Search for: "Jonathan H. Adler"
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10 Oct 2024, 7:22 pm
The Roberts Court has long been described as a "pro-business" court. News reports summarizing John Roberts' first term as Chief Justice described the Court as business friendly. A New York Times Magazine profile was simply labeled "Supreme Court, Inc." Activist groups tallied the win-loss record of the Chamber of Commerce, and academics published quantitative assessments purporting to show that the Supreme Court under Chief Justice Roberts was more sympathetic to business… [read post]
10 Mar 2024, 2:00 pm
[An "uncompromising" journal cancels an essay for failing to say the right things.] Guernica, a non-profit journal publishing work at the intersection of art and politics, published a powerful essay by a literary interpreter working in Israel and her experience in the wake of October 7 and the resulting war between Israel and Hamas. The essay, "From the Edges of a Broken World," by Joanna Chen, provides a first-hand account of how life has changed for the author. It is deeply… [read post]
12 Jan 2024, 2:26 pm
[The Fish and Wildlife Service inexplicably removes a species from its tally of species "delisted" under the Endangered Species Act.] It seems that a species that has been delisted as an endangered species has also been delisted from the official list of species that have been delisted. Here's the story (so far). While working on my forthcoming symposium article evaluating the first fifty years of the Endangered Species Act (ESA), I looked at the number of species that have been… [read post]
6 Oct 2023, 3:52 pm
[Is Common Good Constitutionalism anything more than politics by other means?] The University of Chicago Law Review has just published Brian Leiter's critique of Professor Adrian Vermeule's Common Good Constitutionalism. As you might expect, Leiter is not a fan. What is interesting is the extent to which this critique overlaps or intersects with those from the Right, such as that offered by Judge Bill Pryor. Here is the abstract: Adrian Vermeule proposes an alternative to… [read post]
21 Mar 2023, 3:38 am
[Is testimony over Zoom consistent with a criminal defendant's Constitutional rights?] The New York Times' Adam Liptak has an interesting "Sidebar" column on a case raising the question of whether a court's decision to allow a witness to testify over Zoom violated a criminal defendant's rights under the Confrontation Clause. In March 2021, a year into the coronavirus pandemic, a key witness in a criminal case in a federal court in New York was allowed to testify… [read post]
10 Jul 2022, 10:34 am
[The Supreme Court proclaimed this term that the Lemon test had been abandoned. Is this what is in story for Chevron?] In Kennedy v. Bremerton School District, the Supreme Court swept aside the fifty-year-old Lemon test (from Lemon v. Kurtzman) for evaluating Establishment Clause claims under the First Amendment on the grounds that the Court has "long ago abandoned Lemon and its endorsement test offshoot." Though never formally overruled, the Court has now recognized… [read post]
1 Jul 2022, 1:18 pm
[What should courts do when an agency action is based upon scientific evidence within the agency's expertise, but also implicates heightened scrutiny?] Federal courts are generally quite deferential to administrative agency conclusions about scientific matters within the agency's expertise. This is particularly true where the subject matter concerns questions on the frontiers of science, or in areas that are contested. Courts are not experts on the underlying scientific questions,… [read post]
15 Jun 2022, 7:16 am
[Justice Gorsuch has dissented from two-thirds of Justice Barrett's majority opinions this term.] Yesterday I noted that Justices Gorsuch and Barrett have repeatedly authored dueling opinions in the brief time they have been together on the Supreme Court. Today, it happened again. The first Supreme Court opinion released this morning was George v. McDonough, a concerning the retroactive effect of decisions invalidating Department of Veterans' Affairs regulations. Writing for the… [read post]
31 May 2022, 8:07 pm
[With thirty-three opinions in argued cases yet to issue, the Supreme Court is well behind the usual pace.] The Supreme Court issued orders today, denying certiorari in a raft of cases, temporarily staying the mandate of a Third Circuit decision in a Pennsylvania election dispute, denying a petition for a stay to prevent Texas legislators from having to testify in a voting rights suit, and (perhaps most notably) vacating the Fifth Circuit's stay of a district court order enjoining Texas's… [read post]
23 Feb 2022, 7:57 am
[An interesting question from Justice Kagan.] Yesterday, the Supreme Court heard oral argument in Ysleta del Sur Pueblo v. Texas, a case concerning the authority of specific Indian Tribes to regulate bingo and other gaming activities on Indian lands. The case largely turns on a question of statutory interpretation -- specifically whether a federal statute prevents Texas from enforcing gaming regulations on tribal territory. As this case involves Indian territory, there is a question whether the… [read post]
19 Jul 2018, 6:32 pm
Michael Anton is best known for penning the infamous, pseudonymous "Flight 93 Election" essay justifying conservative support for Donald Trump. After the 2016 election, Anton briefly joined the Trump Administration as a national security advisor. Now Anton is a research fellow at Hillsdale College and aspiring pundit. In a recent Washington Post op-ed, Anton takes issue with birthright citizenship -- the principle that those born within this country are citizens of the United States -- and… [read post]
9 Jul 2018, 4:49 pm
President Trump's pick for the Supreme Court is likely to be confirmed because Republicans maintain a slim majority in the Senate. Some commentators lament this fact, and the lack of a filibuster option. Some go farther, suggesting that the current situation represents a departure from the historical norm. Tonight on MSNBC's "Hardball," for instance, Chris Matthews referred to "the old 60-vote requirement," as if this is a thing. He's mistaken, as are all those who… [read post]
28 Jun 2018, 8:13 am
Justice Kennedy's departure from the Supreme Court will mark the end of the Early Roberts Court, or what many of us would often refer to as the "Kennedy Court." Justice Kennedy was in the Court's majority more often than any other justice. His distinct jurisprudence, combined with his position as the Court's median justice, meant that his particular (and often idiosyncratic) views had a disproportionate impact on the Court's jurisprudence. What comes next will be… [read post]
4 Apr 2018, 6:46 am
Justice Ruth Bader Ginsburg's close friendship with the late Justice Antonin Scalia is well known. Indeed, the Notorious RBG wrote the Foreword to Scalia Speaks: Reflections on Law, Faith, and Life Well Lived, the recently published volume of her notoriously conservative colleagues speeches and lectures. Was the Ginsburg-Scalia relationship an aberration? I would hope not. In recent remarks at the Vanderbilt Law School, Justice Sonia Sotomayor commented on Justice Clarence Thomas. From the… [read post]
3 Apr 2018, 6:21 am
Next week will mark the one-year anniversary of Neil Gorsuch's swearing in as a Supreme Court justice. As a consequence, we'll soon be treated to a flurry of articules evlauating his first year on the court. It may be particularly interesting to consider howother jursits evaluate Justice Gorsuch. As it happens, Justice Gorsuch's record was the subject of a lecture by the Honorable Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit at the Case Western Reserve University… [read post]
19 Jan 2018, 8:05 am
Next Friday, January 26, the Center for the Study of the Administrative State at the George Mason University Antonin Scalia Law School will host a conference on "Free Speech and the Administrative State." Speakers will include legal academics, such as Martin Redish, Tamara Piety, Samuel Bagenstos, Gus Hurwitz, David Vladeck, and Shep Melnick, in addition to practitioners and policy experts, such as Coleen Klasmeier, Andrew McLaughlin, Mike Godwin, Alan Butler, and Harold Kim, as well as… [read post]
19 Jan 2026, 6:03 am
[Yuval Levin offers a useful way to understand the difference.] In a recent interview with Ezra Klein of the New York Times, Yuval Levin of the American Enterprise Institute offered a useful way to understand the difference between conservatism and populism. One way to think about the difference is about whether your politics begins from what you care about most — what you love — or whether it begins from what you fear and what you hate. To me, as a young person, conservatism was… [read post]
20 Dec 2021, 6:14 am
And at “The Volokh Conspiracy,” Jonathan H. [read post]
17 Aug 2023, 8:55 am
[A fascinating new exploration of Frederick Douglass' constitutional thought. ] Professor Bradley Rebeiro has an interesting new paper on the constitutional thought of Frederick Douglass, "Frederick Douglass and the Original Originalists." The article is forthcoming in the BYU Law Review, but a draft is available on SSRN. Here is the abstract: Constitutional scholars incessantly grapple over the significance of the Constitution's original meaning. More specifically, they… [read post]
25 Jun 2023, 11:46 am
[The Honorable David B. Sentelle has heard his last case.] This year, the Honorable David B. Sentelle is retiring from the U.S. Court of Appeals for the D.C. Circuit. He heard his last oral argument in April, and Judge Sentelle's opinion from that sitting was issued on Friday. Earlier this month the court held a retirement celebration and the judge hosted one last clerk reunion. Judge Sentelle was appointed to the D.C. Circuit in 1987 by President Ronald Reagan, and he took senior status in… [read post]
