to Facebook, Twitter and so on. But no problem—the sex offender still has ample alternative channels, such as the Paula Deen Network,, Glassdoor[...]

How Citizens United Protects a Mezcal Company's Right to Critcize Donald Trump

Sat, 29 Oct 2016 09:30:00 -0400

Way back in July 2015—yes, the election really has been going on that long—thousands of posters bearing the likeness of Donald Trump and the words "Donald eres un pendejo" began appearing around New York City. (That's "Donald, you are an asshole" for those who don't speak Spanish or have never worked in a restaurant kitchen.) The posters were the work of Ilegal Mezcal, a brand of agave spirit imported from Mexico. John Rexer, owner of the brand, was inspired to put up the posters after a conversation with a Mexican waiter who was dejected by Trump's anti-immigrant rhetoric. The phrase has since become closely identified with Ilegal, which has printed it on posters and t-shirts and even projected the image onto Rockefeller Center. The brand has also put on events encouraging drinkers to "take a shot at Trump," donating $2 for every shot of mezcal sold to an educational charity in Guatemala. Trump's anti-immigration stances have been so uniquely reprehensible that even larger brands such as Aeromexico, Tecate, and Corona have addressed them, though typically in a more oblique fashion than Ilegal. "It takes some degree of risk for a brand to take a political point of view but I think Mexican brands have a responsibility to their own people," Rexer told the Guardian. "They do business with the US, and they should be concerned with [Trump's] tone, that not only affects them business-wise but also affects the bigger picture." Messaging like Ilegal's has struck a chord, but it's also in tension with the idea, popular on the political left, that corporations should not engage in political speech. Since the U.S. Supreme Court's Citizens United decision in 2010, it has become common for liberals to assert that corporations don't have free speech rights, that money is not speech, and that corporate expenditures intended to influence politics can be restricted unproblematically. A question worth asking then is: Would a hypothetical President Trump have constitutional authority to forbid mezcal companies from calling him a pendejo? Nothing that Ilegal has done so far would have violated election laws as they stood before Citizens United v. Federal Election Commission. At the time of the decision, the Bipartisan Campaign Reform Act applied only to broadcast, cable, and satellite communications that explicitly mentioned a candidate by name. But if that decision had gone differently, it's also easy to imagine election laws being extended in ways that would have a chilling effect on advocacy. The issue was brought up in a memorable exchange with the Department of Justice's Deputy Solicitor General Malcolm Stewart during initial oral arguments before the Supreme Court. Justice David Souter asked whether there was any limiting principle that would exclude even books from being censored by the Federal Election Commission. If a labor union, for example, wanted to use its treasury funds to hire an author to write a book that explicitly argued for or against a candidate, could the government take action against it? "I think it would be constitutional to forbid the labor union to do that," Stewart conceded. The complexity of the case prompted an unusual second round of oral arguments in which Elena Kagan, then solicitor general, stepped in to argue the government's case. Asked by Justice Ruth Bader Ginsburg if it was still the government's position that the FEC's powers could extend to books, she reversed positions. "The government's answer has changed," she said to laughter in the Court. But pamphlets, which Kagan called "pretty classic electioneering," certainly could be covered. Of relevance to Ilegal's posters insulting Donald Trump, the initial oral arguments made it clear that signs paid for by corporations could[...]

Supreme Court to Weigh in on Transgender Bathroom Panic

Fri, 28 Oct 2016 16:40:00 -0400

(image) The Supreme Court announced this afternoon it will hear the case of a transgender student in Virginia fighting with his school district over which bathrooms and facilities he should be allowed to use.

The transgender teen, Gavin Grimm, has been ordered by the school board in Gloucester County, Virginia, to refrain from using the male restrooms or facilities at his school. They do offer unisex bathrooms, but Grimm is fighting for the right to use the mens' room.

Grimm's argument (and the argument by the Department of Education and Department of Justice) is that denying him access to the bathroom of his chosen gender expression is a form of sex discrimination under Title IX of the Education Amendments of 1972. Opponents argue against such a broad reading.

Title IX has nothing to say about how to treat transgender students and that become part of the conflict. Under a previous Supreme Court precedent (known simply by the "Auer deference" as shorthand), government agencies are generally given deference from the courts to determine how to implement statutes or regulations unless they do something that is contradictory to what the law clearly says.

Some federal courts have agreed with Grimm (and the Obama administration) that such federal deference should apply here, but some schools (and states) have resisted, and other judges have ruled that the administration hasn't followed proper procedures. It seemed inevitable that the Supreme Court would eventually get involved. The court put a temporary stay on the most recent ruling (in Grimm's favor) while it considered whether to take the case.

Today they said yes. The school district asked the Supreme Court to consider the entire concept of the Auer deference precedent, but the court said it will not do so. The Supreme Court will consider whether the Auer deference should apply to the letters sent out by the administration to attempt to resolve this culture war conflict and, much more importantly, whether the administration is correct that Title IX obligates school systems to respect the chosen genders of transgender students to use sex-segregated facilities that match the way they present themselves.

More information about the case from SCOTUSblog here.

The Dumbest Attack on Clarence Thomas You'll Read Today

Wed, 26 Oct 2016 14:00:00 -0400

Clarence Thomas was confirmed to the U.S. Supreme Court 25 years ago this month. To mark the occasion, Thomas's jurisprudence has been examined by journalists, praised by admirers, and assailed by critics. Foremost among the critics is Jeffrey Toobin of The New Yorker. Toobin's dislike of Thomas is well known. Also well known is the fact that Toobin has a bad habit of disregarding the truth when it comes to writing about Thomas. For instance, in February 2014 Toobin labelled Thomas an "embarrassment" because the justice was supposedly half-asleep most of the time on the bench. "His eyelids look heavy," Toobin wrote. "Every schoolteacher knows this look. It's called 'not paying attention.'" That false description was promptly challenged by court-watchers of various ideological stripes, all of whom agreed that Toobin was full of it. In reality, Thomas is often quite energetic during oral arguments. He doesn't ask questions (well, he mostly doesn't ask questions), but he does actively confer with his neighboring justices, particularly Justice Stephen Breyer, and sometimes, according to Thomas, he even suggests the questions that Breyer and other justices do ask. In other words, Toobin's nonsense was debunked. Toobin's latest critique of the conservative justice is titled "Clarence Thomas' Twenty-Five Years Without Footprints." According to Toobin, Thomas has left no "footprints" on the Court because he "has never been assigned a landmark opinion." Thomas is a "radical" and a "court of his own," Toobin charges. "After years at the periphery of the Court, Thomas looks destined to serve out his term at the even more distant fringe." This is a pretty dumb argument, even by Toobin's standards. As any student of the Supreme Court could tell you, some of the most influential justices in American history never wrote a majority opinion in the area of the law in which they ultimately had the most influence. Those particular justices tended to write in dissent—or wrote lone concurrences—yet their arguments slowly but surely moved the Court in their preferred "radical" direction. For example, consider liberal hero Justice Oliver Wendell Holmes Jr. Holmes penned many opinions during his three decades on the Court, but the one that is cited again and again as proof of his wisdom and influence is his solo 1905 dissent in Lochner v. New York, the famous case in which the majority overruled a state economic regulation on the grounds that it did not serve the health or safety of the public and violated the constitutional right to liberty of contract secured by the 14th Amendment. "I think that the word liberty in the Fourteenth Amendment is perverted," Holmes declared, "when it is held to prevent the natural outcome of a dominant opinion." Holmes wanted the regulation to be upheld. In 1905 Justice Holmes was on the Court's "fringe" when it came to the judicial protection of economic liberty. But Holmes's interpretation found its audience among the assorted politicians, lawyers, intellectuals, and activists who comprised the burgeoning Progressive and New Deal movements. (In the moist words of New Deal adviser and future SCOTUS Justice Felix Frankfurter, Holmes "is led by the divination of the philosopher and the imagination of the poet.") In time, those politicians, lawyers, intellectuals, and activists came to occupy the commanding heights of American government, including the Supreme Court bench. Guess what happened then? In March 1937, two years after Holmes' death, a majority of the Supreme Court adopted Holmes's anti-Lochner interpretation. "The Constitution does not speak of freedom of contract," the Court ruled in West Coast Hotel Co. v. Parrish. In short[...]