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Scrutiny for Me, But Not For Thee? New York Times Columnist Praises Courts for “Calling out Legislators” in Abortion and Voting Rights Cases

Evan Bernick August 25, 2016
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It is not often that a progressive columnist offers full-throated praise for judicial decisions to invalidate regulations that are said to be necessary to protect public health and safety. And yet the New York Times recently presented its readers with that rare spectacle.

In a column for the Times, longtime (now semi-retired) Supreme Court reporter Linda Greenhouse praises the Supreme Court for “calling out legislators” in Whole Woman’s Health v. Hellerstedt, a decision in which the Court carefully scrutinized and ultimately struck down Texas legislation requiring physicians who provide abortions to have active admitting privileges at a hospital within 30 miles of the location where the abortions were provided and mandating that any facility at which abortions were provided satisfy the state’s standards for “ambulatory surgical centers.” Greenhouse also praises a decision by the Fourth U.S. Circuit Court of Appeals in a case involving a controversial North Carolina election reform law that wrought a number of changes in voting mechanisms and procedures, including a voter ID requirement and restrictions on early voting, same-day registration, out-of-precinct voting, and preregistration. Writing for a unanimous three-judge panel in North Carolina State Conference of the NAACP v. McCrory, Judge Diana Motz parsed the evidence in a voluminous record and determined that the “new provisions target[ed] African Americans with almost surgical precision”; that they “constitute[d] inapt remedies for the problems assertedly justifying them”; and that they “impose[d] cures for problems that did not exist.” The Fourth Circuit panel concluded that the law had been enacted “with discriminatory intent”—to impede “a particular race’s access to the franchise because its members vote for a particular party”—and remanded the case to the district court with instructions to enjoin the challenged provisions. [Read More]

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Advancing Heterodoxy by John O. McGinnis

New Heterodox Academy initiative

Timothy Courtney August 24, 2016
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Here's the latest from the Heterodox Academy:

Over at Heterodox Academy, we have been hearing from students who are concerned that their universities exhibit a rigid ideological orthodoxy, with dissenting faculty members almost nonexistent and dissenting students afraid to speak their minds. We agree that this sort of academic climate is profoundly unhealthy: It tends to stifle the sort of uncensored intellectual inquiry that produces groundbreaking scholarship and robust education. Indeed, the Supreme Court itself has cautioned against a “pall of orthodoxy” in education: “The classroom is peculiarly the marketplace of ideas. The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.”  Keyishian v. Board of Regents, 385 U. S. 589, 603 (1967) (internal quotations omitted).

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Supreme Court Justice Antonin Scalia

Judge O’Scannlain’s Tribute to Justice Scalia

Max Raskin August 24, 2016
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Following the death of Justice Scalia, there have been numerous tributes – from articles and eulogies to a renamed law school. But perhaps none is more fitting than a judicial opinion from the Ninth Circuit, which employed the kind of legal reasoning and statutory analysis that the Justice championed.

Justice Scalia’s supporters revel in providing counterexamples to confound his critics who viewed him as a knuckle-dragging puritan. His defense of flag burning and his Fourth Amendment jurisprudence are two of the most frequent rejoinders to the Scalia qua legislator trope.

In United States v. McIntosh, Judge Diarmuid O'Scannlain writes his performative tribute to the Justice with a textbook case of applying neutral principles to reach a conclusion possibly contrary to his beliefs.[1] [Read More]

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The Rise of Zoning and the Decline of Affordable Housing

Emily Hamilton August 23, 2016
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The New York Times recently published a series of infographics demonstrating the extent to which current zoning laws restrict development in Manhattan. New York City’s zoning code has grown increasingly binding since it was first introduced by planners in 1916. Relying on data from Quantierra, a New York real estate firm, the graphics show that forty percent of existing buildings on the iconic island would not be permitted by today’s rules. [Read More]

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A Response to Bill Otis’s "Baker’s Dozen" by John G. Malcolm

"Super-Recognizers" Bring New Edge to Policing

Jonathan Keim August 23, 2016
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The New Yorker has a fascinating article about a special unit established in London's Metropolitan Police Service that has peculiar -- in every sense of the word -- expertise in facial recognition: 

Most police precincts have an officer or two with a knack for recalling faces, but the Met (as the Metropolitan Police Service is known) is the first department in the world to create a specialized unit. The team is called the super-recognizers, and each member has taken a battery of tests, administered by scientists, to establish this uncanny credential.

Read the whole thing. 

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California Flag close up
Photo Credit: CGinspiration (link)

(Temporary?) Reprieve for Students at California Religious Colleges

Gregory S. Baylor August 23, 2016
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Students at California’s religious colleges have dodged a very large caliber bullet . . . for now.

As explained in a prior blog post, earlier versions of California Senate Bill 1146 would have forced the state’s religious colleges to choose between following their faith and accepting students who receive state financial aid. [Read More]

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Capitol dome under construction

Roundtable at APSA 2016: Congress, Delegation, and the Administrative State

Timothy Courtney August 22, 2016
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The Federalist Society's Faculty Division will host a roundtable discussion, titled "Congress, Delegation, and the Administrative State," at the 2016 American Political Science Association's Annual Meeting in Philadelphia on September 2nd. We invite anyone planning to attend the conference to join us for what promises to be an excellent discussion featuring:

  • Lee Drutman, New America Foundation & The Johns Hopkins University
  • Gordon Lloyd, Pepperdine University & Ashbrook Center
  • Daniel H. Lowenstein, UCLA School of Law
  • Neomi Rao, George Mason University Antonin Scalia School of Law
  • Moderator: Michael Uhlmann, Claremont Graduate University

For full details and to read the panel abstract, click here.​ ​If you plan to attend, please email christopher.goffos@fed-soc.org to let us know.

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A Response to Bill Otis’s "Baker’s Dozen" by John G. Malcolm

Sign Crimes

Christina Sandefur August 21, 2016
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Entrepreneurs wishing to advertise new products or services are often thwarted by local ordinances that censor their efforts to communicate certain messages to the public. In 2015, the U.S. Supreme Court ruled in Reed v. Town of Gilbert that such restrictions are unconstitutional, and struck down an unfair and confusing set of restrictions imposed on signs by the Town of Gilbert, Arizona. But many cities across the country continue to threaten small business owners with fines and even jail time for putting up a “For Lease” sign or a banner offering free meals to veterans.Entrepreneurs wishing to advertise new products or services are often thwarted by local ordinances that censor their efforts to communicate certain messages to the public. In 2015, the U.S. Supreme Court ruled in Reed v. Town of Gilbert that such restrictions are unconstitutional, and struck down an unfair and confusing set of restrictions imposed on signs by the Town of Gilbert, Arizona. But many cities across the country continue to threaten small business owners with fines and even jail time for putting up a “For Lease” sign or a banner offering free meals to veterans. [Read More]

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Chevron Deference in the Circuit Courts: An Empirical Study

Stephen Vaden August 17, 2016
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Recent opinions from the Supreme Court and policy debates within the halls of Washington have placed a renewed focus on the amount of deference administrative agencies receive when interpreting statues. Kent Barnett of the University of Georgia Law School and Christopher Walker of Ohio State’s Moritz College of Law have written a draft law review article entitled Chevron in the Circuit Courts that empirically examines the effect of so-called Chevron, and its weaker cousin Skidmore, deference on cases heard by the federal intermediate appellate courts. Administrative law practitioners should keep the article close at hand. [Read More]

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