U.S. Supreme Court

EWTN Prevails Against the HHS Contraception Mandate

On October 5, 2018, the government admitted they were wrong to persecute the Eternal Word Television Network (EWTN). The admission came in a settlement in EWTN’s long-drawn-out lawsuit regarding the Contraception Mandate attached to Barack Obama’s Affordable Care Act (ACA). As a result of the settlement, the 11th Circuit Court of Appeals vacated (i.e., withdrew) [...]

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 [...]

The Little Sister’s Last Stand for Religious Liberty

The Supreme Court recently heard oral arguments in the case of Little Sisters of the Poor v. Burwell. This is a case in which a small order of nuns is seeking exemption from an Obama Administration requirement that they help distribute free contraceptives and abortifacients (drugs that cause abortions) through their government-mandated healthcare plan. Why does [...]

What to Look for in a Supreme Court Justice

As we brace ourselves for the political firestorm that is already beginning around filling the vacancy on our highest court, it would be useful to engage in a little “cultural catechesis” on the nature and purpose of the office in question. Though some will decry the “politicization” of the selection process, an honest review of [...]

The Flowering of Legal Cynicism

More than one commentator has noted that the majority decision in Obergefell v. Hodges, requiring states to issue marriage licenses to same-sex couples, actually was decades in the making. No-fault divorce and our culture of sexual promiscuity, separating sex and even pregnancy from childbirth, inevitably dissolved the social consensus recognizing the natural family, including its children, [...]

First Steps Toward Protecting Parental Authority

In a recent article on the Obama Administration's incremental assault on parental moral authority, Caleb Henry observes that the Supreme Court’s Obergefell decision portends the government’s imposition of a progressive “moral reeducation program” against private schools and families. Pointing to increasingly explicit public school interjection into morality traditionally entrusted to the family and church, Henry asks, [...]

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