Constitutional Law
The Supreme Court, the Second Amendment and Consumer Protection

It turns out that New York State Rifle & Pistol Association v. City of New York was not a watershed Second Amendment decision. That much-discussed case concerned a New York City prohibition on the transportation of firearms outside the city. After the Supreme Court agreed to hear the case and before oral argument, state and city laws were changed to permit individuals to transport firearms. These changes in the law rendered moot a case that many observers believed could provide the court an opportunity to expand upon its Second Amendment doctrine in favor of gun rights advocates.

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Even Under McConnell’s Rules, the House Can Make Its Case Against Trump

Not surprisingly, Senator Mitch McConnell has announced that President Donald Trump’s impeachment trial will, at least initially, be bare-bones. McConnell has proposed opening statements from the House impeachment managers and lawyers representing the president, with questions from senators through the Chief Justice. At least at the start, there will be no witness testimony—though a majority of the Senate could later vote to allow both testimony and new evidence. Though this format may not be the kind of proceeding the framers of the Constitution contemplated when they assigned to the Senate the responsibility to try impeachments, it still presents the opportunity for the House to make the case against Trump—to the Senate and, more importantly, to the American people.

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A Trial Date Set for September 11 Planners But No Justice in Sight

As reported in the New York Times, the judge overseeing the military tribunal of Khalid Shaikh Mohammed and the four other suspects believed to have designed and organized the September 11 attacks has set a trial date of January 2021. Although there have been numerous court hearings for these five suspects since they arrived at Guantanamo, there have also been numerous delays, and this ruling marks the first time that an actual date has been set for the trial to begin.

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Criminal Justice
Becoming a “Career Criminal” in One Night: The Supreme Court is Poised for an Important Criminal Sentencing Decision in Wooden v. United States

Enacted in 1984, the ACCA was designed to deter dangerous, repeat criminals from possessing firearms, and to separate them from society for a significant period of time.

The Supreme Court, the Second Amendment and Consumer Protection

It turns out that New York State Rifle & Pistol Association v. City of New York was not a watershed Second Amendment decision. That much-discussed case concerned a New York City prohibition on the transportation of firearms outside the city. After the Supreme Court agreed to hear the case and before oral argument, state and city laws were changed to permit individuals to transport firearms. These changes in the law rendered moot a case that many observers believed could provide the court an opportunity to expand upon its Second Amendment doctrine in favor of gun rights advocates.

Chevron Doctrine
WILL CHEVRON FALL THIS TERM?

The Supreme Court’s 1984 Chevron decision generally allows administrative agencies leeway when interpreting ambiguous statutes. It has had its critics over the years, including some of the current members of the Supreme Court. The Court typically hears a number of cases each term that implicate Chevron, and this term is no exception. One has drawn attention as a case the Court might use to overrule Chevron.

The Latest Decision in the Keystone XL Saga: The State Department Fails to Explain an Environmental Reversal

This is a story that begins and ends with global warming. That global warming is happening and that human activities contribute to it is the overwhelming consensus of the science community, decades-deep in studies and expertise. That is a fact. I’ve heard and considered the proposition that all the scientists could be wrong — doggedly fixed on conclusions preordained by their funding sources, or maybe seduced by the drama of an end-of-days scenario. I’ve also heard the argument that the best minds of the sixteenth century insisted that the earth sits at the center of the solar system — this after getting past the flat-horizon-ergo-flat-earth thing — and then there’s the one about Aristotle asserting that men have more teeth than women.  All this I translate as warnings to receive all “scientific truths” with skepticism. Fair enough.

Supreme Court, Oral Arguments, Judicial Branch, Judicial Legitimacy, Transparency Jordan Singer Supreme Court, Oral Arguments, Judicial Branch, Judicial Legitimacy, Transparency Jordan Singer

Decoding Judge Kavanaugh’s “Open Mind” on Supreme Court Cameras

In one of the more substantive moments of this month’s Supreme Court Confirmation Theater, Judge Brett Kavanaugh was asked whether he would support broadcasting video of the Supreme Court’s oral arguments. Kavanaugh demurred, saying only that he would keep “an open mind” on the issue. Given that most members of the Supreme Court have come out against cameras in recent years, it is tempting to read Kavanaugh’s response as a polite but similarly firm vote against the use of video. But I suspect there is something more at work here, and that we should take his “open mind” characterization at face value.

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Judicial Disqualification, Judicial Review, Judicial Legitimacy, Judicial Branch, Supreme Court Tigran W. Eldred Judicial Disqualification, Judicial Review, Judicial Legitimacy, Judicial Branch, Supreme Court Tigran W. Eldred

The Psychology of Conflicts of Interest in Williams v. Pennsylvania

The U.S. Supreme Court’s recent decision in Williams v. Pennsylvania, handed down during the turmoil in the presidential campaign over the heated rhetoric on judicial impartiality, adds to the Supreme Court’s growing jurisprudence on the due process requirements for judicial disqualification. The issue in the case—whether a justice on the Pennsylvania Supreme Court could properly adjudicate a death penalty case when he had previously been the prosecutor who authorized capital charges against the defendant—set the stage for a ruling that could have provided broad guidance on the due process parameters for judicial disqualification, especially in criminal cases. Yet the Court’s holding may end up having only limited impact. 

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Supreme Court, Constitutional Issues, Judicial Legitimacy, Judicial Branch Lawrence Friedman Supreme Court, Constitutional Issues, Judicial Legitimacy, Judicial Branch Lawrence Friedman

The Ninth Justice

At this writing, Senate Republicans continue to refuse even to hold a hearing on President Obama’s nominee to succeed the late Associate Justice, Antonin Scalia, on the U.S. Supreme Court. The fullest explanation of their collective decision to ignore the Senate’s constitutional role in the judicial appointment process has come from Utah Senator Orrin Hatch who, in a recent New York Times op-ed, spelled out their arguments.

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