Posts Tagged ‘constitutional law’

Supreme Court roundup

  • Washington Post “Fact Checker” Glenn Kessler awards Three Pinocchios to prominent Senate Democrats for claiming their body is constitutionally obligated to act on a Supreme Court nomination [earlier]
  • George Will argues that even though the Constitution does not constrain them to do so, there are strong prudential reasons for Senate Republicans to give nominee Merrick Garland a vote [Washington Post/syndicated] A different view from colleague Ilya Shapiro [Forbes]
  • Garland is known in his rulings for deference to the executive branch; maybe this president felt in special need of that? [Shapiro on Obama’s “abysmal record” heretofore at the Court; Tom Goldstein 2010 roundup on Garland’s jurisprudence, and John Heilemann, also 2010, on how nominee’s style of carefully measured liberal reasoning might peel away votes from the conservative side]
  • Litigants’ interest in controlling their own rights form intellectual underpinnings of Antonin Scalia’s class action jurisprudence [Mark Moller, first and second posts] “With Scalia gone, defendants lose hope for class action reprieve” [Alison Frankel/Reuters]
  • OK for private law firms hired to collect state debt to use attorney generals’ letterhead? Sheriff v. Gillie is FDCPA case on appeal from Sixth Circuit [earlier]
  • Murr v. Wisconsin raises question of whether separate incursions on more than one parcel of commonly owned land must be considered together in determining whether there’s been a regulatory taking [Gideon Kanner]

Scalia’s change of mind on agency deference

Initially, Justice Antonin Scalia supported the doctrine (Auer/Seminole Rock) by which courts defer to administrative agencies in interpreting the scope of their regulations. Toward the end of his life, however, he changed his mind. And in that change lies a lesson about the tension between the dangers of arbitrariness and abdication in the judiciary, and how the Constitution goes about addressing that tension [Evan Bernick; earlier]

Amending the Constitution

The National Archives mounts an exhibition of proposed constitutional amendments over the years. To understate matters, not all of them were great ideas [Michael Ruane, Washington Post]

On the idea of an Article V convention to propose constitutional amendments, of which I have been critical lately, you can watch a presentation I gave to the Common Cause national “Blueprint for a Great Democracy” conference held last week.

Originalism and cell phone unlocking

In a case raising some of the same issues as the dispute over forcing Apple to unlock the San Bernardino killer’s iPhone, a federal magistrate judge in New York has ruled that the All Writs Act does not empower courts to order the unlocking of an alleged drug dealer’s phone. The legal issues are complex, but — I argue in a short piece at Ricochet — belie the notion that originalism in judicial interpretation is going to fade away with Justice Scalia no longer on the Supreme Court. More background: Sarah Jeong.

Supreme Court and constitutional law roundup

  • Constitutional right to teach children in a foreign language: the story of Meyer v. Nebraska, 1922 [Dave Kopel]
  • Court to address Indian law issues in three cases this term: right of counsel in tribal courts, conditions of removal from tribal to federal courts, tax authority on former tribal land [Daniel Fisher]
  • As constitutional conservatives go, Rand Paul and Ted Cruz are at odds on Lochner. Why that’s important [Roger Pilon]
  • 2013 Kiobel v. Royal Dutch Shell decision hasn’t killed off Alien Tort cases, especially not in Ninth Circuit [Julian Ku/Opinio Juris on rejection of certiorari in Doe v. Nestle, background John Bellinger/Lawfare]
  • Textbook-resale case from 2013 term, Kirtsaeng v. John Wiley & Sons, is coming back for a ruling on fee award standards in copyright cases [ArsTechnica]
  • High court will review federal court’s jurisdiction to resuscitate denied class certification [Microsoft v. Baker, Ninth Circuit ruling; Fisher]
  • “Maryland Attorney General Brian Frosh: If You Don’t Want To Be Tracked, Turn Off Your Phone” [Motherboard/Vice on stingray surveillance]

Supreme Court and constitutional law roundup

Bundy group’s claims are non-starters legally

Les Saitz in The Oregonian examines the constitutional land and sovereignty claims of the Malheur occupiers, which tend to sound in what I have previously called folk law. Many in the group were arrested last night. One final point: the Bundy group can call itself a militia if it likes, but only in the same sense that Dorothy Parker could call herself the Queen of Rumania. Earlier here.

An article V convention? Wrong idea, wrong time

Some serious constitutional conservatives, such as Texas Gov. Greg Abbott and Rob Natelson for the American Legislative Exchange Council, have been promoting the idea of getting two-thirds of the states to call for an Article V convention to propose amendments to the U.S. Constitution. Florida senator and presidential candidate Marco Rubio recently made headlines by endorsing the notion. But I don’t think it’s a good one, as I argue in this new piece for the Daily Beast (the clickbait headline is theirs, not mine). It begins:

In his quest to catch the Road Runner, the Coyote in the old Warner Brothers cartoons would always order supplies from the ACME Corporation, but they never performed as advertised. Either they didn’t work at all, or they blew up in his face.

Which brings us to the idea of a so-called Article V convention assembled for the purpose of proposing amendments to the U.S. Constitution, an idea currently enjoying some vogue at both ends of the political spectrum.

Jacob Sullum at Reason offers a quick tour of some of the better and worse planks in Abbott’s “Texas Plan” (as distinct from the question of whether a convention is the best way of pursuing them). Much more: Thomas Neale, Congressional Research Service report, 2014. (cross-posted, with some additions, at Cato at Liberty).