Subscribe: Supreme Court
http://reason.com/topics/topic/236.xml
Added By: Feedage Forager Feedage Grade B rated
Language: English
Tags:
amendment  constitution  court  due process  federal  gorsuch  judge  law  neil gorsuch  rights  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 Reason.com articles with the "Supreme Court" tag.



Published: Fri, 24 Mar 2017 00:00:00 -0400

Last Build Date: Fri, 24 Mar 2017 09:42:47 -0400

 



Friday Funnies: Democrats v. Gorsuch

Fri, 24 Mar 2017 07:00:00 -0400

(image)




Neil Gorsuch Vows to ‘Respect’ Supreme Court Precedent. That Does Not Mean He Will Always Uphold Precedent.

Thu, 23 Mar 2017 12:45:00 -0400

(image) Neil Gorsuch has survived his confirmation hearings before the Senate Judiciary Committee and now, barring some unforeseen (and unlikely) disaster, he is well on his way to being confirmed as the next associate justice of the United States Supreme Court.

Gorsuch was interrogated for two full days by the 11 Republicans and nine Democrats of the Senate Judiciary Committee. Regrettably, just like most other recent SCOTUS nominees, Gorsuch mostly dodged the biggest questions, refusing to express his own legal views on most subjects that might conceivably come before him as a judge, including the propriety of various Supreme Court precedents.

What that meant was that almost every time that Gorsuch was asked about a hot-button legal issue—such as the constitutionality of abortion or the legality of gay marriage—he fell back on the same well-rehearsed answer. That issue has been decided by a "precedent of the Supreme Court," Gorsuch said again and again, and was therefore "due all the weight of a precedent of the Supreme Court."

What does that mean? Consider the 2009 Senate confirmation hearings of Sonia Sotomayor. She too was repeatedly asked about hot-button legal issues, particularly when it came to her views on the Supreme Court's 2008 Second Amendment decision in District of Columbia v. Heller. And her answers were also consistent. Heller is an "established" Supreme Court precedent, Sotomayor repeatedly told the Senate Judiciary Committee, and she "accepted" it.

Fast-forward one year later to the case of McDonald v. City of Chicago. Sotomayor is now a sitting justice of the Supreme Court and she joined the dissenting opinion filed in that case by Justice Stephen Breyer, in which Breyer asserted that "the Framers did not write the Second Amendment in order to protect a private right of armed self-defense." That statement is the exact opposite of what the Court held in Heller.

In sum, giving "weight" or "respect" or "acceptance" to "established" precedent is not the same thing as upholding and affirming that precedent. As Neil Gorsuch himself noted this week, the law of precedent has always included the option of overturning precedent in an appropriate case.




Gorsuch Calls Trump's Attacks on Judges 'Disheartening' and 'Demoralizing'

Wed, 22 Mar 2017 10:50:00 -0400

During his confirmation hearing yesterday, Neil Gorsuch publicly repeated his private criticism of the man who nominated him to the Supreme Court, calling President Trump's attacks on the authority of federal judges "disheartening" and "demoralizing." Gorsuch, who currently serves on the U.S. Court of Appeals for the 10th Circuit, said judges "have to accept criticism" but objected to attacks on their "integrity or honesty or independence." Gorsuch was responding to questions from Sen. Richard Blumenthal (D-Conn.), who cited three occasions when Trump questioned the integrity of federal judges who ruled against him: During the presidential campaign, Trump complained that Gonzalo Curiel, the federal judge hearing a lawsuit against Trump University, was hostile to him. Trump suggested that the Indiana-born judge, whom he described as "Mexican," was biased against him because of his promise to block illegal immigration. "I'm building a wall," the candidate told The Wall Street Journal. "It's an inherent conflict of interest." After James Robart, a federal judge in Seattle, issued a temporary restraining order against Trump's travel ban last month, the president tweeted that "the opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!" A subsequent tweet said Americans should "blame him and [the] court system" if a terrorist attack occurred while the case was pending. A few days later, Trump preemptively criticized the 9th Circuit panel that heard his appeal of the TRO, saying, "The courts seem to be so political." After the appeals court upheld Robart's ruling, Trump called it "a political decision." Gorsuch said he recalled those incidents. "I care deeply about the independence of the judiciary," he told Blumenthal. "I can't talk about specific cases or controversies that might come before me, and I can't get involved in politics. But I can say a couple of things about that." Gorsuch said "judges have to be tough," since "we get called lots of names all over the place," and "have to accept criticism with some humility." At the same time, he said, "I know the men and women of the federal judiciary…I know how hard their job is, how much they often give up to do it, the difficult circumstances in which they do it...I know these people, how decent they are, and when anyone criticizes the honesty or integrity or the motives of a federal judge, I find that disheartening, I find that demoralizing, because I know the truth." When Blumenthal asked if "anyone" includes "the president of the United States," Gorsuch replied, "Anyone is anyone." The distinction drawn by Gorsuch, between criticizing a judge's legal reasoning and questioning his integrity or motives, is important because it helps preserve the judiciary's ability to act as a check on the other branches. If a judge gets the law wrong, that is grounds for appeal; if a judge is not really a judge, that is grounds for ignoring him altogether. Likewise if judges reach decisions based on their ethnic or political allegiances instead of the law, which undermines their authority as independent arbiters of cases and controversies. Trump does not recognize this distinction, viewing any judicial interference with his agenda as illegitimate. "We're also taking decisive action to improve our [immigrant] vetting procedures," he said at a Republican fundraiser last night. "The courts are not helping us. I have to be honest with you. It's ridiculous. Somebody [Gorsuch, presumably] said I should not criticize judges. OK, I'll criticize judges." The courts are not supposed to "help" Trump. In fact, they are supposed to hinder him, to the extent that his policies conflict with the law. That is obviously a matter of dispute, and it should be the focus of Trump's criticism.[...]



Revisiting Restrictions on the Right to Bear Arms

Wed, 22 Mar 2017 06:00:00 -0400

You can't legally own a gun if you have been convicted of most felonies with a potential sentence of more than one year of imprisonment (or, if it's a misdemeanor, more than two years). Federal law, at 922(g)(1) of the U.S. Code, makes that clear. But some offenders who were banned from possessing firearms have succeeded in getting lower courts and a federal appeals court to agree that the statute can, in certain applications, violate people's Second Amendment rights.

In January, the federal government applied for certiorari to the Supreme Court in Binderup v. Holder, which consolidates two such cases.

One of the plaintiffs is Daniel Binderup, who had a consensual but illegal sexual relationship with a 17-year-old in 1998. He was sentenced to probation for three years under a misdemeanor conviction. The federal government believes this bars him from legal gun ownership forever, as it was a crime for which he could have been (though he wasn't) given over two years' incarceration.

The other plaintiff is Julio Suarez, who was found with a gun in his car in Maryland without a carry license. He was given 180 days of prison in a suspended sentence, plus a fine and probation.

Attorney Alan Gura, who won two previous Supreme Court cases for Second Amendment rights—Heller in 2008 and McDonald in 2010—is one of Binderup's lawyers. At issue, he says, is whether 922(g)(1) should cover people whose crimes present no evidence of danger to the public, now that gun ownership has been recognized by the Heller decision as an individual constitutional right.

One of the court filings from Binderup's legal team sums up the relevant issue well: "not one word of the Government's brief discusses the critical issue in this as-applied Second Amendment challenge: whether Daniel Binderup's possession of firearms would be in any way dangerous."

In a complicated September 2016 decision, an en banc panel of the 3rd Circuit Court of Appeals declared that Binderup's and Suarez's convictions "were not serious enough to strip them of their Second Amendment rights." Reasons given included that the offenses were nonviolent and earned light sentences.

The government hopes the Supreme Court will reconsider, and its certiorari petition spells out what's at stake from its perspective: "Section 922(g)(1) is by far the most frequently applied…firearms disqualification, forming the basis for thousands of criminal prosecutions and tens of thousands of firearm-purchase denials each year."

Gura already has other 922(g)(1) challenges in process and indicates many more could be waiting in the wings.




Gorsuch’s Smooth Sailing; Ryancare’s Rocky Road

Tue, 21 Mar 2017 19:37:00 -0400

Sadly, though not to anyone's surprise, today's confirmation hearing for Supreme Court nominee Neil Gorsuch did not feature much in the way of Damon Root-caliber questioning. Sen. Dianne Feinstein (D-Calif.) gave unconvincing testimony on behalf of "the little men," Sen. Sheldon Whitehouse (D-R.I.) asked Gorsuch for a definition of the term "dark money" and asked the judge to call for not-required-by-law disclosure of the people who are spending money advocating his nomination, and the reliably inane Dick Durbin (D-Ill.) spent a good chunk of time drilling into a handful of controversial statements by the man who was Gorsuch's dissertation advisor more than two decades ago. By constantly trying to shoehorn the conversation into some Transitive Property-level association with possible racism/sexism/richism, the Democrats reminded us all of why they are in the governing minority all over the country, even at a time with a historically unpopular (compared to his predecessors at this stage in their careers) president.

We talk about all this and more on tonight's Kennedy (Fox Business Network 8 p.m. ET, with replays at midnight). I am on the Party Panel with BoldTV founder Carrie Sheffield and Wall Street Journal U.S. Editor Glenn Hall, and we also discuss the Democrats' shallow bench, some silly university safe-space policy, and whether legal weed is challenging beer for market share. Also talking Ryancare prospects at the top of the show is beloved libertarian-leaning Republican Rep. Thomas Massie of Kentucky.




Neil Gorsuch to Senate Judiciary Committee: 'Yes, the Constitution Definitely Contains Privacy Rights'

Tue, 21 Mar 2017 19:15:00 -0400

In his 2006 book The Future of Assisted Suicide and Euthanasia, Neil Gorsuch expressed significant doubts about the propriety of the U.S. Supreme Court recognizing and defending unenumerated constitutional rights under the Due Process Clause of the 14th Amendment. Citing the work of the late conservative legal scholar Robert Bork, Gorsuch wrote that the Due Process Clause has been stretched "beyond recognition" by the Supreme Court when the Court interpreted it to be "the repository of other substantive rights not expressly enumerated in the text of the Constitution or its amendments." Today Gorsuch was asked about that part of his book during his SCOTUS confirmation hearings before the Senate Judiciary Committee. "I'm interested in your view of privacy," said Sen. Chris Coons (D-Del.). As every con-law aficionado watching immediately understood, Coons was referring to the fact that the right to privacy appears nowhere in the text of the Constitution. Indeed, it is precisely the sort of thing that Gorsuch meant when he referred to (and criticized) "substantive rights not expressly enumerated in the text of the Constitution or its amendments." Coons wanted to know what Gorsuch had to say about the matter now. "Do you believe the Constitution contains a right to privacy?" he asked the nominee. "Yes, Senator, I do," Gorsuch responded. "Privacy is in a variety of places in the Constitution," he said, such in the Fourth Amendment right to be free from unreasonable searches and seizures, as well as in the Third Amendment's prohibition on the quartering of troops in private homes during peacetime. And the Supreme Court has said for decades that the "Due Process Clause protects privacy in a variety of ways," Gorsuch added. "So Senator, yes, the Constitution definitely contains privacy rights." That is a very noteworthy answer. The idea that "the Constitution definitely contains privacy rights" is the exact opposite of what Robert Bork thought about this issue. Indeed, Bork was famous for castigating the Supreme Court for its 1965 decision in Griswold v. Connecticut, in which the Court first recognized a constitutional right to privacy in the course of striking down a state law prohibiting married couples from obtaining birth control devices. The problem with Griswold, Bork wrote in the Indiana Law Journal, was that the Court invented "a new constitutional right" out of thin air. "When the Constitution has not spoken," Bork declared, "the only course for a principled Court is to let the majority have its way." In other words, because the Constitution does not expressly list the right to privacy, the Supreme Court has no business enforcing that unwritten right against legislative enactments. Under the Bork-ian view, only enumerated rights are entitled to judicial protection. Neil Gorsuch certainly seemed to take the Bork-ian view in his 2006 book. But today at his SCOTUS confirmation hearings, Gorsuch seemed to take a different view. In fact, Gorsuch's argument today that "privacy is in a variety of places in the Constitution" sounds a whole lot like the Griswold case's well-known argument that a "zone of privacy" can be found among the "penumbras" and "emanations" of the Constitution's explicit guarantees. Does Gorsuch now reject the Bork-ian view of unenumerated rights? Or was he simply summarizing existing legal doctrine and keeping his own views to himself? I encourage other members of the Senate Judiciary Committee to press Gorsuch with follow-up questions about this fundamental matter of constitutional law and interpretation.[...]



3 Questions for Supreme Court Nominee Neil Gorsuch

Tue, 21 Mar 2017 14:00:00 -0400

src="https://www.youtube.com/embed/Z7lODvGQbkU" allowfullscreen="allowfullscreen" frameborder="0" height="340" width="560">

The Senate Judiciary Committee is holding hearings this week on the nomination of Judge Neil Gorsuch to the U.S. Supreme Court.

Gorsuch is a federal judge with admirers across the political spectrum. But his views on several crucial constitutional issues remain unclear. Here are three questions I'd like to hear Judge Gorsuch address this week before the Senate Judiciary Committee.

1. Congressional Power

The Supreme Court has upheld the power of the federal government to prosecute cannabis users in California under Congress's authority to regulate interstate commerce. Yet the medical marijuana that was the focus of that 2005 ruling was both grown and consumed only in California.

I'd like to hear Judge Gorsuch explain his views on the limits of federal power. Does Congress have the authority to ban a local activity that's legal under state law?

2. Executive Power

The federal courts are currently hearing arguments about the constit utionality of President Trump's ban on travelers from a handful of majority-Muslim countries. According to the Trump administration, the federal courts have no business second-guessing the president's authority on an issue that affects national security.

I'd like to know if Judge Gorsuch agrees that the president's executive orders are beyond the reach of judicial review. How deferential must the federal courts be to the commander in chief?

3. Unenumerated Rights

The Constitution lists a number of individual rights, such as free speech and the right to keep and bear arms. But it also refers to rights that aren't explicitly mentioned.

For example, the Supreme Court has protected the right to privacy, the right of parents to send their children to private schools, and the right to gay marriage. None of these rights are mentioned anywhere in the text of the Constitution.

In his 2006 book, Judge Gorsuch was critical of reading the Constitution in this way. He wrote that the Due Process Clause of the 14th Amendment has been "stretched beyond recognition" in the name of defending unwritten rights.

I'd like to know if Judge Gorsuch thinks the same is true of the 9th Amendment and the Privileges or Immunities Clause, both of which refer to unwritten rights. Does he believe the Constitution protects any rights that aren't explicitly mentioned?

The American people deserve to hear what Judge Gorsuch has to say about these fundamental constitutional issues. Given all the unanswered questions about his jurisprudence, he should fully explain himself at this week's confirmation hearings.

Written by Damon Root. Shot by Jim Epstein. Edited by Joshua Swain.

Click below for full text, links, and downloadable versions

Subscribe to our YouTube channel.

Like us on Facebook.

Follow us on Twitter.

Subscribe to our podcast at iTunes.




3 Questions for Supreme Court Nominee Neil Gorsuch

Tue, 21 Mar 2017 13:00:00 -0400

The Senate Judiciary Committee is holding hearings this week on the nomination of Judge Neil Gorsuch to the U.S. Supreme Court.

Gorsuch is a federal judge with admirers across the political spectrum. But his views on several crucial constitutional issues remain unclear. Here are three questions I'd like to hear Judge Gorsuch address this week before the Senate Judiciary Committee.

1. Congressional Power

The Supreme Court has upheld the power of the federal government to prosecute cannabis users in California under Congress's authority to regulate interstate commerce. Yet the medical marijuana that was the focus of that 2005 ruling was both grown and consumed only in California.

I'd like to hear Judge Gorsuch explain his views on the limits of federal power. Does Congress have the authority to ban a local activity that's legal under state law?

2. Executive Power

The federal courts are currently hearing arguments about the constit utionality of President Trump's ban on travelers from a handful of majority-Muslim countries. According to the Trump administration, the federal courts have no business second-guessing the president's authority on an issue that affects national security.

I'd like to know if Judge Gorsuch agrees that the president's executive orders are beyond the reach of judicial review. How deferential must the federal courts be to the commander in chief?

3. Unenumerated Rights

The Constitution lists a number of individual rights, such as free speech and the right to keep and bear arms. But it also refers to rights that aren't explicitly mentioned.

For example, the Supreme Court has protected the right to privacy, the right of parents to send their children to private schools, and the right to gay marriage. None of these rights are mentioned anywhere in the text of the Constitution.

In his 2006 book, Judge Gorsuch was critical of reading the Constitution in this way. He wrote that the Due Process Clause of the 14th Amendment has been "stretched beyond recognition" in the name of defending unwritten rights.

I'd like to know if Judge Gorsuch thinks the same is true of the 9th Amendment and the Privileges or Immunities Clause, both of which refer to unwritten rights. Does he believe the Constitution protects any rights that aren't explicitly mentioned?

The American people deserve to hear what Judge Gorsuch has to say about these fundamental constitutional issues. Given all the unanswered questions about his jurisprudence, he should fully explain himself at this week's confirmation hearings.

Written by Damon Root. Shot by Jim Epstein. Edited by Joshua Swain.

Subscribe to our YouTube channel.

Like us on Facebook.

Follow us on Twitter.

Subscribe to our podcast at iTunes.




Gorsuch Stresses Independence from Trump in Senate Confirmation Hearings, Says 'No Man Is Above the Law'

Tue, 21 Mar 2017 12:45:00 -0400

(image) Yesterday's opening session of the Neil Gorsuch Supreme Court confirming hearings was defined chiefly by the fact that nothing substantive actually happened. The 11 Republicans and nine Democrats of the Senate Judiciary Committee delivered one long-winded opening statement after another, employing mostly hollow slogans and partisan talking points to mind-numbing effect.

The real action began this morning when Gorsuch and his Senate interrogators finally came to grips. Early questioning centered on a few primary lines of inquiry.

"How do we have confidence in you that you won't be just for the big corporations? That you will be for the little men?" asked Sen. Diane Feinstein, who was up first for the Democrats.

Gorsuch replied by pointing to numerous cases in which his opinions sided with "the least among us," such as ruling in favor of an undocumented immigrant over the Board of Immigration Appeals in a major statutory interpretation case and in favor of multiple criminal suspects in Fourth Amendment cases.

Sen. Patrick Leahy, meanwhile, repeatedly pressed Gorsuch to prove his independence from President Donald Trump and asked Gorsuch to share his legal views on the constitutionality of Trump's recent executive orders banning travelers from certain Muslim-majority countries.

Predictably, Gorsuch refused to weigh in on those ongoing legal disputes.

What about "the president's national security determinations," Leahy pressed on. "Are those reviewable by the Court?" The Trump administration, Leahy pointed out, has "asserted that their national security determinations are un-reviewable by the Court."

"Senator, no man is above the law," Gorsuch replied.

A few minutes later, Republican Sen. Lindsey Graham circled back to the issue of Gorsuch's judicial independence from the president who nominated him.

"Do you agree with me that the detainee treatment act prevents waterboarding?" Graham asked, alluding to President Trump's numerous comments in favor of waterboarding.

"Yes, Senator, that's my recollection of it," Gorsuch replied.

"In case President Trump is watching," Graham said with a smile, "if you start waterboarding people you may get impeached, is that a fair summary?"

Gorsuch demurred on that, saying only that the impeachment power belonged to the Senate and that he refused to speculate about any possible future prosecutions of Trump or anybody else.

"But no man is above the law," Graham stressed.

"No man is above the law," Gorsuch immediately agreed. "No man."

If President Trump is watching, I doubt he will like the sound of that.




Does Neil Gorsuch Side With Clarence Thomas or Antonin Scalia on the 14th Amendment, The Slaughter-House Cases, and the Privileges or Immunities Clause?

Mon, 20 Mar 2017 12:15:00 -0400

Supreme Court nominee Neil Gorsuch has something in common with both Justice Clarence Thomas and with the late Justice Antonin Scalia. All three jurists are known as proponents of originalism, which is the idea that the Constitution should be interpreted according to its original meaning at the time it was adopted. Yet despite their shared affinity for originalism, Thomas and Scalia disagreed on some fundamental questions of constitutional law. Most notably, Thomas and Scalia disagreed about whether the Supreme Court should revive and enforce the original meaning of the Privileges or Immunities Clause of the 14th Amendment. I'd like to know where Neil Gorsuch stands on this crucial divide. Here's the deal. According to the 14th Amendment, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." What are the privileges or immunities of U.S. citizens? According to Republican Congressman John Bingham of Ohio, the author of that section of the 14th Amendment, "the provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States" include both those enumerated rights that are specifically spelled out somewhere in the Constitution—such as in the Bill of Rights—as well as other fundamental rights that are not enumerated in the document. Among the fundamental unenumerated rights that are secured against state abridgment, Bingham told the House of Representatives, was the "constitutional liberty...to work in an honest calling and contribute by your toil in some sort to the support of your self, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil." The 14th Amendment was ratified in 1868. The Supreme Court first ruled on its meaning five years later in a dispute known as The Slaughter-House Cases. At issue was the granting of an exclusive and highly lucrative slaughterhouse monopoly to a private corporation by the Louisiana legislature. According to a number of New Orleans butchers, the monopoly law was an act of pure special interest cronyism that violated their fundamental rights to economic liberty under the 14th Amendment. The Supreme Court disagreed, ruling 5-4 in favor of the state and its corporate beneficiaries. According to the majority opinion of Justice Samuel Miller, to view the Privileges or Immunities Clause as a guarantee of individual rights against any sort of state law or regulation would "fetter and degrade the State governments" and transform the Supreme Court into "a perpetual censor upon all legislation of the States." Miller's opinion effectively gutted the Privileges or Immunities Clause. The principal Slaughter-House dissent was filed by Justice Stephen Field, who argued that the majority had just trashed the original meaning of the 14th Amendment. "It is to me a matter of profound regret that [the monopoly's] validity is recognized by this court," Field wrote, "for by it the right of free labor, one of the most sacred and imprescriptible rights of man, is violated." In Field's view, "the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the states which adopted it." From the standpoint of constitutional originalism, Field had the winning argument. But he failed to carry the day at SCOTUS. Slaughter-House remains what lawyers call "good law" to this day. Which brings us back to Clarence Thomas and Antonin Scalia. In 2010 the Supreme Court finally had the opportunity to revisit The Slaughter-House Cases. At issue in the case of McDonald v. City of Chicago was whether the Second Amendment right to keep and bear arms applies against state and local governments via the 14th Amendment, and if it does apply, is that because the right to keep and bear arms is a [...]



Neil Gorsuch Confirmation Hearings: What You Need to Know About the SCOTUS Nominee

Mon, 20 Mar 2017 09:15:00 -0400

Today the Senate Judiciary Committee begins confirmation hearings on the nomination of Neil Gorsuch to the U.S. Supreme Court. Gorsuch is a respected legal conservative whose admirers come from across the political spectrum. Not only is he immensely popular among Federalist Society members, he has also earned kudos from the liberal-leaning American Bar Association, which deemed Gorsuch "well-qualified" to serve on the Supreme Court. That is the ABA's highest rating for a judicial nominee. Gorsuch is perhaps best known in legal circles as a leading critic of the doctrine known as Chevron deference, which takes its name from the Supreme Court's hugely important 1984 ruling in Chevron U.S.A., Inc. v. Natural Resources Defense Council. According to Chevron, when the federal courts are tasked with interpreting the meaning of an "ambiguous" federal statute, the courts should adopt the statutory interpretation favored by the federal regulatory agency charged with enforcing that statute. What that means in practice is that federal judges are now routinely tipping the scales in favor of such executive branch agencies as the Internal Revenue Service, the Environmental Protection Agency, and the Board of Immigration Appeals. To put it mildly, Gorsuch is no fan of the Chevron approach. In his 2016 concurrence in Gutierrez-Brizuela v. Lynch, for example, Gorsuch denounced Chevron deference as a "judge-made doctrine for the abdication of the judicial duty." As far as Gorsuch is concerned, "under any conception of our separation of powers, I would have thought powerful and centralized authorities like today's administrative agencies would have warranted less deference from other branches, not more." Gorsuch has also been critical of judicial deference to law enforcement agencies. His 2016 dissent in United States v. Carloss, for instance, lambasted the majority's view that police officers had the "implied consent" to enter private property for a warrantless "knock and talk" on a homeowner's front porch when that homeowner had placed numerous "No Trespassing" signs on the property, including on the front door itself. Yet according to the majority's gloss on the Fourth Amendment, Gorsuch remarked, "a homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Even that isn't enough to revoke the state's right to enter." In Gorsuch's view, "this line of reasoning seems to me difficult to reconcile with the Constitution of the founders' design." As I've previously written, "Gorsuch demonstrated admirable and reassuring judgment in these cases. Not only did he cast a principled vote against overreaching law enforcement, he cast a principled vote against the overreaching executive branch. It's not difficult to imagine Gorsuch imposing the same severe judicial scrutiny against the misdeeds of the Trump administration." Many unanswered questions do still remain about Gorsuch's legal views. For example, he has never written a major opinion in an abortion rights case. Likewise, his views on the full scope of presidential power, including the president's authority to direct immigration policy via executive order, remain unclear. Needless to say, there will be plenty of questions about these and other hot-button issues from the members of the Senate Judiciary Committee. To get you up to speed in preparation for today's start to the Gorsuch confirmation hearings, here is a selection of Reason's ongoing coverage of the SCOTUS nominee. Trump Nominates Neil Gorsuch to the Supreme Court 3 Questions for SCOTUS Nominee Neil Gorsuch What Neil Gorsuch's Book on Assisted Suicide Reveals About His Views on Abortion Rights Neil Gorsuch Follows Justice Scalia's Footsteps on Criminal[...]



Why Several Western States Are Watching This Important Property Rights Case

Mon, 20 Mar 2017 08:31:00 -0400

A dispute between a Wisconsin family and their local government could set an important precedent for how the federal government must compensate states when taking land. The case, Murr v. Wisconsin, goes before the U.S. Supreme Court on Monday for oral arguments. The Murr family owns two adjacent plots of land along the banks of the St. Croix River in western Wisconsin, and wants to sell one of the parcels (with an estimated value of $400,000, the family claims) to pay for maintenance on the recreational cabin that sits on the other parcel. The county government, acting under the terms of a 1975 state law, prohibited the family from selling the second parcel and declared the two parcels are effectively a single parcel—a regulatory ruling that the Murr family claims has reduced the value of their land by as much as 90 percent. (For more on the details and background of the case, check out my previous reporting here.) The whole thing seems very narrow and technical—it's almost so provincial that it makes you wonder why the Supreme Court is involved at all—but the key detail is not the fight over whether the Murr's own one 2.5 acre parcel of land or two 1.25 acre parcels of land. No, the real question here is whether the state government has to compensate them for the loss of value. Usually, this is fairly clear cut. The U.S. Constitution says governments must compensate property owners when land is taken for public purposes. In this case, though, the land wasn't necessarily taken, but rather the use of the land was significantly restricted by state regulations regarding where structures can be built relative to waterways, and by the separate decision to merge the two parcels into one without the Murr's consent. The case before the Supreme Court will deal mostly with the question of whether the simple fact of having two adjacent parcels owned by the same person can allow the government to reduce the value of those parcels without having to pay compensation—something the government would not be able to do if the two parcels had different owners. "However you come down on the question of whether there is a taking in [the Murr's] case or not, the answer shouldn't depend on the fact that the owners of one lot also happen to own the lot next door," said Ilya Somin, a professor of law at George Mason University, during a forum on the Murr case hosted Friday by the Cato Institute, a libertarian think tank. Somin has called the case "by far the most important property rights case to come before the Supreme Court this term, and probably the most important in at least two or three years, if not longer." It's the question of compensation that has attracted the interest of several states that are not directly involved in the dispute. Eight western states, led by Nevada, filed amicus briefs with the Supreme Court in support of the Murr's claim. If the state can combine the Murr's parcels of land and not have to compensate the family for the lost value, those states argue, then similar reasoning could leave states vulnerable to large-scale uncompensated encroachment by the federal government. "If regulators do not have to pay compensation to affected property owners in cases where the latter happen to possess contiguous lots, they will often have little incentive to fully consider the costs and benefits of proposed regulations, and prioritize those with the greatest likely beneficial impact," they argue. "Aggregating contiguous parcels under common ownership into a single super-parcel will undermine traditional notions of property rights, have deleterious economic consequences, and encourage the undisciplined regulation of individuals' and states' property." The states are not concerned with whether Wisconsin should have to compensate [...]



What Neil Gorsuch's Book on Assisted Suicide Reveals About His Views on Abortion Rights

Sun, 19 Mar 2017 11:10:00 -0400

(image) The issue of abortion is guaranteed to come up this week when the Senate Judiciary Committee begins confirmation hearings on the nomination of Judge Neil Gorsuch to the U.S. Supreme Court.

As a federal judge, Gorsuch's record on abortion is basically silent. He has not had the opportunity to write an opinion in a major abortion rights case. But his scholarly record is a different matter. Gorsuch's non-judicial writings contain several powerful clues about his views on the constitutionality of abortion.

In his 2006 book The Future of Assisted Suicide and Euthanasia, for example, Gorsuch rejected the case for legalizing assisted suicide on the grounds that "human life is fundamentally and inherently valuable, and the taking of human life by private persons is always wrong." That language seemingly points in an anti-abortion direction.

Furthermore, in that same book, Gorsuch questioned whether the Supreme Court had any business defending any sort of unenumerated constitutional rights under the Due Process Clause of the 14th Amendment. Drawing on the work of conservative legal scholar Robert Bork, Gorsuch argued that the Due Process Clause has been stretched "beyond recognition" when the Court interpreted it to be "the repository of other substantive rights not expressly enumerated in the text of the Constitution or its amendments."

The most famous modern cases dealing with "substantive rights not expressly enumerated in the text of the Constitution or its amendments" are Griswold v. Connecticut (1965), which recognized a constitutional right to privacy, and Roe v. Wade (1973), which said the right to privacy included "a woman's decision whether or not to terminate her pregnancy." Both cases cited the Due Process Clause of the 14th Amendment as a supporting authority.

Gorsuch's arguments about the Due Process Clause strongly suggest that he believes both Griswold and Roe were wrongly decided. The unanswered question is whether or not he believes those decisions should be overturned by the Supreme Court in future cases.

The Senate Judiciary Committee should ask him about that during this week's confirmation hearings.

Related: Questions for Neil Gorsuch on Congressional Power, Executive Power, and Constitutional Rights




3 Questions for SCOTUS Nominee Neil Gorsuch

Thu, 16 Mar 2017 09:15:00 -0400

On Monday the Senate Judiciary Committee will begin confirmation hearings on the nomination of Neil Gorsuch to the U.S. Supreme Court. Gorsuch is a highly respected federal judge with admirers across the political spectrum. But there are still some major unanswered questions about his jurisprudence. Here are three questions that I would like to hear Judge Gorsuch address as he faces the Senate Judiciary Committee next week. 1. Congressional Power The use of recreational marijuana is currently legal in eight states. Yet Congress continues to ban marijuana on the federal level, and the Supreme Court has upheld the federal marijuana ban as a lawful exercise of Congress's power to regulate interstate commerce. The Supreme Court did this in the 2005 case of Gonzales v. Raich, despite the fact that the medical marijuana at issue in that dispute was both grown and consumed entirely within the state of California. I'd like to hear Judge Gorsuch, a self-described constitutional originalist, explain his views on the proper scope of congressional power under the Commerce Clause. Does he think that the federal authority to regulate interstate commerce is broad enough to allow Congress to ban a local activity that is legal under state law and that never crosses any state lines? 2. Executive Power The federal courts are currently hearing arguments about the constitutionality of President Trump's newly revised executive order banning travelers from certain majority-Muslim countries. In February the Trump administration told the U.S. Court of Appeals for the 9th Circuit that Trump's first executive order on this matter was effectively beyond the reach of "even limited judicial review." In fact, according to the Trump administration, the federal courts have no business taking "the extraordinary step of second-guessing a formal national-security judgment made by the President himself pursuant to broad grants of statutory authority." I'd like to know if Judge Gorsuch agrees that the president's executive orders are beyond the reach of judicial review if the orders are ostensibly connected to the president's "formal national-security judgment." How deferential must the federal courts be to president when he is acting in the name of national security? 3. Unenumerated Rights The Constitution lists of a number of individual rights that the government is forbidden from violating, such as the right to free speech and the right to keep and bear arms. But the Constitution also refers to rights that it does not expressly list. For example, the 9th Amendment says, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Likewise, the 14th Amendment says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law." The Supreme Court has recognized and protected a number of unwritten rights over the years, such as the right to privacy, the right of parents to educate their children in private schools, and the right to gay marriage. None of those rights appear anywhere in the text of the Constitution. In his 2006 book The Future of Assisted Suicide and Euthanasia, Judge Gorsuch sharply criticized the Supreme Court for protecting unenumerated rights via the Due Process Clause, claiming that the clause is "stretched beyond recognition" when it is held to be "the repository of other substantive rights not expressly enumerated in the text of the Constitution or its amendments." Judge Gorsuch has apparently rejected the idea of defending unenumerated rights under the Due Process[...]



Why Occupational Licensing is a Due Process Issue

Wed, 15 Mar 2017 12:35:00 -0400

The pursuit of happiness, it seems, does not extend to the pursuit of work. At least that's been the longstanding view of the U.S. judicial system. Judges have been hesitant to identify a due process right to pursuing a lawful occupation, but the recognition of such a right could go a long way towards curbing occupational licensing and other government-created restrictions on who can do what work. David Bernstein, a professor at the Antonin Scalia Law School at George Mason University, believes economic freedom can win favor with conservative and (perhaps surprisingly) even more so with liberal judges. As Bernstein writes in a paper recently published by the Yale Law Journal Forum, there have been just two Supreme Court cases since the New Deal that expressly dealt with this question of whether an individual's right to pursue an occupation is covered by the Due Process Clause of the Fourteenth Amendment. Neither of those two decisions—Williamson v. Lee Optical (1955) and Ferguson v. Skrupa (1963)—should be seen as definitively closing down the possibility of judicial review of occupational licensing laws, or other legislative efforts to restrict employment, Bernstein argues. In the decades since those rulings, though, the Supreme Court has embraced arguments about substantive due process to uphold so-called "unenumerated rights"—that is, rights not explicitly written into the U.S. Constitution or the Bill of Rights—like the right to an abortion and the right to same-sex marriage. But the court hasn't thrown the doors wide open. In a 1997 case (Washington V. Glucksburg) where the Supreme Court unanimously rejected a due process argument for the right to commit suicide, Chief Justice William Rehnquist, writing for the majority, outlined when and how the Supreme Court could recognize such unenumerated rights. In order to be recognized as fundamental, Rehnquist wrote, those rights must be "deeply rooted in the Nation's history and tradition." "The right to pursue an occupation free from arbitrary government action is certainly deeply rooted in American history," argues Bernstein. In some ways, this is a throwback to an older interpretation of due process rights. The Supreme Court did recognize the right to earn a living in pre-New Deal cases. Meyer v. Nebraska, for example, refers to "the right...to engage in any of the common occupations of life." It's not that the right no longer exists, but that it's now subject to something called rational basis deference, which means it mostly loses in court because judges give legal deference to almost any justification offered by government for restricting occupational freedom. The U.S. Supreme Court won't get a chance to address that issue this year, but some state courts are warming up to the idea that the Fourteenth Amendment's due process protections can extend to the right to pursue an occupation. The Texas Supreme Court has gone the farthest so far, with a 2015 ruling in Patel V. Texas Department of Licensing and Regulation that invalidated a state law requiring practitioners of eyebrow threading to obtain a cosmetology license—an expensive and time-consuming process that includes limited, if any, instruction in the actual skills of eyebrow threading. The ruling is significant because the court set a new, higher standard for the government to meet before imposing rules that limit individuals' economic freedom. Bernstein spoke with Reason about how courts might recognize a right to pursue work. The conversation has been lightly edited for length and clarity: Reason: I think most people would be somewhat surprised to learn that there's no clear-cut constitutional right—not even one that's imp[...]