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  • Commentary posted October 9, 2014 by Elizabeth Slattery The Roberts Court is Not 'Increasingly Conservative'

    Washington Post Supreme Court correspondent Robert Barnes claims that the Supreme Court has become more conservative during John Roberts’ nine-year tenure as Chief Justice. Such a characterization shows a misunderstanding of the role of courts. Rather than label the Roberts Court as “conservative” or “liberal,” it would be more accurate to describe the Court as…

  • Legal Memorandum posted September 18, 2014 by Elizabeth Slattery Overview of the U.S. Supreme Court’s October 2014 Term

    The Supreme Court of the United States begins its next term on October 6, 2014. The 2013 term featured a number of hot-button issues: campaign finance restrictions, racial preferences, pro-life speech outside abortion clinics, unions, legislative prayer, and a challenge to Obamacare’s Health and Human Services (HHS) mandate. Nearly two-thirds of the decisions were…

  • Commentary posted July 24, 2014 by Hans A. von Spakovsky Obamacare’s Almost Surely Going Back to the Supreme Court

    And there you have it, ladies and gentlemen: two different federal courts of appeal, issuing completely contradictory rulings on the very same day, on the very same issue. That’s what happened Tuesday. If nothing else, the dueling rulings should hasten the day when the next phase of litigation involving the Patient Protection and Affordable Care Act reaches the Supreme…

  • Commentary posted July 17, 2014 by Andrew Kloster The Supreme Court's Top Ten Cases

    With the Supreme Court on summer recess, it's time to review the biggest cases of the October 2013 docket. SCOTUSblog's "Stat Pack" notes that the Court this term had a high degree of unanimity and a relative lack of 5-4 decisions. But by margins both large and small, the court issued a number of important cases. Reasonable people can, of course, disagree about the…

  • Commentary posted July 8, 2014 by Hans A. von Spakovsky Eric Holder’s long losing record before the Supreme Court

    If Eric Holder were a baseball player, he’d have been benched long ago — if not kicked off the team. His batting average before the Supreme Court is abysmal, losing again and again in his efforts to undermine the Constitution. This term featured four big strike downs. First was Burwell v. Hobby Lobby, in which the Supremes tossed out ObamaCare’s contraceptive abortion…

  • Commentary posted July 8, 2014 by Jennifer A. Marshall, Sarah Torre RFRA Worked the Way It Was Supposed To in Hobby Lobby

    Today an important religious- liberty law did what it was supposed to do. In Burwell v. Hobby Lobby, the Religious Freedom Restoration Act (RFRA) provided the Supreme Court with a mechanism for weighing competing claims in our pluralistic society. The Court determined that we can, in fact, balance seemingly conflicting interests without throwing out religious…

  • Commentary posted May 2, 2014 by Hans A. von Spakovsky Judges and Voter ID

    To better understand the contrast between an activist, liberal judge who refuses to follow the law and a judge who understands that his job is to follow precedent and the Constitution, consider two recent federal cases on voter-ID laws. On Tuesday, federal-district-court judge Lynn Adelman — a Clinton appointee, former Democratic state senator, and former Legal Aid…

  • Commentary posted April 29, 2014 by Elizabeth Slattery, Hans A. von Spakovsky Will others follow Michigan in banning race preferences?

    In a victory for equality, on April 22 the U.S. Supreme Court upheld a referendum overwhelmingly passed by Michigan voters in 2006 banning discrimination by state and local governments in education, employment and contracting. The Michigan referendum amended the state constitution after Grutter v. Bollinger. In that 2003 decision involving the University of Michigan, the…

  • Commentary posted April 28, 2014 by Elizabeth Slattery You mostly can’t ‘take it all the way to the Supreme Court’

    “I’ll take it all the way to the Supreme Court.” Anyone may say it, but when it comes to getting the Supreme Court to review a case, it’s far easier said than done. The Supreme Court hears only a small number of cases each term, so the odds of getting your case before these nine justices are long, indeed. But there are good reasons why the Court declines to hear most…

  • Issue Brief posted April 25, 2014 by Elizabeth Slattery Supreme Court 101: A Primer for Non-Lawyers

    A common refrain from lawyers is that they will take a case “all the way to the Supreme Court,” but it is easier said than done to get the Supreme Court to review a case. The Supreme Court of the United States agrees to hear only a small number of cases each term, so the odds are stacked against most litigants. The reasons why the Court declines to hear particular cases…

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  • Report posted June 20, 2011 by John Yoo, James C. Ho The Sword and the Purse (Part 2); The President as Commander in Chief

    Under the Articles of Confederation, all war power was vested in a Congress and the United States lacked a formal executive. This arrangement proved unworkable as America’s foreign policy and defense, deprived of executive guidance, floundered. Recognizing the need for an executive to act with swiftness and dispatch in response to foreign threats, the Framers of the…

  • Report posted June 20, 2011 by John Yoo, James C. Ho The Sword and the Purse (Part 1); The Role of Congress in War

    From the retaliatory raids on the Barbary pirates at the turn of the 19th century to the ongoing bombing campaign in Libya, American Presidents have deployed military force several hundred times in the nation’s history. Yet Congress has declared war on only five occasions—and only once to initiate hostilities (the War of 1812 against Britain). There is no inconsistency in…

  • WebMemo posted July 19, 2005 by John McGinnis Advice and Consent: What the Constitution Says

    Editor's Note: Between various presidential nominations now bottled up in the U.S. Senate, and now the intense focus on a nomination to the United States Supreme Court, there have been numerous musings about presidential nominations, the advice and consent of the Senate, and the appointment of judges of the Supreme Court and other officers of the United States. This…

  • Legal Memorandum posted December 13, 2011 by Paul Larkin Overcriminalization: The Legislative Side of the Problem

    Abstract: The past 75 years in America have witnessed an avalanche of new criminal laws, the result of which is a problem known as “overcriminalization.” This phenomenon is likely to lead to a variety of problems for a public trying to comply with the law in good faith. While many of these issues have already been discussed, one problem created by the overcriminalization…

  • Issue Brief posted March 18, 2013 by Ryan T. Anderson, Ph.D. Marriage Matters: Consequences of Redefining Marriage

    The Supreme Court is considering challenges to state and federal laws that define marriage as the union of a man and woman. After lower courts ruled against these marriage laws, the Supreme Court now has the opportunity to uphold the laws and return to citizens and their elected representatives the authority for answering questions about marriage policy. If marriage…

  • Commentary posted October 8, 2013 by Hans A. von Spakovsky The Supreme Court's Latest Opportunity to Restore the First Amendment

    Today, the Supreme Court will hear oral arguments in a case that will give the justices another opportunity to overturn a campaign finance regulation that directly restricts the associational and free speech rights of American citizens. Hopefully, the Supremes will get it right – as the majority did in the Citizens United decision back in 2010 when they threw out an…

  • WebMemo posted June 30, 2011 by Brian W. Walsh The Supreme Court’s Willful Blindness Doctrine Opens the Door to More Wrongful Criminal Convictions

    Willful blindness is not knowledge; and judges should not broaden a legislative proscription by analogy. —Justice Anthony Kennedy, May 31, 2011[1] A recent decision of the Supreme Court of the United States in a patent lawsuit may, somewhat surprisingly, have a major and destructive impact on federal criminal law. In Global-Tech Appliances v. SEB, the high court…

  • Commentary posted April 15, 2014 by Elizabeth Slattery, Hans A. von Spakovsky Congress Can Help End Racial Discrimination

    The federal government wittingly and unwittingly endorses a great deal of racial discrimination in America. A 2011 report by the Congressional Research Service catalogued literally hundreds of government-wide and agency-specific set-aside and preference programs and grants throughout the entire executive branch that amount to some form of racial discrimination. If…

  • Issue Brief posted November 13, 2012 by John Malcolm, Jessica Zuckerman Foreign Intelligence Surveillance Amendments Act of 2008

    In September, the House of Representatives passed the reauthorization of the Foreign Intelligence Surveillance Amendments Act of 2008 (FAA), which made key updates to the authorities granted to U.S. intelligence under the Foreign Intelligence Surveillance Act (FISA). Reauthorization of the bill, which expires at the end of this year, has yet to be taken up by the Senate.…

  • Issue Brief posted April 20, 2012 by Elizabeth Slattery Supreme Court Immigration Showdown: Why States Can Enforce Immigration Laws

    On April 25, the Supreme Court will hear oral arguments in a case with significant implications for immigration policy and enforcement well beyond the immediate statute at issue. Arizona v. United States is a challenge to much of the state enforcement scheme of Arizona Senate Bill 1070 (S.B. 1070), which was enacted to detect and address illegal immigration in Arizona.…

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  • Legal Memorandum posted September 18, 2014 by Elizabeth Slattery Overview of the U.S. Supreme Court’s October 2014 Term

    The Supreme Court of the United States begins its next term on October 6, 2014. The 2013 term featured a number of hot-button issues: campaign finance restrictions, racial preferences, pro-life speech outside abortion clinics, unions, legislative prayer, and a challenge to Obamacare’s Health and Human Services (HHS) mandate. Nearly two-thirds of the decisions were…

  • Issue Brief posted April 25, 2014 by Elizabeth Slattery Supreme Court 101: A Primer for Non-Lawyers

    A common refrain from lawyers is that they will take a case “all the way to the Supreme Court,” but it is easier said than done to get the Supreme Court to review a case. The Supreme Court of the United States agrees to hear only a small number of cases each term, so the odds are stacked against most litigants. The reasons why the Court declines to hear particular cases…

  • Legal Memorandum posted September 23, 2013 by Elizabeth Slattery Overview of the Supreme Court’s October 2013 Term

    The Supreme Court of the United States begins its next term on October 7, 2013. The 2012 term was marked by a series of high-profile civil rights cases: a challenge to the Voting Rights Act coverage formula, a case dealing with racial preferences in higher education, Arizona’s proof of citizenship voter registration requirement, and, of course, the long-awaited same-sex…

  • Backgrounder posted March 27, 2013 by Andrew Kloster Why Congress and the Courts Must Respect Citizens’ Rights to Arbitration

    In 1925, Congress passed the Federal Arbitration Act (FAA),[1] establishing a strong federal policy in favor of arbitration. A form of alternative dispute resolution, arbitration reduces litigation costs, a savings that is passed on to consumers. Despite its advantages, however, arbitration has recently come under attack in Congress, executive agencies, and the courts.…

  • Issue Brief posted March 18, 2013 by Ryan T. Anderson, Ph.D. Marriage Matters: Consequences of Redefining Marriage

    The Supreme Court is considering challenges to state and federal laws that define marriage as the union of a man and woman. After lower courts ruled against these marriage laws, the Supreme Court now has the opportunity to uphold the laws and return to citizens and their elected representatives the authority for answering questions about marriage policy. If marriage…

  • Issue Brief posted November 13, 2012 by John Malcolm, Jessica Zuckerman Foreign Intelligence Surveillance Amendments Act of 2008

    In September, the House of Representatives passed the reauthorization of the Foreign Intelligence Surveillance Amendments Act of 2008 (FAA), which made key updates to the authorities granted to U.S. intelligence under the Foreign Intelligence Surveillance Act (FISA). Reauthorization of the bill, which expires at the end of this year, has yet to be taken up by the Senate.…

  • Backgrounder posted October 10, 2012 by Dominique Ludvigson Circumventing Citizens on Marriage: A Survey

    Abstract: Despite a history of consistent voter support for traditional marriage, the U.S. Supreme Court has been asked to address questions concerning this foundational social institution. The issue has been forced onto the Court’s docket by activist judges who have overruled democratically established marriage policies and by executive branch officials who have…

  • Legal Memorandum posted September 21, 2012 by Paul Larkin, Elizabeth Slattery Overview of the Supreme Court’s October Term, 2012

    Abstract: Given the excitement and importance of the recently concluded Supreme Court term, it is possible that the upcoming term will lack the same dazzling array of issues; just as not every baseball lineup is loaded with players like the 1927 Yankees Murderers Row, not every Supreme Court term is chock-full of Hall of Fame cases. Still, the next few years promise their…

  • Issue Brief posted July 11, 2012 by Nina Owcharenko The Supreme Court’s Medicaid Decision: The Obamacare Mess Just Got Messier

    If the Administration’s attempt to centralize health care decision making in Washington was unworkable, its unconstitutional imposition on the states has made its problems even worse. Long before the Supreme Court’s decision to strike down the Medicaid mandate on the states as unconstitutionally coercive, opponents of the health care law argued that it would be…

  • Issue Brief posted June 27, 2012 by Matt A. Mayer, John Malcolm Childish Reaction to Supreme Court Immigration Ruling: Obama Administration Ends a Key Joint Program with Arizona

    Although both Arizona and the United States prevailed in different parts of the Supreme Court’s immigration ruling this week, the Obama Administration’s immediate response seems like a childish slap in the face of the Supreme Court, Arizona, and any other state that might challenge its authority. Justice Antonin Scalia noted in his dissenting opinion, which would…

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