That’s the question raised by a lawsuit in Colorado’s federal district court, in the case of Kerr v. Hickenlooper. In an amicus brief, I suggest that the answer is “no.” The brief relies heavily on the scholarship of my Independence Institute colleague Rob Natelson, who happens to be the leading scholarly expert on the Guarantee […]
Archive | Supreme Court
The rise and fall of the Second Amendment “collective right”
By David Kopel on September 5, 2011 3:38 pm in Constitutional History, Constitutional Law, Guns, History, Militia, Supreme Court
My recent article for America’s 1st Freedom traces the rise and fall of the theory that the Second Amendment is not an individual right, but instead is a “collective right,” which, like “collective property” in a communist country, supposedly belongs to everyone collectively, but in fact belongs to no-one. The theory was created by a […]
Chief Justice Roberts and Current Legal Scholarship
CQ‘s Kenneth Jost assesses “Chief Justice Roberts’ Ill-Informed Attack on Legal Scholarship” on his blog. As had been widely reported and discussed, Chief Justice Roberts was dismissive of the value of much legal scholarship at the Fourth Circuit judicial conference in June. “Pick up a copy of any law review that you see,” Roberts said, […]
Follow Up on Breyer Op-ed
My co-authored op-ed on Justice Breyer’s jurisprudence has stirred a bit of controversy. The basic point of the op-ed is that, as political scientist Ken Kersch puts it in a great scholarly review of Breyer’s book “Active Liberty”, Breyer’s intellectual roots are less in the sort of modern liberalism that animated the likes of William […]
Justice Breyer on Recusal
At a recent Aspen Institute conference, Justice Breyer was asked whether Justice Thomas should recuse himself if and when the health care litigation reaches the Supreme Court. The Daily Beast reported on his response: “This is a false issue,” Breyer said in response to an audience member who posed a hypothetical case loosely fitting Thomas’ […]
In Praise of the Cert Pool . . . dot com
Now that the real business of October Term 2010 is over, I just wanted to say a few words in praise of the cert pool. No, not that cert pool. The certpool.com, a website run by Austin appellate lawyer Don Cruse that tracks the progress of petitions by federal courts of appeals and by state […]
Which Justices Vote Together?
It’s commonly assumed that Justices Scalia and Thomas are the two Supreme Court justices who are most likely to vote together. However much that may have been true during Justice Thomas’ first several years on the Court, it is becoming less true over time. This past term, according to statistics collected by the folks […]
Businesses’ Record Before the Court This Term
My Mayer Brown LLP colleague Andy Pincus — one of the top business appellate lawyers in the country (and one of the top appellate lawyers in the country, period) — is testifying this morning before the Senate Committee on the Judiciary (full hearing web page here) about businesses’ record before the Court this Term. His […]
The Roberts Court and Business Revisited
Tomorrow morning the Senate Judiciary Committee will hold a hearing on “Barriers to Justice and Accountability: How the Supreme Court’s Recent Rulings Will Affect Corporate Behavior.” According to Committee Chairman Patrick Leahy (D-VT), the hearing is the latest in a series examining “how the Court has misinterpreted laws meant to protect consumers and employees, shielded […]
Scalia Dissents from Denial in Four More ACCA Cases
The Supreme Court denied certiorari in four cases in which criminal defendants challenged lower court decisions that their crimes constituted “violent felonies” under the Armed Career Criminal Act (ACCA). The justices apparently had enough of the ACCA (at least for now) in Sykes v. United States, but not Justice Scalia. He dissented in Sykes, arguing […]
Brown v. EMA casts doubt on the “weapons effect” justification for gun control
By David Kopel on June 27, 2011 9:38 pm in Child Protection, Constitutional Law, Expert Evidence, First Amendment, Freedom of Speech, Guns, Supreme Court
The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport toshow a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them,6 and with good reason: They […]
Justices “Split Largely Along Gender Lines”
An often-reprinted L.A. Times article about last week’s Wal-Mart decision noted that the Justices split “largely along gender lines” on one of the issues: The majority, who had a position that was least open to a combined class-action lawsuit by as many as 1.5 million women who were allegedly discriminated against by Wal-Mart, consisted of […]
The Final Four
This morning, the Supreme Court is expected to issue merits opinions in the four remaining cases from the October 2010 term. Don’t expect unanimous opinions. Some of these cases have been under consideration for some time. Two were argued in January, and one last November. The last four cases are: Brown v. Entertainment Merchants Association […]
Alito v. Sotomayor?
Last Sunday, the Washington Post ran a story comparing Justice Alito with Justice Sotomayor. The comparison is interesting as they are the only justices on the court with prosecutorial experience and much direct experience with trial court proceedings (although Sotomayor has substantially more than Alito). The Supreme Court’s two former prosecutors sit on opposite ends […]
A Nightmare Justice
Imagine a twentieth century Justice who was a Social Darwinist; who had a self-proclaimed disdain for facts, and who often substituted flip aphorisms for legal analysis; who was the most hostile Justice of the century to the rights of African Americans, dissenting even in cases invalidating peonage laws as violations of the Thirteenth Amendment; who […]