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  • Commentary posted July 25, 2016 by Hans A. von Spakovsky, Elizabeth Slattery Why Republicans Should Not Fold On Garland's Nomination

    Some pundits, such as Leon Wolf at RedState, are urging Senate Republicans to quickly confirm President Obama’s nominee, Merrick Garland, to fill the Supreme Court vacancy left by the sudden passing of Justice Antonin Scalia in February. Wolf argues that there’s “absolutely no reason to drag this out any longer” because “Republicans must know that there is absolutely no…

  • Commentary posted July 25, 2016 by Elizabeth Slattery The Scalia Election

    The just-concluded Supreme Court term starkly makes the case for why the Court should be at the forefront of every voter’s mind this November. The sudden passing of Justice Antonin Scalia in February led to deadlocks and compromises in some of the biggest cases of the term, highlighting the importance of every seat on the Court. Whomever the next president selects as…

  • Commentary posted July 25, 2016 by Hans A. von Spakovsky, Elizabeth Slattery Left Disappointed with "Old White Guy" Supreme Court Nominee

    Once a lecturer at the University of Chicago law school, President Obama returned to his old stomping grounds to make the case for confirming his Supreme Court nominee, D.C. Circuit Chief Judge Merrick Garland. Many on the Left have bemoaned the fact that Garland is “an old white guy.” More specifically, he’s a 63-year-old Jewish, Ivy-League-educated white guy. Several…

  • Commentary posted July 25, 2016 by Elizabeth Slattery Obama Can't Rewrite the Law

    The president does not have the power to create or rewrite legislation — that is Congress’s job. He is not authorized to dispense with or suspend the law. British kings made this practice familiar to the Framers of the Constitution, who deliberately chose to deny such a power to the president. Yet while history books are filled with disputes between the president and…

  • Commentary posted June 25, 2016 by Elizabeth Slattery A Disappointing Decision, but More Lawsuits Are on the Way

    Yesterday’s ruling in Fisher v. University of Texas at Austin was disappointing, to say the least. Justice Anthony Kennedy’s majority opinion, allowing UT to continue using a race-conscious admissions program without sufficiently articulating its “diversity goal” or providing proof that it was meeting that goal, betrays his previous equal protection jurisprudence and the…

  • Commentary posted February 25, 2016 by Kim R. Holmes, Ph.D. Has the Supreme Court Become Too Powerful?

    The stakes are high -- very high. Finding a replacement for deceased Supreme Court Justice Antonin Scalia will be a battle royal. But why should one government official's position be so existentially important? Yes, control of the Supreme Court hangs in the balance, but that begs the question of why the court itself is so powerful. Could it be that the answer to that…

  • Commentary posted February 25, 2016 by Hans A. von Spakovsky, Elizabeth Slattery Obama and Juan Williams Need a Lesson on the Constitution and the Facts on Judicial Nominations

    Someone should remind President Obama and Juan Williams what the Constitution actually says about confirming nominees. They seem unaware of how the process works. They also appear ignorant of the facts regarding the many judicial nominees the president has had confirmed over the past seven years. First of all, the claim by Juan Williams that race “has something to do”…

  • Commentary posted September 25, 2015 by Hans A. von Spakovsky Washington, D.C. Loses Another Gun Rights Case

    Seven years after the U.S. Supreme Court struck down the District of Columbia’s ban on handguns, D.C. has lost another gun case before the U.S. Court of Appeals for the District of Columbia — one that involves the very same plaintiff, Dick Heller. In the latest case, Heller v. District of Columbia, a three-judge panel has thrown out several gun registration…

  • Commentary posted July 8, 2014 by Alden Abbott Supremes Preserve Fraud on the Market (and Bail Out Class Action Plaintiffs) - Time for Congress to Kill it

    On June 23 the Supreme Court regrettably declined the chance to stem the abuses of private fraud-based class action securities litigation.  In Halliburton v. EPJ Fund (June 23, 2014), a six-Justice Supreme Court majority (Chief Justice Roberts writing for the Court, joined by Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan) reversed the Fifth Circuit and held that a class…

  • 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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  • Commentary posted July 8, 2014 by Alden Abbott Supremes Preserve Fraud on the Market (and Bail Out Class Action Plaintiffs) - Time for Congress to Kill it

    On June 23 the Supreme Court regrettably declined the chance to stem the abuses of private fraud-based class action securities litigation.  In Halliburton v. EPJ Fund (June 23, 2014), a six-Justice Supreme Court majority (Chief Justice Roberts writing for the Court, joined by Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan) reversed the Fifth Circuit and held that a class…

  • Commentary posted September 4, 2013 by Hans A. von Spakovsky Amendments for Liberty

    Mark Levin’s new book (The Liberty Amendments: Restoring the American Republic, published by Simon & Schuster) should be required reading for conservative bloggers, reporters, radio talk-show hosts, state legislators, members of Congress, and grassroots activists all over America. It provides a coherent plan to restore our constitutional republic, reversing the damage…

  • Commentary posted February 25, 2016 by Hans A. von Spakovsky, Elizabeth Slattery Obama and Juan Williams Need a Lesson on the Constitution and the Facts on Judicial Nominations

    Someone should remind President Obama and Juan Williams what the Constitution actually says about confirming nominees. They seem unaware of how the process works. They also appear ignorant of the facts regarding the many judicial nominees the president has had confirmed over the past seven years. First of all, the claim by Juan Williams that race “has something to do”…

  • Commentary posted February 25, 2016 by Kim R. Holmes, Ph.D. Has the Supreme Court Become Too Powerful?

    The stakes are high -- very high. Finding a replacement for deceased Supreme Court Justice Antonin Scalia will be a battle royal. But why should one government official's position be so existentially important? Yes, control of the Supreme Court hangs in the balance, but that begs the question of why the court itself is so powerful. Could it be that the answer to that…

  • Commentary posted July 25, 2016 by Hans A. von Spakovsky, Elizabeth Slattery Why Republicans Should Not Fold On Garland's Nomination

    Some pundits, such as Leon Wolf at RedState, are urging Senate Republicans to quickly confirm President Obama’s nominee, Merrick Garland, to fill the Supreme Court vacancy left by the sudden passing of Justice Antonin Scalia in February. Wolf argues that there’s “absolutely no reason to drag this out any longer” because “Republicans must know that there is absolutely no…

  • Commentary posted July 25, 2016 by Elizabeth Slattery The Scalia Election

    The just-concluded Supreme Court term starkly makes the case for why the Court should be at the forefront of every voter’s mind this November. The sudden passing of Justice Antonin Scalia in February led to deadlocks and compromises in some of the biggest cases of the term, highlighting the importance of every seat on the Court. Whomever the next president selects as…

  • Commentary posted July 25, 2016 by Hans A. von Spakovsky, Elizabeth Slattery Left Disappointed with "Old White Guy" Supreme Court Nominee

    Once a lecturer at the University of Chicago law school, President Obama returned to his old stomping grounds to make the case for confirming his Supreme Court nominee, D.C. Circuit Chief Judge Merrick Garland. Many on the Left have bemoaned the fact that Garland is “an old white guy.” More specifically, he’s a 63-year-old Jewish, Ivy-League-educated white guy. Several…

  • Commentary posted June 25, 2016 by Elizabeth Slattery A Disappointing Decision, but More Lawsuits Are on the Way

    Yesterday’s ruling in Fisher v. University of Texas at Austin was disappointing, to say the least. Justice Anthony Kennedy’s majority opinion, allowing UT to continue using a race-conscious admissions program without sufficiently articulating its “diversity goal” or providing proof that it was meeting that goal, betrays his previous equal protection jurisprudence and the…

  • Commentary posted September 25, 2015 by Hans A. von Spakovsky Washington, D.C. Loses Another Gun Rights Case

    Seven years after the U.S. Supreme Court struck down the District of Columbia’s ban on handguns, D.C. has lost another gun case before the U.S. Court of Appeals for the District of Columbia — one that involves the very same plaintiff, Dick Heller. In the latest case, Heller v. District of Columbia, a three-judge panel has thrown out several gun registration…

  • Commentary posted July 25, 2016 by Elizabeth Slattery Obama Can't Rewrite the Law

    The president does not have the power to create or rewrite legislation — that is Congress’s job. He is not authorized to dispense with or suspend the law. British kings made this practice familiar to the Framers of the Constitution, who deliberately chose to deny such a power to the president. Yet while history books are filled with disputes between the president and…

Find more work on Federal Judicial Branch
  • 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 October 9, 2013 by Michael Stern The Supreme Court Considers the President’s Power to Make Recess Appointments

    In its new term, the Supreme Court of the United States will consider National Labor Relations Board v. Noel Canning, a challenge to President Barack Obama’s January 4, 2012, recess appointments to fill three National Labor Relations Board (NLRB) vacancies. At the time of these appointments, every three days, the Senate was conducting pro forma sessions during which no…

  • Legal Memorandum posted July 31, 2013 by Paul Larkin “Sauce for the Goose Is Sauce for the Gander”: Treating Private Parties and Government Officials Alike Under the Criminal Law

    While Congress is principally responsible for overcriminalization,[1] the federal courts deserve their share of the blame.[2] In their readiness to interpret federal statutes broadly, the federal bench has created expansive rules of direct and vicarious criminal liability.[3] In that process, however, the courts have not stopped to ask the question, “Should the same rules…

  • Legal Memorandum posted July 17, 2013 by Hans A. von Spakovsky The Unfair Attack on Arbitration: Harming Consumers by Eliminating a Proven Dispute Resolution System

    I should dread a lawsuit beyond almost anything else short of sickness and death. —Judge Learned Han[1] Over the past several years, there have been numerous attacks in the courts and in Congress on the Federal Arbitration Act (FAA) and the arbitration process. Critics want to eliminate the use of arbitration in consumer and employment disputes, claiming that it is…

  • 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.…

  • 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 May 22, 2012 by Andrew M. Grossman Dismissing Padilla v. Yoo: A Glass Half Empty?

    The Ninth Circuit correctly dismissed Jose Padilla’s lawsuit against John Yoo, the former Department of Justice official who provided key analysis of legal questions arising from the war on terrorism. But being the traditionally liberal and oft-reversed Ninth Circuit, the court could not leave well enough alone and issued an opinion that casts doubt on the lawfulness of…

  • Issue Brief posted May 10, 2012 by Paul Larkin The FOCUS Act Hearing: Unpersuasive Criticisms and Tacit Admissions

    Thankfully, the law sometimes reflects common sense. Here’s an example: Innocent people ordinarily do not remain silent when accused of having committed a crime or some other misconduct. As the result, it is reasonable to infer that such an accusation is true if a person does not deny it. In the law, that sensible proposition is embodied in the doctrine of “Tacit…

  • Issue Brief posted March 20, 2012 by Charles "Cully" Stimson, Elizabeth Slattery Juvenile Life Sentences: Constitutionality of Life Without Parole for Teenage Murderers

    On Tuesday, March 20, the Supreme Court hears oral argument in two cases involving the constitutionality of sentences of life without parole (LWOP) for teenage murderers. The real issue before the Court is this: Will the Court again “find” or “invent” a heretofore undiscovered constitutional prohibition and thus strike an entire category of sentences for the most violent…

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