On July 5th I wrote that conservatives remembered what the left had done to Judge Robert Bork and believed Judge Brett Kavanaugh would be a just appointment to the seat Bork was denied. The extreme efforts to stop his nomination confirm that the left was determined to prevent that from happening. Of course, at the end of the day the ferocity of the opposition to this appointment illustrates the outsized power the court has assumed in our country. The fear of losing the power of the court as their vanguard, of the gavel being in the hand of others, explains the lefts willingness to “do anything” to defeat the nomination. Indeed, some even suggested Senate Judiciary Chairman Chuck Grassley was not qualified to lead the committee because he is not a lawyer. The fact is Senator Grassley has as many hours in law school as Senator Feinstein, the ranking minority member.
U.S. Supreme Court News
As the President considers a new judge to replace Justice Anthony Kennedy he would do well to remember that the Kennedy seat was supposed to go to Judge Robert Bork, a good man who was unjustly attacked and precluded from sitting on the Supreme Court. Conservatives have long recognized Bork should have had that spot.
WASHINGTON – The U.S. Supreme Court recently released a court opinion to uphold the majority of Texas’ House and Congressional district maps, ending the years-long debate over whether Texas’ legislatures intentionally drew districts to discriminate against minorities.
WASHINGTON – The U.S. Supreme Court confirmed federal jurisdiction in Texas’ lawsuit against New Mexico on March 5, ordering the case involving water rights to the Rio Grande River to be remanded back to the Special Master.
AUSTIN – Texas Attorney General Ken Paxton is challenging a U.S. District Court for the Western District of Texas ruling that declared Texas district maps were drawn with the intent to discriminate against minorities.
February 13th was the 2nd anniversary of Justice Antonin Scalia’s death. Few can doubt the lasting impact the judge had on the judiciary and the country. His death left a choice for the American electorate they seldom have—the choice of a justice nominated by the departing President Barack Obama with the promise of candidate Donald Trump to nominate justices like Scalia. In perhaps their greatest tribute to the judge, the country chose as President the man who promised judges like Scalia who recognize “…the need for a democratic society not to expect the Constitution to make all its important decisions.”
The Supreme Court will hear oral argument today [February 26] in one of the term’s most important—and highly publicized—cases, Janus v. American Federation of State, County, and Municipal Employees, Council 31. As many readers are aware, the case involves the constitutionality of “agency shop” arrangements in public sector collective bargaining agreements, which compel non-member employees to make payments in lieu of union dues as a condition of their employment. Agency shop clauses are commonly used in public-sector labor contracts, enabling powerful unions representing teachers and other government employees to collect large sums of money from workers who never consented to such exactions (and who, for that matter, never voted in favor of union representation).
AUSTIN – Texas Attorney General Ken Paxton and officials from 19 other states filed a brief with the Supreme Court of the United States supporting a bakery owner who refused to make a wedding cake for a same-sex couple, according to a friend-of-the-court brief filed in September.
I have been silent about Masterpiece Cakeshop v. Colorado Civil Rights Commission, not because I lack interest in the case, but because it has already generated extensive commentary here and throughout the commentariat. Court watchers, like fortune tellers reading tea leaves, speculate how the justices will line up, with Justice Anthony Kennedy likely casting the swing vote in favor or against the Colorado baker, Jack Phillips, who declined for religious reasons to create a gay wedding cake.
CHARLESTON — West Virginia Attorney General Patrick Morrisey's office is seeking to protect Mountain State farmers and consumers by challenging a Massachusetts law that attempts to impose unlawful agricultural regulations on other states.
For years, patent assertion entities have filed patent lawsuits against retailers in federal court in Texas. The Supreme Court’s recent decision in TC Heartland LLC v. Kraft Foods Group Brands LLC may give retailers the ability to insist they defend such lawsuits on their home turf.
I have been thinking about Robert Bork recently, prompted in part by the 30th anniversary of his rejection by the Senate on November 23, 1987. Next month will mark the fifth anniversary of his passing on December 19, 2012. Bork was profoundly influential in conservative legal circles when I graduated from law school in 1980 and started paying closer attention to constitutional theory. I was impressed with both Bork’s scholarly writings and his more polemical articles in publications such as National Review. A 1982 essay he wrote in NR, entitled “The Struggle Over the Role of the Court,” reprinted in his 2008 anthology A Time to Speak, remains timely—even prescient. Ramesh Ponnuru has called Bork’s 1990 book, The Tempting of America, written in the wake of his confirmation defeat, “the most important popular statement of judicial conservatism yet produced.”
Readers of Law and Liberty may have noticed that I am a fan of Justice Antonin Scalia (for example, here and here). I am also an admirer of Robert H. Bork, whom my colleague John McGinnis has described as “the most important legal scholar on the right in the last 50 years.” Bork was a pioneer in both the field of antitrust law (with his influential 1978 book The Antitrust Paradox) and constitutional law, as the father of what we now call “originalism.” In his seminal 1971 article in the Indiana Law Journal, entitled “Neutral Principles and Some First Amendment Problems,” and in his later best-selling books, The Tempting of America (1990) and Slouching Towards Gomorrah (1996), Bork eviscerated the “noninterpretive” theories of constitutional law that dominated the legal academy in the 1960s and 1970s.
Justice Antonin Scalia definitely had a way with words. Law students pore over his opinions not just for Scalia’s keen analysis but to delight in the verve of his prose—pungent, clear, combative, and always colorful. Scalia aficionados also savor his books and essays, which showcase his forceful rhetoric and deft pen. Alas, the body of Scalia’s judicial decisions and scholarship, although considerable, is finite. Fortunately, Scalia fans now have a treasure trove of new material to savor, in the form of a recently-released compilation of the late Justice’s speeches, entitled Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.
WASHINGTON – A 2014 U.S. Supreme Court ruling on "abstract" patents has hit patent litigation hard and reduced the burden on software developers in the three years since its ruling, according to two experts in the intellectual property law.
Originalism is a two-way street. Judges wishing to interpret the Constitution in accordance with its original public meaning must not import into their decisions policy proscriptions not actually derived from the text and structure of that document. Just as important is that textualism and originalism require judges to give force to all provisions of the Constitution, and not pick and choose which clauses to enforce.
AUSTIN – A 14-state coalition has filed an amicus brief with the U.S. Supreme Court to defend the First Amendment right of Barronelle Stutzman, a Washington-based floral shop owner who was sued over allegations of sexual orientation discrimination, the Texas Attorney General's office reported.
AUSTIN – The Supreme Court and the Ten Commandments meet again.
NEW ORLEANS – Earlier this month, the U.S. Court of Appeals for the Fifth Circuit sided against the National Labor Relations Board, finding that Convergys Corp. has the right to require employees to arbitrate disputes against the company, keeping them from initiating class action lawsuits.
TYLER – The U.S. District Court for Eastern Texas, a favorite venue for patent litigation, will hold on to at least one more patent lawsuit for the time being, as a federal judge recently found a defendant’s TC Heartland argument “unpersuasive.”