Entries Tagged as 'Supreme Court'

Gingrich Finds Judicial Review Inconvenient

December 19th, 2011 at 11:49 am 31 Comments

Newt Gingrich claims to be an historian (rather than, view heaven forbid, salve a lobbyist), who was paid over a million dollars by Freddie Mac. Taking the former House Speaker at his word—if only temporarily—one has to assume that the giant, federally-protected home mortgage security company wanted Gingrich to help it better understand the historical events and forces that have shaped our political processes and institutions; his history lessons, it is implied, would help Freddie further its interests on Capitol Hill and within the Executive Branch. All of that would be a completely legitimate purpose, albeit a tad expensive one (even by K Street standards).

One cannot help but wonder, however, just what Mr. Gingrich said–from a historian’s perspective, of course—about one of the most consequential events in our nation’s history, the 1803 Supreme Court decision known as Marbury vs. Madison.

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Only Yesterday

David Frum December 5th, 2011 at 11:42 pm 24 Comments

Newt Gingrich endorsed Harriet Miers.

Conservatives should feel confident with the selection of Harriet Miers to replace Sandra Day O’Connor on the Supreme Court for a simple reason: George W. Bush selected her.

Res Judicata: The Case for Kagan’s Recusal

November 28th, 2011 at 12:02 pm 49 Comments

The Solicitor General of the U.S. (a position Elana Kagan held in 2010) is the government’s advocate in every case heard in any federal court. Typically the Solicitor will personally argue some cases in the Supreme Court. He or she will certainly be involved with any case that challenges the constitutionality of a federal law.

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Kagan is No Rehnquist

November 15th, 2011 at 9:28 am 64 Comments

Elena Kagan meet Bill Rehnquist. That Bill Rehnquist.

Like Kagan, Rehnquist was once young, smart, and ambitious. Like Kagan, Rehnquist served as a political appointee at the Department of Justice. And like Kagan, Rehnquist was once an Associate Justice of the United States Supreme Court.

But Kagan and Rehnquist have one more thing in common. And it is a big one. As a Supreme Court Justice, each was asked to pass upon the assertions of constitutionality invoked by their former bosses.

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Who is Judge Silberman?

November 8th, 2011 at 4:27 pm 17 Comments

Who is Laurence H. Silberman, the judge who has just written a ruling for the DC Appellate court upholding the President’s healthcare law?

He is a judge who came of age at the time when conservatives were responding to the activism of the Supreme Court in the 50′s and 60′s. He is a significant member of the conservative legal world, with membership in the Federalist Society and with a record of service in the Nixon, Ford, and Reagan administrations.

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To Achieve Social Peace, Overturn Roe

October 25th, 2011 at 6:43 pm 246 Comments

David has made what I think is an interesting analogy about abortion but I think follows the wrong path. He has taken lumps on comparing drink to feticide but the main point needs to be addressed, is abortion comparable to drink or to slavery?

David says we won’t have a war over abortion which I think and hope is true, but the reason we had a war over slavery is that there was an intransient group that was unwilling to allow its preference for slavery to be worked out by the normal politics of America. One side had its views constitutionalized and the other saw the mildest steps-say preventing slavery’s spread-halted by the Court.

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Res Judicata: Leave Tort Reform to the States

October 10th, 2011 at 12:42 am 19 Comments

One tenet of all the Republican campaigns is the demand that Congress enact some type of “litigation reform.” This usually means caps on damages in civil tort litigation in general and punitive damages/pain and suffering awards in particular. Currently, drugstore there are no such limits under the Federal Rules of Civil Procedure.

So a plaintiff with a typical tort case for medical malpractice or a personal injury case filed in the federal courts can seek an unlimited amount of damages. If the jury agrees to award him or her, malady say $10, case 000 in compensatory damages and $1 million in “punitive” damages or for pain and suffering, the jury can do so. The defendant can move after the trial is over to reduce the award on the ground that there was no evidence to support it, and if that fails, the defendant can, of course, appeal.

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Res Judicata: The Poisoning That May Save The 10th Amendment

August 28th, 2011 at 11:59 pm 15 Comments

A crime of passion may be about to change our Constitution.

In June, recipe the Supreme Court allowed a Pennsylvania woman convicted of trying to poison her husband’s mistress to challenge her conviction on unusual grounds:

She argued that the federal law prohibiting any unauthorized use of the chemical amounted to a “massive and unjustifiable expansion of federal law enforcement into state-regulated domain.” The Obama Justice Department first objected to her right to make this argument and submitted a brief to the Third Circuit Court of Appeals in Philadelphia asserting that only states, online not citizens, no rx could challenge a federal law as exceeding Constitutional limits. The Third Circuit agreed and affirmed the dismissal of the challenge.

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Res Judicata: Anthony Kennedy, The Unprincipled Justice

August 22nd, 2011 at 1:52 am 55 Comments

The brewing controversy about President Obama’s healthcare law means that the case will end up in the Supreme Court. One appellate court has upheld the constitutionality of the law (by a 2-1 vote) and another has struck it down (by a 2-1 vote).

Splits on appellate panels are rare. Two split opinions on the same question are even rarer, maybe unprecedented. Within the next month a third appellate court will issue its opinion. Then the Supreme Court will be petitioned to take these cases and decide whether the federal government has the constitutional authority to mandate people to buy health insurance.

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Eleventh Hour for the Mandate

August 15th, 2011 at 12:33 am 45 Comments

Increasing the odds that the only fiscally responsible portion of Obamacare is also unconstitutional, on August 12th the 11th Circuit Court of Appeals struck down the law’s mandate to buy or fund health insurance. (The opinion can be found here.)

As I said when the 6th Circuit reached its decision: we are in it for the long haul and big government cases makes for interesting opinions.

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