Colorado lost as a unanimous Supreme Court held that a state cannot disqualify a candidate for president on its own. How did a unanimous, per curiam, opinion, as concurrer Justice Amy Coney Barrett, turn up the heat? The majority didn’t stop at deciding what Colorado could not do, but went a few steps beyond by deciding that pursuant to Section 5 of the Fourteenth Amendment, it was left to Congress to enact enabling legislation to effectuate Section 3, the  disqualification clause that applies to oath breaking insurrectionists, of which no one on the Court questioned. Continue reading →

The heady days of George Floyd protests and progressive prosecutors brought a number of “reforms,” most of which have proven, as expected, to be simplistic, misguided and unsustainable. It wasn’t enough to be filled with passion, but to also think long and hard about what would work and what was based on shallow fantasies. Granted, some changes have been important, like holding cops criminally culpable for the commission of crimes, something that almost never happened before. Others have wrought more crime and suffering, despite the good intentions. Continue reading →

To be fair, few motions are won at oral argument, though more are lost by a poor argument or an inadvertent admission. The serious argument is set forth in the motions themselves, the accompanying memorandum and affirmations. Face time before the court is fun, and may well turn out to be significant if the judge has a question in need of an answer, but it’s more show than substance.

So why, then, turn it into a battleground?

According to the complaint, the judges all entered orders in 2020, which give greater opportunities for career-advancing oral arguments in court to attorneys who are “newer, female and minority.” Continue reading →

In a series of posts, Radley Balko sought to debunk what he calls the “retconning” of George Floyd stemming from a documentary that questioned whether he was murdered by Derek Chauvin with the support or involvement of people like  John McWhorter, Glenn Loury, Bari Weiss and Coleman Hughes, among others. By “retconning,” Radley refers to the introduction of new information in order to change the narrative. He argues that after the initial consensus comes the “flattening.”

There’s a flattening that takes place after a high-profile incident of police abuse sparks civil unrest.

There’s the initial media coverage and viral spread on social media. This is followed by outrage, then protests. In some cases, the protests may be accompanied by rioting or looting. Much of that violence is often — but not always — in response to an overly aggressive police response. Continue reading →

When it comes to Biglaw firms, Skadden Arps is one of the biggest. It hires the best because it pays ridiculous amounts of money to baby lawyers who couldn’t find the courthouse without Google Maps, and their clients are willing to foot the bill for reasons that elude me. Where does a firm like Skadden seek out its new class of lawyers? Elite law schools, like Harvard. And so they held a career day, caught on video.

Skadden Arps does career event at Harvard Law School … students ask questions about how Skadden furthers Palestinian genocide on behalf of an apartheid state. pic.twitter.com/m8WQ3KY4Um

— Andy Grewal (@ProfGrewal) March 1, 2024

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The issue is significant, though it is neither more nor less significant than when Special Prosecutor Jack Smith brought it to the Supreme Court for decision before the District of Columbia Circuit Court of Appeals. The pendency of an election is not, as a matter of legal doctrine, a cognizable reason to expedite hearing and decision by the Court. Nor does Merrick Garland’s neglect of the matter for two years before appointing a special prosecutor turn this into the Court’s emergency.

And that’s pretty much the most generous reading I can muster about the Supreme Court’s decision to hear Trump’s appeal on a time frame that almost certainly precludes a trial on the January 6th indictment before D.C. judge Tanya Chutkan. The timeline is fairly clear at this point, with oral argument scheduled for April 22d, a balance of 88 days remaining for defendant to prepare for trial and an estimated three month trial. Continue reading →

As a general rule, it seems wise for courts to keep their noses out of the fraught issue of whether a school assignment has pedagogical value. After all, judges aren’t teachers, so why would it be left to courts? And yet, as schools, and teachers, become more aggressive in the nature of what they’re requiring students to do, the potential for crossing the line leaves parents of public school students with few options other than the law when the assignment goes too far.

In Evans v. Hawes, District of Nevada Judge Jennifer Dorsey denied a motion to dismiss when the high school daughter of Terrance and Candra Evans’ assignment in an acting class was to read a monologue written by another student. Continue reading →

What is it about a grifter from Queens who neither knows nor cares about you, who has neither principles nor plans, that makes people love him. Not merely support him or want to vote for him, but adore him. Putting a flag with his name on a truck, comparing him with a deity, being willing to fight a cop and storm a building for him? Krugman thinks he knows.

Technology, then, has made America as a whole richer, but it has reduced economic opportunities in rural areas. So why don’t rural workers go where the jobs are? Some have. But some cities have become unaffordable, in part because of restrictive zoning — one thing blue states get wrong — while many workers are also reluctant to leave their families and communities. Continue reading →

There is a crisis of faith in Constitutional Law, and as Jesse Wegman notes, it’s changed the way law professors look at it and teach it.

“Teaching constitutional law today is an enterprise in teaching students what law isn’t,” Leah Litman, a professor at the University of Michigan law school, told me.

Litman is about as die-hard a progressive prawf as they come, and her quote, the first proffered by Jesse in support of his contention, speaks volumes. As a trench lawyer, I’ve taken issue with many Supreme Court decisions over the years, from the dreaded Whren to Heien, and every decision that loves drug-sniffing puppies more than facts. And don’t get me started on the Reasonably Scared Cop Rule of Graham v. Connor. Continue reading →

Ross Douthat frames it as a 1950s dystopian sci fi scenario.

Imagine a short story from the golden age of science fiction, something that would appear in a pulp magazine in 1956. Our title is “The Truth Engine,” and the story envisions a future where computers, those hulking, floor-to-ceiling things, become potent enough to guide human beings to answers to any question they might ask, from the capital of Bolivia to the best way to marinade a steak.

How would such a story end? With some kind of reveal, no doubt, of a secret agenda lurking behind the promise of all-encompassing knowledge. For instance, maybe there’s a Truth Engine 2.0, smarter and more creative, that everyone can’t wait to get their hands on. And then a band of dissidents discover that version 2.0 is fanatical and mad, that the Engine has just been preparing humans for totalitarian brainwashing or involuntary extinction.

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