James Buckley at 90: Still a Hero of the Republic

I had the good fortune to be asked to review Saving Congress from Itself by James L. Buckley, a statesman I have long admired.  As I say in the opening of the review that appears in this week’s print edition of National Review: My first vote remains my best. It was for James L. Buckley’s reelection as a United States senator from New York. In six years in office, he had shown himself fearlessly principled, whether in calling for Nixon’s resignation in the Watergate scandal before any other conservative in Congress or in opposing a taxpayer bailout for New York City,…

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Same-Sex Marriage, the Political Process and Judicial Manipulation

There is a new meme circulating among journalists about the Supreme Court’s decision not to take certiorari in the same sex-marriage cases. According to the left-liberal Jeffrey Toobin, the Court’s decisions allow the “political process to go forward, one state at a time.” Or as David Brooks, a moderate conservative, said at greater length: “Sometimes, you just let the country have its way, and you don’t try to determine the shape of the country. You sort of modestly step back and let the country figure out what it believes. And I think they’re doing absolutely the right thing in just withdrawing and not getting too involved.”

Whatever one thinks of same-sex marriage (and I favor it as a policy matter), these claims completely distort the truth. The Supreme Court is letting go forward a judicial process that permits courts to invalidate traditional marriage laws if they think such a decision would best reflect the signals the Court itself has previously sent on the subject.  In contrast,  a political process would allow states—principally their legislatures and people—to make decisions about same-sex marriage, one state at a time.

The journalists’ claims are even more disingenuous because of the way the Supreme Court has set the stage for the lower courts.

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The Deflation of Rights

Supreme Court Hears Oral Arguments On Arizona Immigration LawPrint up a bunch of money, and the value of money is almost sure to decline. Make up a host of new rights and the value of rights is likely to plummet as well. As our modern experience demonstrates.

Simplifying, we might imagine three stages in the devaluation of rights. In stage one (which, like the “state of nature,” probably never quite existed), a right would be categorical. If you have a right to freedom of speech, say, this would mean that you can say whatever you want (at least within the scope of the right’s coverage) and the government cannot sanction or restrict you. Period. Justice Black sometimes talked as if freedom of speech were or should be an absolute right. The average lay person may sometimes think this is what a right means.

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When the Justices Talk about the Constitution outside the Court

Professor Ross Davies has a cool new article in the Green Bag, titled “Extrajudicial Reticence: Nine Justices Take a Brief Break from Constitutional Commentary.” Davies draws attention to a curious episode in Supreme Court history, where Life Magazine asked each of the Justices to write a commentary on one of the Amendments in the Bill of Rights. Davies notes that for, perhaps the first and only time ever–briefly in 1991–the Justices decided not to weigh in on the Constitution outside the Court.

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Religious Exemptions to Anti-Discrimination Laws under RFRA

Now that the debate over Arizona’s SB 1062 bill is over, it is worthwhile to pause and think about some of the legal implications of carving out religious exemptions for generally applicable anti-discrimination law. Specifically, does the federal Religious Freedom Restoration Act (which was virtually identical to the provision proposed in Arizona) offer a defense for a private claim of discrimination.

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Toobin’s Disgrace

clarence-thomasJeffrey Toobin’s recent article in The New Yorker, “Clarence Thomas’s Disgraceful Silence,” is itself disgraceful. Toobin noted that, as of February 22, eight years have passed since Justice Thomas last asked a question during a Supreme Court oral argument. Toobin finds Thomas’s silence “bizarre” and “downright embarrassing, for himself and for the institution he represents.”

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Recess Appointments: A Final Quick Pre-Argument Note

NLRB v. Noel Canning is to be argued tomorrow (or today, depending on when you read this). The Court has ordered extended argument (90 minutes), and there’s an interesting twist: fifteen minutes on the respondents’ side have been given to Senator Mitch McConnell and 44 other Senators. Appearing as amici, the Senators insist that the Senate was in fact in session when the disputed recess appointments were made. If that’s right, the two questions that have engendered so much heated dispute—the question of intra- versus inter-session “recess(es),” and the question of whether the executive power to make such appointments covers…

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The Government is Us. Let’s Unionize!

Happy New Year, and all cheer the arrival of the one and only John McGinnis on this excellent site! His contributions will make it excellenter still. Rummaging around on the Supremes’ docket and among briefs and petitions, I’ve come across Harris v. Quinn. The question is whether it’s okay for a state (Illinois) to authorize unionization, complete with mandatory union fees, for home health care workers who provide in-home care to individual patients under Medicaid-financed programs. Abood v. Detroit Board of Ed. (1977) held that public employers have a “compelling interest” in labor peace and in preventing free-riding by employees. (However,…

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Climate Change, the Sequel: How the Supreme Court Created Free-Form Government

Having been a tad remiss in my blogging obligations, I’ll try to compensate by letting patient readers in on an elaborate political joke, involving the planet and the U.S. economy. Getting the joke demands familiarity with messy statutes and a keen appreciation of institutional incentives. That’s why we Washingtonians are rich and you people are a laugh a minute.

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Bond v. U.S.: Government Tells Court to Bug Out

Yesterday, the Supreme Court heard oral argument in Bond v. United States. Mrs. Bond had smeared a toxic chemical on a romantic rival’s doorknob and mailbox, resulting in a thumb burn. She was federally prosecuted for violating a federal statute that implements the international Chemical Weapons Convention. The statute is broad indeed; as Justice Alito noted in an earlier round of litigation, it makes poisoning a goldfish with vinegar a federal crime. Earlier coverage is here.

After the argument, it’s possible that the case may decide some very large constitutional questions, thanks in no small part to the government’s breathtakingly aggressive stance. The key question is whether the feds can mow constitutional federalism barriers by treaty and implementing legislation. Solicitor General Verrilli’s answer was an emphatic “yes.” Not a good idea: excerpts from the transcript (which is here) convey the justices’ incredulity.

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