With today’s decision in Bloate (pronounced “blow-tay”) v. United States, there are only four cases undecided from the October sitting: United States v. Stevens, 08-769 (the First Amendment challenge to the federal prohibition on depictions of animal cruelty); Salazar v. Buono, 08-472 (involving an Establishment Clause challenge to a cross used in a war memorial […]
Archive | Supreme Court
“Reasonable regulation” and McDonald
The following exchange took place during James Feldman’s oral argument today, on behalf of the Chicago government, in McDonald v. Chicago: JUSTICE SOTOMAYOR: Would you be happy if we incorporated it and said, reasonable regulation is part of the incorporation? And how do we do that? MR. FELDMAN: Well, there is the reasonable regulation standard, […]
Why United States v. Miller was so badly written
Before District of Columbia v. Heller, the 1939 decision United States v. Miller was the Supreme Court’s leading decision on the Second Amendment. Miller was, to put it mildly, obliquely written. As Michael O’Shea has detailed, the opinion seems mainly concerned with whether the gun in question was a militia-type weapon, which would suggest that […]
Hamburger’s “Rough Draft” on Privileges or Immunities
By Randy Barnett on February 27, 2010 1:52 am in Constitutional History, Fourteenth Amendment, McDonald v. City of Chicago, Supreme Court, Uncategorized
As Jim Lindgren has noted, on the eve of the argument in McDonald v. Chicago, Philip Hamburger has posted on SSRN what is labeled a “rough draft” of a new paper entitled, Privileges or Immunities. This timing is unfortunate. Given that this is a serious work of scholarship by a serious scholar, it demands serious […]
Philip Hamburger’s New SSRN Paper Provides Evidence Against Incorporation
By Jim Lindgren on February 26, 2010 1:50 pm in Constitutional History, Guns, History, Supreme Court
One of the issues in the McDonald gun rights case before the US Supreme Court is whether the Privileges or Immunities clause of the 14th Amendment was intended to incorporate the Second Amendment. In a new paper available on SSRN, historian Philip Hamburger argues that incorporation was not intended: What was meant by the Fourteenth […]
Justice Obama?
GWU law professor Jeffrey Rosen suggests Barack Obama may have the wrong job. He’s too detached and cerebral . Too deferential to Congress. Too willing to compromise . And he’s too much of a law professor and not enough of a commander in chief, as Sarah Palin recently admonished. These are some of the qualities […]
Relist Watch #2: Harrington v. Richter, the Ninth Circuit, and Ineffective Assistance
By John Elwood on February 16, 2010 4:04 pm in Criminal Procedure, Ninth Circuit Smackdown (Again), Supreme Court
It’s still too early to have much of an idea what the Supreme Court might be doing in Harrington v. Richter, 09-587—but that won’t stop me from blathering about it anyway. The Court has relisted only twice, at the January 15 and 22 conferences, and it has not yet called for the record. But Richter […]
Supreme Court Relist Watch: Thaler v. Haynes and review of Batson claims
As the Supreme Court comes to the end of its nearly month-long recess, I thought it’d be good to review some of the cases the Court has relisted repeatedly in anticipation of what might be coming when the orders list is released Monday Feb. 22. Time permitting–and that is a big “if”—this will be the […]
Gun Nuts vs. Constitution Nuts
Brian Doherty reports on the jockeying between the gun owners challenging Chicago’s gun ban and the NRA in McDonald v. Chicago.
Two Supreme Court Vacancies?!?
ABC News is reporting the White House is preparing for the possibility of two Supreme Court vacancies, as both Justice Stevens and Justice Ginsburg could step down. If so, this could help explain the Adminsitration’s tardiness in making other judicial nominations.
Justice Thomas Defends Citizens United
The NYT reports on recent by remarks by Justice Clarence Thomas at the Stetson University College of Law in which he responded to criticism of the Court’s Citizens United ruling. In addition to defending the underlying rationale of the ruling, he also addressed the Tillman Act — the federal law barring corporate campaign contributions, which […]
Final Cert-Stage Briefing in McCane v. United States
Earlier this afternoon I filed the Reply Brief in McCane v. United States, a pro bono Fourth Amendment case that asks the Supreme Court to review whether the good-faith exception to the exclusionary rule applies to changing law. Here’s the full set of the cert-stage briefs: 1. Petition for Certiorari 2. Brief in Opposition 3. […]
A (Relatively) Brief Followup/Clarification re Roscoe Pound
[You should probably scroll down and start with Orin’s first post on Glenn Beck if you want to follow this thread] First, thanks to Orin for the nice plug for my Rehabilitating Lochner book, which probably won’t be out until about a year from now. Second, just to clarify, my broader concern in criticizing Roscoe […]
Roscoe Pound, Enemy of American Constitutionalism
Below, Orin expresses amazement/bewilderment that Glenn Beck deems Roscoe Pound an important enemy of American constitutionalism, by which I assume Orin means a proper understanding of the U.S. Constitution. I watched the clip, and I’m not going to vouch for Beck’s bizarre claim that Pound was somehow responsible for American lawyers interpreting the Constitution via […]
The Evenhandedness of Justice Thomas’s Noriega dissent
Or, “Elwood on Adler on Dorf on Thomas on Noriega.” As Jonathan Adler notes below, Michael Dorf comments favorably on the evenhandedness of Justice Thomas’s description in his dissent from denial of cert. of the arguments made by Manuel Noriega, even though Prof. Dorf presumes that Justice Thomas, like Dorf himself, would not be persuaded by them. […]