The U.S. Court of Appeals for the Tenth Circuit, sitting en banc, breathed new life into Hobby Lobby’s religious freedom challenge to the so-called “contraception mandate.” Here is how Judge Tymkovich summarized the court’s holding in the opinion for the court: This case requires us to determine whether the Religious Freedom Restoration Act and the Free […]
Author Archive | Jonathan H. Adler
No Jurisdiction to Review Proposition 8
A divided Supreme Court concluded that it lacks jurisdiction to review the constitutional challenge to Proposition 8, and the line-up is an odd one. The Chief writes the majority, joined by Justices Scalia, Ginsburg, Breyer, and Kagan. Justice Kennedy dissents, joined by Justices Thomas, Alito, and Sotomayor. From the Chief Justice’s opinion: The public is […]
DOMA Goes Down
In a 5-4 opinion, authored by Justice Kennedy, the Supreme Court declares Section 3 of DOMA unconstitutional. It’s an Equal Protection holding, informed by federalism principles. Here is how Justice Kennedy’s opinion for the Court concludes: The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit […]
Making Sense of Shelby County
In several places I’ve seen the same question posed about the majority opinion in Shelby County v. Holder: “What part of the Constitution supports the decision?” Steve Benen, for instance, writes: as I read the ruling (pdf) this morning, I was looking for something specific: why the court majority considers Sec. 4 of the Voting […]
Kennedy’s Conspicuous Silence in Kebodeaux
Justice Kennedy clearly cares about federalism. He has written more than a few opinions extolling the importance of “dual sovereignty” and maintaining judicially enforceable limits on the scope of federal power. Every so often, however, there comes a case in which Justice Kennedy fully and silently joins a majority opinion that embraces an incredibly expansive […]
Misreporting Vance
What is it about civil rights cases that causes otherwise sensible reporters and commentators to lose their senses? The Supreme Court’s controversial Ledbetter was repeatedly mischaracterized by people who should know better. Now, as Walter Olson documents, we’re seeing knowledgeable commentators mischaracterize the Supreme Court’s decision in Vance v. Ball State. Reasonable people will disagree […]
IRS Scandal Still a Scandal (But Still Not “Watergate”)
New revelations about the conduct of Internal Revenue Service (IRS) officials continues to trickle out. Paul Caron’s latest compilation is here. Some of these revelations are significant, but none of them contradict the account of the Inspector General’s report. Recently disclosed documents show that some BOLO (“Be on the Lookout”) documents called on IRS officials […]
Today’s Most Interesting Line-Up
Today the Court issued two traditional 5-4 decisions — Shelby County (the Voting Rights Act case) and Koontz (see here and here). It did not issue either gay marriage decision. It did, however, release Adoptive Couple v. Baby Girl, a case with an interesting line-up. Justice Alito, writing for the Court, held that the relevant […]
Landowners Win in Koontz
The Supreme Court decided in Koontz v. St. John’s River Water Management District that mitigation requirements imposed on land-use permits are subject to the nexus and proportionality requirements of Nollan and Dolan. The decision was 5-4, and probably represents the most significant property rights decision in several years. Justice Alito wrote the majority opinion. Justice […]
Symposium on Greve’s Upside-Down Constitution
Over the past several days Balkinization has hosted a blog symposium on Michael Greve’s book, The Upside-Down Constitution. this is an important and provocative book that simultaneously reifies and challenges much of what people tend to think about the nature of our federal system, and Jack Balkin assembled an appropriately impressive group of commentators on […]
What’s in a Name? (ObamaCare Edition)
From Wonkblog: According to the nonpartisan [Kaiser Family Foundation]’s June tracking poll, support for the health law among Democrats jumps dramatically when labeled “Obamacare,” vs. the plain old “health reform law” language some of us old school media types prefer. . . . According to the poll, overall favorability of the law jumps from 35 […]
Standing Against E15
Among the petitions for certiorari listed for today’s Supreme Court conference are three (1, 2, 3) challenging a misguided standing ruling by the U.S. Court of Appeals for the D.C. Circuit. In Grocery Manufacturers Association v. EPA a divided panel of the D.C. Circuit held that a range of trade associations challenging the Environmental Protection […]
Goldstein on the Court’s “Power”
This morning, SCOTUSBlog’s Tom Goldstein has an essay on the Supreme Court’s power of judicial review. It begins: You should decide now what kind of Supreme Court you want. Don’t wait until after the Justices hand down the Term’s major decisions. That will be too late. Make a real choice now about how much power […]
Political Contributions by Government Lawyers
Paul Caron notes data gathered by Robert Anderson showing that lawyers working for various federal agencies were far more likely to contribute to Democrats than to Republicans in the 2012 election cycle. in some agencies the disparity is quite extreme — much like what one finds on many college campuses. This is not particularly surprising […]
Snowden Did Not Commit Treason
Contrary to the claims of some politicians and others who should know better, Edward Snowden did not commit treason. Treason is a specific crime defined in the Constitution, and it is particularly difficult to prosecute. As Seth Lipsky wrote in the WSJ this week: [T]reason turns out to be unique in American law. It is […]