In a prior post, I discussed the Pidgeon v. Turner case, now pending before the Texas Supreme Court, involving a taxpayer challenge to same-sex spousal benefits. Oral argument was held on March 1. The taxpayers challenging the city of Houston’s policy of granting same-sex spousal benefits to city employees were represented at oral argument by Jonathan Mitchell, a former Scalia clerk, former Texas solicitor general, and now a visiting professor at Stanford law school. The city of Houston was represented by Douglas Alexander, a leading appellate practitioner in an Austin law firm whose partners include former Texas Chief Justice Wallace Jefferson. The oral argument was superb, and both counsel fielded numerous questions from the fully-engaged justices.
The disquieting spectacle of three unelected judges (all appointed by President Barack Obama) enjoining the signature initiative of the newly inaugurated President Donald Trump, without even citing the statute—8 U.S.C. section 1182(f)—that expressly authorizes the action they just stopped, has focused public attention as never before on the threat posed by liberal judicial activism to our system of self-government.
The Supreme Court’s fractured decision in Obergefell v. Hodges (2015) required states to recognize same-sex marriage. Obergefell came less than 30 years after Bowers v. Hardwick, in which the court refused to recognize a right to engage in homosexual sodomy. In changing its mind, the Court effectively amended the U.S. Constitution with its Delphic utterances.
President Trump’s nomination of 10th U.S. Circuit Court of Appeals Judge Neil Gorsuch to the U.S. Supreme Court will be met by fierce resistance by Democrats in the Senate and unrelenting demagoguery from left-wing groups and media outlets. About that there can be no doubt. (American Greatness readers may recall a reference to Gorsuch in my December 22 article, “The Trump Court: SCOTUS Could Stand Some Disruption.”)
In 1942, deciding the case of Wickard v. Filburn, the U.S. Supreme Court deemed the wheat grown by an Ohio farmer purely for his own use and consumption—not for sale—to “exert a substantial effect on interstate commerce.” This infamous decision led many to conclude that the scope of Congress’s authority under the Commerce Clause is essentially unlimited.
Were the Founding Fathers anarchists? Did the ideas contained in John Stuart Mill’s On Liberty, published in 1859, somehow inspire the delegates to the Constitutional Convention in 1787? Does the Constitution contemplate Robert Nozick’s minimal state, presaging his 1974 magnum opus Anarchy, State, and Utopia?
What are the prospects for constitutionalism and the rule of law under President Donald Trump? In my estimation, quite good. Unlike some of my libertarian (or classical liberal) friends, I didn’t quake at the possibility of Trump’s election (as I explained here). His shortlist of potential Supreme Court candidates was outstanding, and his cabinet picks to date have been first rate. Of course, assessing the success or failure of Trump’s presidency will rest on the actions he takes and the pol
Mother Nature can be tempestuous. Florida faces the risk of hurricanes; Oklahoma bears the brunt of tornadoes; states bordering the Mississippi River endure flooding; California is prone to earthquakes. In Texas, the most common peril is hail, sometimes the size of golf balls (or even larger). Hail storms are rarely deadly, but they can inflict substantial property damage, especially to roofs and other exposed surfaces. Increasingly, hail storms in Texas are accompanied by another form of disast
In prior posts, I looked at the pro-union agenda of the Obama administration’s National Labor Relations Board, and the anti-employer policies undertaken by the Equal Employment Opportunity Commission, Occupational Safety and Health Administration, and Department of Labor. The leadership of the Department by Thomas Perez deserves a closer look, for Secretary Perez has brazenly promoted the objectives of organized labor at the expense of the rule of law.
In a prior post, I summarized the one-sided rulings of the National Labor Relations Board under President Obama, which are seemingly designed to bolster the declining ranks of organized labor in the private sector. Obama’s aggressive anti-employer agenda extends to other agencies having jurisdiction over the employment relationship: the Department of Labor, the Equal Employment Opportunity Commission, and the Occupational Safety and Health Administration. Unlike the NLRB’s pro-union orientation,
When thinking about the National Labor Relations Board under President Obama, most observers recall the 2014 decision in NLRB v. Noel Canning, in which the U.S. Supreme Court unanimously ruled that Obama’s kangaroo-court “recess appointments”—made when the Senate was not actually in recess—were invalid.
The Texas Supreme Court’s 2015 decision in Patel v. Texas Department of Licensing and Regulation, striking down a state law requiring at least 750 hours of training in order to perform commercial “eyebrow threading”—a form of hair removal mainly performed in South Asian and Middle Eastern communities—has generated substantial notoriety for the court and for the Institute for Justice, which brought the lawsuit challenging the law.
We have seen many examples of an “engaged judiciary” at the state court level, and it isn’t always pretty. Advocates of resuscitated constitutional protection for economic liberties—which were demoted to second-class status during the New Deal with the abandonment of the “substantive due process” doctrine in West Coast Hotel Co. v. Parrish (1937)—often argue in favor of a more rigorous standard of judicial review, across the board, when laws are challenged. This heightened judicial role is some
It is not surprising that those at opposite poles of the ideological spectrum generally view public policy issues—and proposed solutions—differently. What is surprising is when conservatives adopt the rhetoric of the Left (along with the accompanying narratives, memes, and canards) regarding a subject as important as criminal justice.
Like unruly schoolchildren using the presence of a substitute teacher as an opportunity to misbehave, in Veasey v. Abbott, the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, has sent the jurisprudential equivalent of a spitball at the U.S. Supreme Court knowing that the deadlocked Court would probably take no corrective action.