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October 26, 2018|Administrative State, Chevron, Chief Justice John Roberts, Delegation, Eric Posner, Partisanship

The Hysteria about the New Roberts Court

by John O. McGinnis|

Image from a "Unite for Justice" rally in New York City, August 26, 2018 (Christopher Penler/shutterstock.com).
Now that Justice Kavanaugh is confirmed we can expect a spate of articles saying that the new majority on the Supreme Court will cause the sky to fall.

October 19, 2018|Chief Justice John Roberts, Dred Scott, Plessy v. Ferguson, Roe v. Wade

Roberts Must Recognize that the Court Also Errs in Striking Down Laws

by John O. McGinnis|

Chief Justice John Roberts before the 2013 State of the Union Address (Joshua Roberts / Alamy Stock Photo).
The Supreme Court has wrongly invalidated laws, just as it has upheld unjust ones.

June 29, 2018|Chief Justice John Roberts, Justice Anthony Kennedy, Obergefell v. Hodges, Planned Parenthood v. Casey, Roe v. Wade, Supreme Court

Our Philosopher-King Retires

by Titus Techera|

Seated from left, Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony M. Kennedy, Chief Justice of the United States John G. Roberts, Associate Justice Clarence Thomas, and Associate Justice Stephen Breyer and Standing behind from left, Associate Justice Elena Kagan, Associate Justice Samuel Alito Jr., Associate Justice Sonia Sotomayor, and Associate Justice Neil Gorsuch. (Olivier Douliery/Pool via CNP /MediaPunch/Alamy.com)
Justice Kennedy's retirement marks the end of an era, but are we prepared for what comes next?

June 28, 2018|Chief Justice John Roberts, Justice Anthony Kennedy, Justice Antonin Scalia, Justice Elena Kagan, Median voter, Supreme Court

Meet the New Pivotal Justice on the Supreme Court: John Roberts

by James R. Rogers|

Justice Anthony Kennedy and Chief Justice John Roberts at a joint session of Congress on Capitol Hill in Washington, DC, February 28, 2017. (MediaPunch Inc/Alamy Live News).
With Justice Kennedy's retirement, the new holder of the balance on the Supreme Court is Chief Justice John Roberts.

July 3, 2017|Blaine Amendments, Chief Justice John Roberts, Free Exercise Clause, Justice Sotomayor, The Sacred Rights of Conscience, Trinity Lutheran Church v. Comer

Blaine’s Descendants Disinherited

by Mark David Hall|

 

 

The Supreme Court’s decision in Trinity Lutheran Church v. Comer is a resounding victory for religious liberty. Seven of nine Supreme Court Justices held that Missouri may not offer a benefit to all nonprofit organizations except religious ones.

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February 23, 2017|Chief Justice John Marshall, Chief Justice John Roberts, James Madison, Judiciary Act of 1925, Ronald Dworkin, Thomas Jefferson

Is the Supreme Court a Court?

by Keith Whittington|

Columns at the U.S. Supreme Court

Is the U.S. Supreme Court a court? On the one hand, the answer seems obvious. It says so right in there in the name. Plus, the justices wear those funny robes. Strong evidence, I admit. On the other hand, see every Supreme Court decision involving constitutional law over the past century and a half. I could rest my case there, but I haven’t gotten to the point yet. If the Supreme Court is a court, it is a weird one, and that often creates a great deal of confusion about how the Court does or should operate.

Generally speaking, we might think that a key characteristic of a court is that it resolves disputes in accord with some pre-established set of legal rules. It is not clear that the Supreme Court actually does that. The justices have relatively little interest in resolving disputes, and they have little concern for pre-established legal rules.

Let’s unpack that a bit.

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November 17, 2013|Chief Justice John Roberts, Commerce Clause, Heritage Foundation, Hillarycare, Obamacare, Tax Power

Obamacare’s Path to Power

by Asheesh Agarwal|

The story of the Affordable Care Act is as twisted and bizarre as anything ever written by Stephenson, Kafka, or Orwell. It is an Act that saw the President oppose his signature legislation, before he supported it, and that saw the President’s challenger sire the Act, before he disowned it. The Act sparked conservative outrage around the country, though it was conceived in the heart of the conservative movement. It passed only through handouts to some States, but was partially stricken as violating the financial free will of all the States. And, of course, it is an Act that raised…

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July 11, 2012|Chief Justice John Roberts, Dr. Bonham's Case, EdwardCoke, John Marshall, Judicial Review, Obamacare, Self-Government, William Blackstone

Judicial Deference, Self-government, and Judicial Rule, or Have a Coke and a Smile

by Richard Samuelson|

In my previous post, I noted that the distinction between a tax and a regulation was well understood by the American revolutionaries. The distinction had to do with the purpose of the law. A tax was a law that was designed to raise money to pay for government, and a regulation was designed to influence (or regulate) human actions. To be sure, taxes do influence behavior, and many regulations do raise revenue, but those features are incidental to their purpose. Hence the colonists thought it would be legal for Parliament to regulate trade by making foreign molasses more expensive in the colonies, but Parliament could not legally impose a duty on foreign molasses if the main purpose of that duty was to raise revenue.

Tories, according to the American definition of the term, claimed that this was a distinction without difference. From their perspective, all laws that raise revenue were equally legal, regardless of the purpose of the law. For their part, the American Whigs said that the difference between a tax to raise revenue and a duty to regulate trade was obvious and important. Their constitutionalism focused on ends as much as it focused on means. Because the government existed, in part, to secure property, it was unconstitutional for Parliament to tax the colonists without their consent.

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July 2, 2012|Chief Justice John Roberts, J.B. Thayer's The Origin and Scope of the American Doctrine of Constitutional Law", Judicial Restraint, NFIB v. Sebelius, Originalism

“A lawyer’s rigor with a statesman’s breadth of view”

by Greg Weiner|

In the course of his thoughtful discussion of Chief Justice Roberts’ reported change of mind on NFIB v. Sebelius, Mike Rappaport makes what seems, at first glance, to be an unassailable assertion: A justice ought not to consider extraneous circumstances surrounding a decision, such as its effect on his or her reputation.  Instead: “The decision is supposed to be based on a justice’s view of the law.”

But closer inspection reveals tension between that premise and the doctrine of judicial restraint, which I recently argued in this space was theoretically but not inherently compatible with the philosophy of originalism that Rappaport, like Justices Scalia and Thomas, espouses.  If Federalist 78 is to be believed, a justice ought very much to consider circumstances beyond his or her narrow reading of the law.

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June 15, 2012|Affordable Care Act, Chief Justice John Roberts, Constitution-in-Exile, Florida v. HHS, Jeff Rosen, Randy Barnett, severability

Severance & Severability, Part I

by Tom Christina|

Jeff Rosen’s May 4th column in The New Republic has sparked a lively discussion on this blog, the VC, and elsewhere.  The article consists of two very unequal parts, because Rosen’s wind up is disproportionately long in comparison with his pitch.  He leads off with a critique of Circuit Judge Janice Brown’s concurring opinion in Hettinga v. United States, available here, then lurches into a description of a “Constitution-in-exile movement” said to be made up of judges and think-tank activists hoping to “resurrect” pre-New Deal legal doctrines in order “to dismantle the post–New Deal regulatory state.”

In Rosen’s view, the “Constitution-in-exile movement” has brought about a schism among conservative jurists over an issue Rosen thinks is crucial to one of Chief Justice Roberts’ ambitions:  bringing greater unity to the Court.  That issue is adherence to a philosophy of “judicial restraint” that in Rosen’s opinion characterized an older generation of conservative jurists.  Rosen worries that today, even “relative moderates” may be tempted to abandon that philosophy.

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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