Since I was skeptical about whether the Court was seriously considering using a jurisdictional ruling to dodge the constitutional issue ex ante, the oral arguments yesterday certainly did nothing to dissuade me. Looking around, this seems to be the consensus. Had a lower court not bought the anti-injunction argument, I doubt the Court would have […]
Tag: constitutional law
The hot argument based on today’s argument is likely to be the idea that the Supreme Court will just duck the question of the ACA’s constitutionality using a jurisdictional dodge. It’
Say it, Justice Ginsburg. Much more on this travesty imminently. The short version is that Supreme Court has joined the War on Women by combining a “federalist” doctrine that is embarrassi
The culmination of nearly a decade’s worth of research, Dale Carpenter’s Flagrant Conduct tells the story of Lawrence v. Texas, the landmark 2003 case holding that bans on “sodomy” violated the implicit constitutional right to privacy. Easily the best book of its kind since Richard Kluger’s Simple Justice was published in 1975, Flagrant Conduct is […]
One of the plaintiffs challenging the constitutionality of the Affordable Care Act doesn’t the government has the authority to compel her to purchase health insurance. Rather, she would prefer t
I have a piece for the Prospect that, among other things, argues that making “immutability” a major factor in whether a classification should be subject to heightened scrutiny is anachroni
The landmark criminal procedure decisions of the Warren Court have generally not been overruled, but this is somewhat misleading; in many cases, the precedents formally remain standing, but have been interpreted in ways that give them much less bite. With Miranda v. Arizona, the dilution process continued yesterday. It’s rarely a good sign when you […]
There are a number of problems with Michael Gerson’s column in the Washington Post arguing that the Obama administration’s application of contraceptive coverage requirements to institution
A couple people in comments endorsed Jason Mazzone’s critique of the Ninth Circuit panel’s narrow opinion ruling Prop 8 unconstitutional and asked for my reaction. To paraphrase Byron Whit
The Ninth Circuit has ruled that PropH8 is unconstitutional. I am very concerned that this will undermine Newt Gingrich’s commitment to the sacred institution of heterosexual marriage. Obviously, good news, although the news will ultimately only be as good as Tony Kennedy decides it will. Much more when I’ve had a chance to read the […]
The 10th Circuit struck down the idiotic and flagrantly unconstitutional ban on “sharia” and “international” law passed by the fine citizens of Oklahoma last year. Good; I
Gordon Hirabayashi, a civil rights hero who was arrested while attending my alma mater and ended his career teaching at my native province’s flagship university, passed away at age 93. He wa