Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government Neal Devins
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Reckless Caution: the Perils of Judicial Minimalism
RECKLESS CAUTION: THE PERILS OF JUDICIAL MINIMALISM Tara Smith* ABSTRACT Judicial Minimalism is the increasingly popular view that judges decide cases properly to the extent that they minimize their own imprint on the law by meticulously assessing “one case at a time,” ruling on narrow and shallow grounds, eschewing broader theories, and altering entrenched legal practices only incremen- tally. Minimalism’s ascendancy across the political spectrum, be- ing embraced by advocates of both right-wing and left-wing ide- ologies, is touted as a sign of its appropriate value-neutrality. This paper argues that such sought-after neutrality is, in fact, untenable. While others have objected to some of Minimalism’s specific tenets, critics have missed its more fundamental failing: it is an incoherent concept. On analysis, Minimalism’s several planks and rationales prove mutually contradictory and, corre- spondingly, offer conflicting guidance to judges. Thus the reason that Minimalism can appeal to people of such disparate substan- tive views is that in practice, it is merely a placeholder invoked to * Many people have offered helpful discussion of the ideas developed in this paper or feedback on earlier drafts. I am grateful to audiences at Oxford’s Uehiro Center and the University of Virginia, and in particular to Tom Bowden, Onkar Ghate, Wesley Hottot, Loren Lomasky, Al Martinich, Matt Miller, Adam Mossoff, Matt O’Brien, Greg Salmieri, Julian Savulescu, John Simmons, and Kevin Stuart. 347 348 New York University Journal of Law & Liberty [Vol. 5:347 sanction a grab-bag of desiderata rather than a distinctive method of decision-making that offers genuine guidance. -
Culture Wars' Reloaded: Trump, Anti-Political Correctness and the Right's 'Free Speech' Hypocrisy
The 'Culture Wars' Reloaded: Trump, Anti-Political Correctness and the Right's 'Free Speech' Hypocrisy Dr. Valerie Scatamburlo-D'Annibale University of Windsor, Windsor, Ontario, Canada Abstract This article explores how Donald Trump capitalized on the right's decades-long, carefully choreographed and well-financed campaign against political correctness in relation to the broader strategy of 'cultural conservatism.' It provides an historical overview of various iterations of this campaign, discusses the mainstream media's complicity in promulgating conservative talking points about higher education at the height of the 1990s 'culture wars,' examines the reconfigured anti- PC/pro-free speech crusade of recent years, its contemporary currency in the Trump era and the implications for academia and educational policy. Keywords: political correctness, culture wars, free speech, cultural conservatism, critical pedagogy Introduction More than two years after Donald Trump's ascendancy to the White House, post-mortems of the 2016 American election continue to explore the factors that propelled him to office. Some have pointed to the spread of right-wing populism in the aftermath of the 2008 global financial crisis that culminated in Brexit in Europe and Trump's victory (Kagarlitsky, 2017; Tufts & Thomas, 2017) while Fuchs (2018) lays bare the deleterious role of social media in facilitating the rise of authoritarianism in the U.S. and elsewhere. Other 69 | P a g e The 'Culture Wars' Reloaded: Trump, Anti-Political Correctness and the Right's 'Free Speech' Hypocrisy explanations refer to deep-rooted misogyny that worked against Hillary Clinton (Wilz, 2016), a backlash against Barack Obama, sedimented racism and the demonization of diversity as a public good (Major, Blodorn and Blascovich, 2016; Shafer, 2017). -
Religious Liberty for a Select Few the Justice Department Is Promoting Discrimination Across the Federal Government
GETTY MAY IMAGES/CHERISS Religious Liberty for a Select Few The Justice Department Is Promoting Discrimination Across the Federal Government By Sharita Gruberg, Frank J. Bewkes, Elizabeth Platt, Katherine Franke, and Claire Markham April 2018 WWW.AMERICANPROGRESS.ORG Religious Liberty for a Select Few The Justice Department Is Promoting Discrimination Across the Federal Government By Sharita Gruberg, Frank J. Bewkes, Elizabeth Platt, Katherine Franke, and Claire Markham April 2018 Contents 1 Introduction and summary 4 Jeff Sessions’ religious liberty guidance is a solution in search of a problem 5 The guidance misinterprets constitutional and statutory religious liberty protections 9 The guidance’s impact will be far-reaching and expensive 18 Conclusion 20 About the authors 22 Endnotes Introduction and summary In its first year, the Trump administration has systematically redefined and expanded the right to religious exemptions, creating broad carve-outs to a host of vital health, labor, and antidiscrimination protections. On May 4, 2017—the National Day of Prayer—during a ceremony outside the White House, President Donald Trump signed an executive order on “Promoting Free Speech and Religious Liberty.” At the time, the executive order was reported to be a “major triumph” for Vice President Mike Pence, who, as governor of Indiana, famously signed a religious exemption law that would have opened the door to anti-LGBTQ discrimination.1 Among its other directives, the order instructed Attorney General Jeff Sessions to “issue guidance interpreting -
Samuel Alito: Populist William Araiza Brooklyn Law School, [email protected]
Brooklyn Law School BrooklynWorks Faculty Scholarship 2017 Samuel Alito: Populist William Araiza Brooklyn Law School, [email protected] Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty Part of the Law and Politics Commons, and the Other Law Commons Recommended Citation 103 Cornell Law Review Online 101 (2017) This Article is brought to you for free and open access by BrooklynWorks. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BrooklynWorks. ESSAY SAMUEL ALITO: POPULIST William D. Araiza† I. EVALUATIONS OF JUSTICE ALITO ............................ 103 II. THE EVIDENCE ..................................................... 107 A. Brown v. Entertainment Merchants ............... 107 B. Caetano v. Massachusetts ............................ 111 C. Snyder v. Phelps ........................................... 113 D. Fisher v. University of Texas ......................... 116 E. Ricci v. DeStefano ......................................... 118 III. EVALUATING THE OPINIONS .................................... 120 A. Differences, Similarities, and Caveats .......... 120 B. Justice Alito’s Rhetorical Style ..................... 123 IV. SAMUEL ALITO: POPULIST ...................................... 130 In 2015, the tenth anniversary of Justice Samuel Alito’s ascension to the Court passed without the level of attention lavished on the same milestone reached that year by Chief Justice John Roberts.1 The difference in attention is understandable: the Chief Justiceship has given John Roberts † Professor of Law, Brooklyn Law School. Thanks to participants at the Loyola University Chicago Law School’s Constitutional Law Colloquium, and in particular Eric Berger and Corinna Lain, for helpful comments on an earlier version of this Essay. Thanks also to Mark Potkewitz for fine research assistance. 1 See, e.g., Symposium, Ten Years as the Chief: Examining a Decade of John Roberts on the Supreme Court, 38 CARDOZO L. -
“Equal Right to the Poor” Richard M
“Equal Right to the Poor” Richard M. Re† By law, federal judges must swear or affirm that they will “do equal right to the poor and to the rich.” This frequently overlooked oath, which I call the “equal right principle,” has historical roots dating back to the Bible and entered US law in a statute passed by the First Congress. Today, the equal right principle is often understood to require only that judges faithfully apply other laws. But that reading, like the idea that the rich and poor are equally barred from sleeping under bridges, is questionable in light of the equal right principle’s text, context, and history. This Article argues that the equal right principle supplies at least a plausible basis for federal judges to consider substantive economic equality when implement- ing underdetermined sources of law. There are many implications. For example, the equal right principle suggests that federal courts may legitimately limit the poor’s disadvantages in the adjudicative and legislative processes by expanding counsel rights and interpreting statutes with an eye toward economically vulnera- ble groups. The equal right principle should also inform what qualifies as a com- pelling or legitimate governmental interest within campaign finance jurispru- dence, as well as whether to implement “underenforced” equal protection principles. More broadly, the equal right principle should play a more central role in constitutional culture. The United States is unusual in that its fundamental law is relatively silent on issues of economic equality. The equal right principle can fill that void by providing a platform for legal and public deliberation over issues of wealth inequality. -
MEMORANDUM To: Senate Democrats From: Senate Health
MEMORANDUM To: Senate Democrats From: Senate Health, Education, Labor, and Pensions Committee Staff Re: President Trump’s Appointments at HHS: A Dangerous Direction for Women’s Health Date: June 5, 2017 As you have seen, President Trump has appointed Charmaine Yoest as Assistant Secretary of Public Affairs and Teresa Manning as Deputy Assistant Secretary for Population Affairs at the Department of Health and Human Services (HHS), where serve as the lead policy experts on a number of programs and services that affect women’s health. Both positions are appointments made at the pleasure of the President and do not require the advice and consent of the Senate. Alarmingly, these two individuals are among the most outspoken opponents nationally of programs, policies, and practices that advance women’s access to healthcare, and both have dedicated their careers to opposing constitutionally-protected reproductive health care, including safe, legal abortion. We write to make sure you are aware of the extreme degree to which, over the course of their careers, Ms. Yoest and Ms. Manning have prioritized undermining women’s access to basic healthcare services like family planning services and have sought to roll back women’s reproductive rights—including by spreading misinformation. Ms. Yoest and Ms. Manning’s goals run directly counter to the Department’s mission to “enhance and protect the health and well-being of all Americans,” and the missions of the programs and offices they directly oversee and lead for the country. Their appointments can and will only accelerate President Trump and Vice President Pence’s plans to roll back women’s health, undermine past progress toward LGBTQ equality, and move HHS in a dangerous direction.1 As Congressional Democrats continue efforts to counter the Trump Administration’s deeply harmful approach toward women’s health and rights, close oversight of HHS’s actions under this Administration remain critical. -
Inside Report 2010
® 200 9–2010 Annual Repo rt FOO D TAX DEFEATE D Again About the Cover The cover features a photograph of Dixon’s apple orchard at har - vest time. Dixon’s, located in Peña Blanca, New Mexico, close to Cochiti, is a New Mexico institution. It was founded by Fred and Faye Dixon in 1943, and is currently run by their granddaughter, Becky, and her husband, Jim. The photo was taken by Mark Kane, a Santa Fe-based photographer who has had many museum and Design gallery shows and whose work has been published extensively. Kristina G. Fisher More of his photos can be seen at markkane.net. The inside cover photo was taken by Elizabeth Field and depicts tomatoes for sale Design Consultant at the Santa Fe Farmer’s Market. Arlyn Eve Nathan Acknowledgments Pre-Press We wish to acknowledge the Albuquerque Journal , the Associated Peter Ellzey Press, the Deming Headlight , the Las Cruces Sun-News , Paul Gessing and the Rio Grande Foundation, the Santa Fe New Mexican , the Printe r Santa Fe Reporter, and the Truth or Consequences Herald for Craftsman Printers allowing us to reprint the excerpts of articles and editorials that appear in this annual report. In addition, we wish to thank Distribution Elizabeth Field, Geraint Smith, Clay Ellis, Sarah Noss, Pam Roy, Frank Gonzales and Alex Candelaria Sedillos, and Don Usner for their permission to David Casados reprint the photographs that appear throughout this annual report. Permission does not imply endorsement. Production Manager The paper used to print this report meets the sourcing requirements Lynne Loucks Buchen established by the forest stewardship council. -
Why a Federal Wealth Tax Is Constitutional
WHY A FEDERAL WEALTH TAX IS CONSTITUTIONAL ISSUE BRIEF BY ARI GLOGOWER, DAVID GAMAGE, AND KITTY RICHARDS FEBRUARY 2021 INTRODUCTION The 2020 Democratic presidential primaries brought national attention to a new direction for the tax system: a federal wealth tax for the wealthiest taxpayers. During their campaigns, Senators Elizabeth Warren (D-MA) and Bernie Sanders (I-VT) both introduced proposals to tax the wealth of multimillionaires and billionaires, and to use the revenue for public investments, including in health care and education. These reforms generated broad public support—even among many Republicans1—and broadened the conversation over the future of progressive tax reform. A well-designed, high-end wealth tax can level the playing field in an unequal society and promote shared economic prosperity. Critics have argued, however, that a wealth tax would be unconstitutional because of the Constitution’s apportionment rule, which requires certain taxes to be apportioned among the states according to their populations. These critics advance maximalist interpretations of the apportionment rule and reconstruct the rule as a significant limit on Congress’s constitutional taxing power. In response to these objections, this brief explains why these critics misinterpret the role of the apportionment rule, and why the Constitution grants Congress broad taxing powers that allow for a wealth tax, whether it is apportioned or not. The maximalist interpretations misapprehend the role of apportionment in the constitutional structure, and improperly elevate a peripheral rule into a major barrier to tax reform. This brief explains why constitutional history and Supreme Court precedents instead support a measured interpretation of the apportionment rule. -
May 30, 2013 the Honorable John A. Boehner
May 30, 2013 The Honorable John A. Boehner Speaker of the House H-232, The Capitol Washington DC 20515 The Honorable Eric Cantor Majority Leader H-329, The Capitol Washington DC 20515 Dear Speaker Boehner and Leader Cantor: We, the undersigned representing millions of Americans, strongly support enactment of protections for religious liberty and freedom of conscience. We thank you for your efforts to protect these fundamental rights of all Americans. Given that the threat to religious freedom is already underway for businesses such as Hobby Lobby and others, and that this threat will be directed at religious non-profit organizations on August 1st, we strongly urge House leadership to take the steps necessary to include such protections in the debt limit bill or other must-pass legislation before that deadline. A vital First Amendment right is threatened by the HHS mandate. The mandate will force religious and other non-profit entities to violate their conscience in their health coverage, or face steep fines and other penalties for offering a noncompliant health plan. The penalties for noncompliance could force employers to stop offering health coverage, negatively impacting them as well as those who work for them and their families. The mandate exempts churches, but not other religious entities such as charities, hospitals, schools, health care providers or individuals. Through this mandate the government is dictating which religious groups and individuals are, and are not, religious enough to have their fundamental freedoms respected. We believe this policy constitutes a gross breach of the Constitution’s religious freedom protections as well as the federal Religious Freedom Restoration Act. -
Mark Steyn, Fred Thompson, John Bolton, Victor Davis Hanson, & Many More Tremendous Speakers (Ok, We’Ll Name Them)
2011_08_01_cover61404-postal.qxd 7/12/2011 8:15 PM Page 1 August 1, 2011 49145 $4.99 MAGGIE GALLAGHER: WHAT’S NEXT FOR MARRIAGE? UnfairUnfair LaborLabor PracticesPractices The Case Against America’s Nightmarish Labor Law $4.99 31 Robert VerBruggen 0 74820 08155 6 www.nationalreview.com base_milliken-mar 22.qxd 7/12/2011 11:30 PM Page 1 toc_QXP-1127940144.qxp 7/13/2011 1:28 PM Page 2 Contents AUGUST 1, 2011 | VOLUME LXIII, NO. 14 | www.nationalreview.com COVER STORY Page 31 National Labor Robert Costa on Thaddeus McCotter Relations Bias p. 21 The National Labor Relations Board under Obama has made BOOKS, ARTS few friends among conservatives. & MANNERS But the current behavior of the 40 HOW BIG HE IS David Paul Deavel reviews NLRB is only the outermost layer of G. K. Chesterton: A Biography, the true problem: the National Labor by Ian Ker. Relations Act. Robert VerBruggen 41 ISLAMIC DEMOCRACY? Victor Davis Hanson reviews The Wave: Man, God, and the Ballot COVER: UNDERWOOD & UNDERWOOD/CORBIS Box in the Middle East, by Reuel ARTICLES Marc Gerecht, and Trial of a Thousand Years: World Order 16 ROMNEY’S RESISTIBLE RISE by Ramesh Ponnuru and Islamism, by Charles Hill. The GOP contemplates a wedding of convenience. 43 THE NIEBUHRIAN MEAN 20 REAGAN’S LASTING REALIGNMENT by Michael G. Franc Daniel J. Mahoney reviews Why It shapes politics still. Niebuhr Now?, by John Patrick Diggins. 21 A HARD DAY’S NIGHT by Robert Costa Rep. Thaddeus McCotter wins the insomniac caucus. 45 CHINA’S BIG LIE John Derbyshire reviews Such Is 23 GAY OLD PARTY? by Maggie Gallagher This [email protected], How New York Republicans caved, and where the marriage campaigns go next. -
Supreme Court Riddle: Who Voted to Hear the Sports- Betting Case?
Supreme Court Riddle: Who Voted To Hear The Sports- Betting Case? 22ND FEB 2018 | WRITTEN BY: TONY BATT The mystery surrounding the U.S. Supreme Court’s decision to hear New Jersey’s appeal of a federal sports-betting ban is almost as intriguing as how the court will rule on the case later this year. Out of 10,000 petitions for certiorari every year, the Supreme Court agrees to hear about 80 appeals, or less than 1 percent, according to the website FindLaw. For an appeal to overcome these astronomical odds, four justices must vote to hear the case. The votes are revealed in a private conference of the nine members of the Supreme Court. The least senior justice begins the voting process which continues according to seniority until the most senior justice’s vote is recorded. The votes are included in notes taken by the least senior justice who gives them to the clerk of the Supreme Court after the conference. New Jersey failed to gain four votes when the Supreme Court denied the state’s first sports-betting appeal on June 23, 2014. But three years and four days later, the Supreme Court announced it would hear New Jersey’s second sports-betting appeal and a ruling is expected before the end of June. The only justice who did not participate in the 2014 vote is Neil Gorsuch, who succeeded the deceased Antonin Scalia last year. Gorsuch seems to be at the top of the list of justices who might have voted to hear New Jersey’s appeal. -
New Mexico Lobo, Volume 074, No 37, 11/2/1970." 74, 37 (1970)
University of New Mexico UNM Digital Repository 1970 The aiD ly Lobo 1961 - 1970 11-2-1970 New Mexico Lobo, Volume 074, No 37, 11/2/ 1970 University of New Mexico Follow this and additional works at: https://digitalrepository.unm.edu/daily_lobo_1970 Recommended Citation University of New Mexico. "New Mexico Lobo, Volume 074, No 37, 11/2/1970." 74, 37 (1970). https://digitalrepository.unm.edu/ daily_lobo_1970/120 This Newspaper is brought to you for free and open access by the The aiD ly Lobo 1961 - 1970 at UNM Digital Repository. It has been accepted for inclusion in 1970 by an authorized administrator of UNM Digital Repository. For more information, please contact [email protected]. .----------------------------------~--~ weeks ago, the three biggest Quebec people obviously know only one side trade union federations-the of Greek life-the side that likes to Confederation of National Trade have a good time. There is another side. One of the major activities of Unions, the Quebec Federation of Labor, and the Quebec Teachers Greek Week is Work-Day. All of the Corporation representing a total of Greeks unite to do something helpful more than a half a million people, for the Albuquerque community-we Bema don't just send them money-we set denounced the attitude of the out and do some plain old-fashioned Bourassa government which for no work. I'm sorry to say that I've never apparent reason went from one day heard that the rest of the campus does to the next from a moderate position r~-------·-·-- ·-- -----·-· -·- .-· ,+--;....,..__,_~·-:-···""""~-·--·~-~.-._.._ anything even remotely resembling to an inexplicable attitude of total submission to the federal authorities.