The Not-So-Independent Judiciary

Lady Justice with Scale and Sword

The Constitution permits Congress to do amazing stuff to the independent judiciary. It can withhold jurisdiction, or yank jurisdiction that’s been given. It can change the law for pending cases. It can legislate for a “legitimate class of one.” But suppose Smith sues Jones in federal court and Congress enacts a law saying, “In Smith v. Jones [docket number], Smith wins.” Constitutional? An ancient, messy case, U.S. v. Klein (1872), seems to say “no.” After Wednesday’s decision in Bank Markazi v. Peterson,  the answer may be “yes.” I’ve written about the case before: The outcome is more depressing than I had apprehended.

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Heather MacDonald on Proactive Policing

Heather MacDonald argues in the City Journal that a significant increase in violent crime has been the result of a decline in proactive and broken windows policing. Proactive policing involves “pedestrian stops—otherwise known as stop, question, and frisk. Broken windows policing “responds to low-level offenses such as graffiti, disorderly conduct, and turnstile jumping.” Let’s assume, as seems plausible, that MacDonald is correct that such policing is effective and violence crime has resulted from its decline. MacDonald lays the blame for this situation at the feet of a variety of groups, but mainly activist groups such as Black Lives Matter, but also…

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Some Dissents Are More Equal Than Others

U.S. Supreme Court

Anyone who has clerked for an appellate judge knows that assisting in writing a dissent is one of the better parts of the job. While a majority opinion, however important it is, almost always involves compromise, a dissenting opinion allows a judge the full range of rhetorical devices, unhindered by the need to cobble together a majority or to convince colleagues to vote the same way.

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Strategy and Originalism

Over at the Liberty Law  Forum, Stephen Smith has an essay entitled Saving Originalism from Originalists.  Smith’s article raises an extremely important issue: How do originalists cause the Supreme Court Justices to follow the original meaning of the Constitution?  This is a difficult question.  Smith powerfully argues that a strategic perspective is a useful way of thinking about the problem.  Relying on this perspective, Smith argues for what he calls a strategic originalism.  I respond to Smith’s argument here. I have also thought about strategic considerations.  I discuss one strategy for promoting originalism in my response to Smith: Perhaps the biggest obstacle…

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What Is a “Substantial Burden” on Religious Exercise—or Is It Best Not to Ask?

Business man looking at wall with a bright question mark

We are in something of a lull in the Zubik v. Burwell litigation, the complex of cases brought by several nonprofit organizations, including the Little Sisters of the Poor, challenging the government’s contraception mandate and the particular “accommodation” it has offered these groups. At the end of March, the Supreme Court issued a rather peculiar order asking the parties to submit additional briefing on this question: whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance…

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Regulation Recessions

In his column "Robber Baron Recessions" Paul Krugman argued this Monday that American companies have been investing less because of greater market concentration in their industries. Exhibit A for Krugman is Verizon: he contends that it has not sufficiently invested in Fios, a fiber optic system that would accelerate internet speeds.  He thus wants more government intervention to police monopoly power and decrease economic concentration. Both Krugman’s claim and his remedy are dubious.  Let’s begin with alternate explanations for low corporate investment. The most obvious is government regulation.  The Obama administration has been one of the most aggressive regulators in history.…

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Congress as the Guardian of Individual Rights: A Conversation with Louis Fisher

congress-rightsThis episode of Liberty Law Talk is a conversation with congressional scholar Louis Fisher on his recent book, Congress: Protecting Individual Rights. Fisher argues that contrary to popular belief, Congress, not the Court, has been the foremost champion in protecting the rights of racial minorities, children, Native Americans, and religious liberties.

Immigration Law, Metaphysics, and the APA

Wooden Gavel with book over white

Yesterday, the Supreme Court heard extended oral argument in the litigation over the administration’s Deferred Action for Parental Accountability “DAPA”  program, which would grant “deferred action” and along, with it, work authorization and other government benefits to over four million unauthorized aliens (chiefly, parents of U.S. citizens). Most of the argument—frustrating, over long stretches—focused on two issues: the plaintiff-states’ “standing” (constitutional and statutory) to litigate the case; and DAPA’s grant of “lawful presence” to millions of immigrants.

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Endgame of American Culture

United States of America concept with statue of liberty in front of the New York cityscape at night

When America’s most sophisticated social scientist warns that America is on its last legs, it is time to start paying attention. Charles Murray has come to the conclusion that Donald Trump is “an expression of the legitimate anger that many Americans feel” about the state of the country.

The Trump phenomenon was to be predicted, writes Murray in a recent essay. “It is the endgame of a process that has been going on for a half-century: America’s divestment of its historic national identity.”

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Scientifically Undermining the Rule of Law

brain network

Before he turned murderously religious, one of the Belgian bombers had been a bank robber. He fired a Kalashnikov at the police when they interrupted him in an attempted robbery, for which crime, or combination of crimes, he received a sentence of nine years’ imprisonment. Of those nine years he served only four, being conditionally discharged. The principal condition was that he had to attend a probation office once a month: about as much use, one might have supposed, as an igloo in the tropics.

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