U.S. Supreme Court

Biden vs. Bork, 1988: Democrats Smear a SCOTUS Nominee

Editor’s note: this article originally appeared in the May 1988 print edition of Crisis. It has been edited for brevity. Many people have asked me what it was like to live through the nomination and hearings of my husband, Robert Bork. I usually answer that it was like being besieged in a battle where the reinforcements [...]

A Judicial Victory Over Radical Secularism

In early August, the Freedom from Religion Foundation—secularist bullies who go around the country seeking especially to pressure local governments to eliminate anything that even remotely suggests a favorable official view of religion—suffered an unaccustomed defeat in the courts. They usually get cash-strapped local governments to do what they want by threatening legal action, whose [...]

One Word Could Destroy Catholic Education

In three amicus briefs to the U.S. Supreme Court filed last month, the bishops and Catholic educators—together with other major religious groups—urged the Court to uphold the meaning of “sex.” It’s one little word. But if the Court gets it wrong, our religious freedom could be quickly eroded. And while all Catholics and Catholic institutions [...]

Challenging the Courts: It’s Long Overdue

Governor Mike Dunleavy of Alaska made national headlines with his novel challenge to a decision by state’s supreme court, which requires the Alaskan state government to fund abortions. Dunleavy vetoed a portion of the state’s appropriation for its judicial branch: a portion equal to the amount the court requires the government to provide for abortions [...]

Why Pro-life Incrementalism Is Dead

One of the heated intra-conservative debates of late is over the benefits of different pro-life political strategies. Should the pro-life movement push for more moderate bills such as 14-week bans, or should it adopt Alabama’s approach and ban nearly everything? Should it adopt an incrementalist approach or an absolutist approach? There is a large consensus [...]

One Way to Fix the Nominating Process

Watching the Kavanaugh Judicial Committee hearing has been an unpleasant task. I have not been able to watch it all, nor have I been able to read all the details from each day. However, I think we have all learned a lot about the current condition of the United States through this process, and it [...]

Effective Pro-Life Strategies for a Post-Roe World

With the retirement of Justice Anthony Kennedy, and the nomination and all-but-certain appointment of Judge Brett Kavanaugh in his place, pro-lifers feel much more hope in realizing their dream: the reversal of Roe v. Wade and the deconstruction of one of the world’s most permissive and destructive abortion regimes. Yet some legal scholars argue that, [...]

Would a Justice Kavanaugh Defend Religious Liberty?

If one overarching theme emerged from the decisions handed down in June in the most important cases of the 2017-18 Supreme Court term, it was that the First Amendment matters. Or rather, that one particular clause of the First Amendment—the guarantee of the right of freedom of speech—matters. Whether other clauses, in particular the right [...]

The Accidental Justice

Justice Anthony Kennedy’s tenure on the Supreme Court was filled with irony. Had it not been for the smear campaign that defeated Judge Robert Bork’s nomination and the withdrawal of Judge Douglas Ginsburg’s nomination because of past drug use, Kennedy never would have risen to the judicial power he used with such gusto. Sadly less [...]

Three Things America Needs from the New Supreme Court Justice

Justice Anthony Kennedy has just announced his retirement from the Supreme Court. Everyone is talking about who will be his replacement. Much is at stake. For the liberals, it could spell the end to the precarious situation in which Kennedy’s swing vote has brought them many major victories and some small defeats. For the conservatives, [...]

The Supreme Court Deals a Blow to the Abortion Industry

The U.S. Supreme Court this week, in yet another narrow decision, this one titled, National Institute of Family and Life Advocates v. Becerra, has struck down a 2015 California law that would have forced pro-life crisis pregnancy centers to advertise abortions, that is, centers established for the very purpose of not doing abortions and providing [...]

Is There a Right to be Left Alone?

With respect to social/moral issues, contemporary liberalism or progressivism is flourishing in certain states, among which are California and Colorado. And under this “new federalism,” the direct governmental attempt to coerce individuals is prominent. But the Supreme Court, as set out below, has largely resisted attempts to curtail individual religious and moral liberty. And two [...]

Will the Court Overturn Bad Precedents?

In his recent book, Nixon’s White House Wars, Patrick J. Buchanan writes about how most of Richard Nixon’s Supreme Court nominees—Buchanan was an aide to Nixon—did not turn out to be the “judicial restraintists” that the thirty-seventh president had hoped for. Buchanan says that has been a problem for Republican presidents generally. From Nixon up [...]

Can Religious Symbols Be Tolerated on Public Lands?

Is a long-standing commemorative cross on public land socially divisive and a governmental endorsement of religion? Or, to the contrary, is a constitutional challenge to that cross an act of gratuitous social divisiveness? Last week, in American Humanist Association v. Maryland, the federal Fourth Circuit Court of Appeals reversed a ruling of the federal district court of [...]

Religious Liberty Wins Again in the Supreme Court

In its decision in Trinity Lutheran v. Comer this week, the Supreme Court took another significant step in furthering its contemporary jurisprudence emphasizing the free exercise of religion. Trinity Lutheran Church operates a daycare and early-learning center on its church property in Boone County, Missouri. The church explicitly states that its early learning program is one of [...]

Obergefell and the Apotheosis of Judicial Will

With the confirmation of Neil Gorsuch to the U.S. Supreme Court, many social conservatives breathed a sigh of relief. From what we know of his record, Justice Gorsuch does seem to be a worthy successor to Justice Antonin Scalia. Even if Gorsuch is somewhat less distinguished as a legal mind than Scalia, he is clearly [...]

How to Avoid Judicial Tyranny

The Founding Fathers envisioned the Supreme Court of the United States as an apolitical branch of government, co-equal to the others but devoid of any partisanship or politicking. Alexander Hamilton wrote that judges in the new American system would have “neither force nor will, but merely judgment.” The question of confirming a justice to the [...]

When Policy Preferences Masquerade as Rights

Recently, I took my son swimming at a local rec center. Entering the men’s locker room, we encountered a sign: “Children over 6 must use the appropriate locker room.” For a moment, I was tempted to speed dial the ACLU and Human Rights Watch to roust some federal judge that Sunday morning who could save [...]

How to Curtail Judicial Activism

I hear frequently in this year’s election campaign that Supreme Court appointments should be the key consideration in the choice between the presidential candidates. That’s certainly understandable, and perhaps true. It reflects, however, an unfortunate attitude—widespread and deeply ingrained in the American psyche—that the Court is somehow the ultimate, sovereign institution in the United States. [...]

The Court Has Completely Destroyed Its Own Legitimacy

It is a week for mourning certainly. We mourn the loss of an important Supreme Court case that would have protected women in abortion clinics. We mourn the inevitable loss of life that will be the direct result of this decision, the lives of unborn children but also women who would have otherwise had at [...]

The Left Replaces Rule of Law with Rule of Politics

A review in Washington Lawyer magazine of U.S. Supreme Court justice Stephen Breyer’s recent book, The Court and the World: American Law and the New Global Realities declared that he “makes a ringing defense of the rule of law.” That was a curious conclusion, in light of how Breyer—one of the most preeminent leftists in [...]

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