Some commentators mistakenly think a federalism-based approach to the DOMA case will cause a flood of litigation and generate massive legal uncertainty, but that’s not the real chaotic threat at the Court. Orin notes the practice of paying people to stand in line for you to get into the Supreme Court for oral argument in important and highly […]
Archive | Supreme Court
Commentary on DOMA and Federalism
By Jonathan H. Adler on March 29, 2013 7:02 pm in DOMA, Federalism, Same-Sex Marriage, Supreme Court
Whatever the merits of the federalism concerns I and others have raised about the Defense of Marriage Act (DOMA), the issue is garnering a fair amount of attention. Here’s a brief round-up of some recent commentary: Mike Dorf, “The Federalism Argument that Should Have Been Made Against DOMA” – arguing that DOMA’s opponents missed an opportunity at […]
Drug-Sniffing Dog on Front Steps Is a “Search”
Today, before hearing oral argument in Hollingsworth v. Perry, the Supreme Court decided Florida v. Jardines. Splitting 5-4 the Court held that when police brought a drug-sniffing dog onto a homeowner’s front porch it did constitute a “search” for purposes of the Fourth Amendment. Orin may have more to say on the merits. Of immediate interest, however, […]
Supreme Court to Consider Michigan Affirmative Action Ban
Among the orders issued by the Supreme Court this morning was a grant of certiorari in Schuette v. Michigan Coalition to Defend Affirmative Action , in which the question is whether a state ballot initiative prohibiting the consideration of race in state university admissions violates the Equal Protection Clause. The case arises from a lawsuit […]
Whelan v. McConnell on Same-Sex Marriage
By Jonathan H. Adler on March 23, 2013 3:43 pm in DOMA, Federalism, Same-Sex Marriage, Supreme Court
On Thursday, Stanford law professor and former federal appellate judge Michael McConnell suggested the Supreme Court should avoid ruling directly on the constitutionality of same-sex marriage by denying Proposition 8’s supporters standing to defend the initiative’s constitutionality and holding that the Defense of Marriage Act exceeds the scope of federal power. NRO’s Ed Whelan, who […]
McConnell on the Same-Sex Marriage Cases
By Jonathan H. Adler on March 21, 2013 10:40 pm in DOMA, Federalism, Same-Sex Marriage, Supreme Court
In Friday’s WSJ, Stanford law professor Michael McConnell, a former judge on the U.S. Court of Appeals for the Tenth Circuit, argues that the Supreme Court should hold that Proposition 8 supporters lack standing to defend the ballot initiative in federal court and that the federal government lacks the power to define marriage. the court need […]
Are the Days of Auer Deference Numbered?
As noted below, Justice Scalia was the lone dissenter in Decker v. Northwest Environmental Defense Center. The reason was not that Justice Scalia has decided to become the Justice Douglas of the 21st century. Rather, it was due to his relatively newfound opposition to Auer deference (aka Seminole Rock deference), under which courts are to defer […]
Justice Scalia, Environmental Champion
Today the Supreme Court decided Decker v. Northwest Environmental Defense Center. By a vote of 7-1 (with Justice Breyer not participating) the Court held that the Clean Water Act and its implementing regulations do not require timber companies to obtain NPDES permits for stormwater runoff from logging roads. The sole dissenter was Justice Scalia, who would […]
Another Interesting Thing About the Kirtsaeng Lineup
In addition to Jon’s observation, another noteworthy thing about Kirtsaeng is that the case was decided 6-3. But wait–the whole reason the Court took Kirtsaeng was to resolve the question the Court couldn’t reach in Costco Wholesale Corp. v. Omega, S.A., because Justice Kagan was recused and the remaining Justices were divided 4-4. So who […]
Today’s Interesting Supreme Court Line-Up
Among the opinions the Supreme Court handed down this morning was Kirtsaeng v. John Wiley & Sons, concerning the application of the first-sale doctrine to copyrighted works sold abroad. I’ll leave the substance of the opinion to others. What interests me is the line-up: Justice Breyer delivered the opinion of the Court joined by the […]
Sex, Drugs, Alcohol, Gambling, and Guns: The Synergistic Constitutional Effects
By David Kopel on March 16, 2013 4:21 pm in Asset Forfeiture, Constitutional History, Constitutional Law, Criminal Law, Federalism, Guns, Supreme Court, Symposia, Tenth Amendment, War on Drugs
That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction: In this Article we discuss the synergistic […]
A Federalism-Based Equal Protection Argument Against DOMA
By Dale Carpenter on March 1, 2013 2:43 pm in Constitutional Law, Equal Protection, Federalism, Same-Sex Marriage, Supreme Court
Over the past few days, the Court has been treated to an avalanche of briefs submitted by law professors, professional associations, prominent Republicans, and even football players arguing that California’s Proposition 8 and Section 3 of the Defense of Marriage Act are unconstitutional. Today I’m proud to join three of my co-Conspirators — Jonathan Adler, Randy […]
No Standing to Challenge FISA Surveillance
Today, in Clapper v. Amnesty International USA, the U.S. Supreme Court held that petitioners Amnesty International, et al., lacked standing to challenge surveillance of international communications under the Foreign Intelligence Surveillance Act. The Court split 5-4 along traditional right-left lines. Justice Alito wrote for the majority opinion. Justice Breyer dissented. Here is the introduction from […]
Today’s Unusual Lineup: Bailey v. U.S.
Among the decisions handed down today by the Supreme Court is Bailey v. United States in which the Court held that it was not reasonable for police to seize an individual incident to the search of the individual’s residence when the individual was stopped and detained some distance from the dwelling in question, and there was […]
Letter to Senator Cruz on constitutional issues in federal gun control proposals
On Tuesday, the U.S. Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights will hold a hearing “Proposals to Reduce Gun Violence: Protecting Our Communities While Respecting the Second Amendment.” Senator Dick Durbin (D-Ill.) is Chair of the Subcommittee, and Senator Ted Cruz (R-Texas) is the Ranking Member. The Subcommittee has solicited letters […]