In the Washington Post, it was Harvard prawfs Larry Tribe and former federal judge Nancy Gertner. In Time, it was Penn prawf Kermit Roosevelt. Will Baude did it at Volokh Conspiracy, and Keith Whittington did it in the Wall Street Journal. No doubt more members of President Biden’s Supreme Court commission will have something to say.

The Final Report was unanimously approved, largely because it fairly reflected the arguments proffered for and against various reform proposals and avoided issuing any recommendations, whether to do something or do nothing.

The Commission was not asked to make recommendations, and it did not. I hope it offers some helpful analysis of reform proposals surrounding the Court. Continue reading →

With music provided by Tom Lehrer

Christmas time is here by golly, disapproval would be folly
Deck the halls with hunks of holly, fill the cup and don’t say when Continue reading →

It was kind of Jacob Sullum to save his Gertruding to the end of his post, even if he’s about a decade behind reality.

The ACLU continues to do good work in defense of civil liberties. But its embrace of wide-ranging progressive goals is clearly undermining the principles that made it distinctive and worthy of support from people who don’t necessarily agree with that agenda.

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The jury remains out in the trial of Jussie Smollet, which means that he is innocent and will remain innocent until a verdict is returned that removes the presumption of innocence. What that means isn’t that he is a hero or a victim, but innocent. When the allegations were first made that Smollet was the target of a racist attack, everybody jumped on the Smollet train. It was a ride too sweet to miss.

Vice President Kamala Harris, then a U.S. senator, denounced what happened as an “attempted modern-day lynching.” House Speaker Nancy Pelosi (D-Calif.) said it was a “homophobic attack and an affront to our humanity.” In a fawning interview, ABC’s Robin Roberts described Smollett as “bruised but not broken” and breathlessly concluded the segment with “Beautiful, thank you, Jussie.”

Even when evidence mounted that this was a hoax, some media figures lashed out at Smollett’s doubters. ABC’s “The Talk” host Sara Gilbert was irate: “I find so personally offensive that a gay Black man is targeted and then suddenly he becomes the victim of people’s disbelief.”

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That Jameel Jaffer wrote an op-ed against laws in Texas and Florida seeking to limit and control the free speech of social media is hardly surprising. After all, Jameel is the Executive Director of the Knight First Amendment Institute at Columbia University. Of course he would be critical of laws that facially violate the First Amendment. After all, isn’t that the purpose of Knight-Columbia, to defend the…oh, crap.

The companies are right that the laws violate the First Amendment, but some of the arguments they are making are deeply flawed. If these arguments get traction in the courts, it will be difficult for legislatures to pass sensible and free-speech-friendly laws meant to protect democratic values in the digital public sphere.

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It’s unclear who said it, but it’s funny because it’s true.

Academic politics are so vicious precisely because the stakes are so small.

In response to the “sudden” interest in the constitution of the Supreme Court, a plethora of reforms were demanded to “fix” the “imbalance” of three Trump justices, one of whom got the gig because then-Senate Majority Leader Mitch McConnell successfully gamed the confirmation process to disgracefully ghost Merrick Garland’s nomination, and the other two because of otherwise ordinary openings by retirement and death. Continue reading →

When I was a college student, I attended a lecture by political science prof, Ted Lowi, who explained why interest group politics would prevail in the future. While people have diverse views in individual political issues, both across the board and internally, most of us have one issue that dominates our political decision making. Maybe it’s climate change. Maybe it’s gun control. Maybe it’s abortion. Maybe it’s the economy, stupid.

A candidate for office who aligns with our position on our most important issue gets our vote. And if enough people agree with us about our position on our most important issue, it could prove sufficient to get that candidate elected. It may be that we agree with the candidate on other issues or not. Nobody’s perfect. Continue reading →

Gertrude Warning: I’m vaxxed and boosted, and think everyone should be. What follows has nothing to do with whether getting vaccinated is a good thing or not, but whether New York City’s lame duck mayor, Bill de Blasio, can do what he just did.

New York City unveiled plans on Monday to require on-site employees at all private businesses, from bodegas to multinational banks, to get vaccinated — the most sweeping local mandate in the country and one that is intended to limit the spread of the new coronavirus variant this winter.

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The argument is a good one, a real one, about the Catch-22 of getting parole. If there’s one thing every prisoner doing a long sentence in a New York State prison knows, he will not get parole if he does not admit guilt. David Leonhardt uses the story of 78-year-old Joseph Gordon, who was sentenced to 25 to life for murder.

Joseph Gordon, a 78-year-old man in New York State, falls into the second category. He has already served more than his minimum sentence of 25 years for a 1991 murder, and multiple prison officials and guards have supported his parole application. Gordon has “the character and moral compass to return to society as a productive member of his community,” wrote a former superintendent at Fishkill Correctional Facility, where Gordon is incarcerated. Continue reading →

On rare occasion, outsiders get a glimpse into the inner turmoil of a cult. Mark Bennett, the Texas Tornado, provides such a rare occasion as his pal, Daphne Silverman, took on the undoing of the representation of Ruby Montoya by National Lawyers Guild member and Civil Liberties Defense Center Executive Director Lauren Regan, who, it’s argued, was a movement lawyer who coerced Montoya to plead guilty to “a string of arson and sabotage attacks against the Dakota Access Pipeline (DAPL) in 2017.”

Bennett provides a deep dive into the background of the representation, the inherent conflicts raised and now the attempt to oust Silverman, also a National Lawyers Guild member, for putting her client before the movement. As Bennett spells it out as the Criminal-Defense Principle. Continue reading →