James Bopp, Jr., and Richard E. Coleson are attorneys with The Bopp Law Firm, PC.

The topic is how Supreme Court jurisprudence on “reproductive rights” might change if a “conservative nominee” succeeds Justice Antonin Scalia. We focus on abortion jurisprudence because that was at issue in Whole Woman’s Health v. Heller­stedt and other “reproductive rights” are less litigated. We understand “conservative” to mean having Scalia’s judicial philosophy.

While current Court members remain and the “undue burden” test reigns, a conservative successor would change the outcome of an abortion case where Justice Anthony Kennedy (i) sees no undue burden and (ii) is the swing vote. For example, in Stenberg v. Carhart, Kennedy saw no undue burden but was not the swing vote, being with Scalia in the five-four dissent against striking Nebraska’s partial-birth-abortion ban. In Gonzales v. Carhart, Kennedy saw no undue burden and was the swing vote, so he wrote a five-four opinion upholding a federal partial-birth-abortion ban. In Hellerstedt, Kennedy saw an undue burden and was the swing vote, so he joined a five-three opinion striking Texas’s regulation of abortionists and abortion clinics.

Continue reading »

 
Share:

Thursday round-up

By on Sep 15, 2016 at 8:42 am

Briefly:

  • In The National Law Journal (subscription or registration required), Tony Mauro reports that “Supreme Court Justice Ruth Bader Ginsburg on Wednesday chided law firms for not taking more steps to improve the balance between home and work for lawyers with young children.”
  • Georgetown University Law Center’s Supreme Court Institute has released its preview of the Court’s argument docket for October Term 2016.
  • In Supreme Court Brief (subscription required), Tony Mauro remembers the late Frank Wagner, long-time “reporter of decisions” at the Supreme Court, who “put the justices’ decisions into publishable form for more than 23 years and in 2000 helped to put them online.”
  • In The National Law Journal (subscription or registration required), Tony Mauro discusses how the death of Justice Scalia has slowed the Court’s “pro-business momentum” in business-related areas of the law, such as arbitration and class actions, and how his replacement could alter the legal landscape in those areas.
  • In Cato at Liberty, Trevor Burrus and David McDonald argue that the Court should grant review in Foster v. Vilsack, which involves the Department of Agriculture’s interpretation of what constitutes a protected wetland, noting that the case offers the Court an opportunity to “make it clear to administrative agencies that they cannot avoid judicial review by refusing to promulgate clear, unambiguous regulations.”

Continue reading »

Posted in Round-up
 
Share:

Petition of the day

By on Sep 14, 2016 at 11:16 pm

The petition of the day is:

16-210

Issue: Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine.

Eric Baxter is Senior Counsel at The Becket Fund for Religious Liberty in Washington, D.C.

The Supreme Court has a long record of generously construing the Free Exercise Clause to accommodate religious practices regardless of their public popularity. While new tension points are always arising, the Justices are likely to continue that trend within the framework of existing laws and jurisprudence. Thus, regardless of who is appointed to fill the seat vacated by the late Justice Antonin Scalia, Americans may reasonably anticipate that their religious beliefs and practices will continue to be protected by the Court, free from “the vicissitudes of political controversy.”

Continue reading »

 
Share:

Event announcements

By on Sep 14, 2016 at 9:55 am

On September 20 at 12 p.m., the Heritage Foundation will host a Supreme Court preview. Speakers will include Paul Clement and Carter Phillips; John Malcolm will serve as host. More information about this event, which will be held at the Heritage Foundation’s Lehrman Auditorium, is available on the foundation’s website.

On September 27 at 6 p.m., the Georgetown University Federalist Society Chapter will host a discussion on “Supreme Court Advocacy in the Obamacare Cases.” Speakers will include Josh Blackman, Mike Carvin, Erin Murphy, and Marty Lederman; Adam Liptak will serve as moderator. More information about this event, which is open to the public, is available on the chapter’s Facebook page.

 
Share:

Wednesday round-up

By on Sep 14, 2016 at 8:56 am

Yesterday, the Supreme Court rejected an attempt by Ohio Democrats to block an appeals court ruling upholding the state’s elimination of “Golden Week,” a window at the beginning of the early voting period in which Ohio residents could register and vote on the same day. Amy Howe covered the decision for this blog. Additional coverage comes from Nina Totenberg at NPR, who notes that “Democratic lawyers were not surprised by the court’s action Tuesday, since they had little expectation of blocking the Ohio cutbacks — especially compared with the far more draconian changes in other states such as Texas, North Carolina and Michigan,” Robert Barnes of The Washington Post, Adam Liptak of The New York Times, and Greg Stohr at Bloomberg. Commentary comes from Rick Hasen, who at his Election Law Blog asserts that the Democrats’ case was “weak” and “that cases like this make bad law when there are more serious voting cutbacks.”

Continue reading »

Posted in Round-up
 
Share:

Petition of the day

By on Sep 13, 2016 at 11:34 pm

The petition of the day is:

16-157

Issue: Whether, when an individual consents to the search of a room he occupies, a law enforcement officer may, consistent with the Fourth Amendment, search a closed container found within that room.

 
Share:

When early voting starts in Ohio next month, it will not include “Golden Week” – a window at the start of the early voting period in which voters can both register to vote and vote on the same day. The state implemented Golden Week in the wake of the 2004 presidential election, when many Ohio voters encountered long waits at the polls, but in 2013 the Ohio legislature passed a law that abolished it. Last month, a federal appeals court rejected a challenge to the 2013 law by Ohio Democrats, who argued that the elimination of Golden Week discriminated against African Americans, who were more likely to use the early voting opportunities. Today the Supreme Court – without any noted dissent – turned down a last-ditch effort by Democrats to block the appeals court’s ruling and reinstate Golden Week for the upcoming election.

Continue reading »

Posted in Featured
 
Share:

Marci Hamilton is the Fox Family Pavilion Distinguished Scholar at the University of Pennsylvania and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty (which was nominated for a 2015 Pulitzer Prize) and Justice Denied: What America Must Do to Protect Its Children.

The free exercise of religion has been in flux for over a quarter of a century, and the 2016 presidential election, which entails a Supreme Court appointment, is unlikely to calm the waters quickly, regardless of who wins. The instability of free exercise doctrine has been the result of Congress enacting its own standard for free exercise cases, which has moved the First Amendment to the periphery and invited the introduction of extreme religious liberty claims that upend prior free exercise principles. I will focus on the potential effects on free exercise if Democrats control the presidency and the Senate, as many predict. The voters’ choice of president and members of Congress, and then the choice of the next Supreme Court Justice, will determine whether the drive to extreme religious liberty will be checked or abetted.

Continue reading »

 
Share:

Event announcement

By on Sep 13, 2016 at 10:00 am

On September 23 at 8:30 a.m., the Center for Business Law & Regulation at Case Western Reserve University School of Law will host a conference on the Roberts Court’s approach to business law issues. More information about this event in Cleveland, Ohio, which will feature three panel discussions, is available at CWRU Law’s website.

 
Share:
More Posts: More Recent PostsOlder Posts
Term Snapshot
Awards