Affirmative Action: Unequal Protection?

The Economist has come out against race-based affirmative action in the United States, a surprising (to me) move given the magazine's socially left-of-center outlook (e.g., for legalizing drugs and banning handguns). Indeed, the way in which affirmative action as currently practiced discriminates against Asians even more than against whites is difficult to justify. (I argued … Continue reading Affirmative Action: Unequal Protection?

Obamacare Upheld: Thank Goodness!

The Supreme Court's decision to uphold the Affordable Care Act (don't call it "Obamacare"!) gives me a great sigh of relief. Although I was one of those who thought it well-nigh impossible to be overturned when the lawsuits were initially filed, over the last several months I began to think that there was actually a … Continue reading Obamacare Upheld: Thank Goodness!

Why “Vote GOP for the Court” Cuts No Ice with Me

I've never voted for a Democrat or Republican for president at a general election. I've always voted for a Libertarian (in 2008 I voted for George Phillies, who was on the ballot as a Libertarian in New Hampshire in addition to the official candidate, Bob Barr), and I've never had reason to regret my vote. … Continue reading Why “Vote GOP for the Court” Cuts No Ice with Me

Barnett on the Supreme Court on the Individual Mandate

While my fellow Pilei debate the role that moderate Republicans can play in a future return to fiscal sobriety, libertarian law prof Randy Barnett considers whether, with respect to the PPACA, it even matters. What are the chances that the Supreme Court strikes down the individual mandate, including potentially the entire bill, which lacks a … Continue reading Barnett on the Supreme Court on the Individual Mandate

Coercion as freedom

In its usual flurry of end-of-term decisions, the Supreme Court issued an important opinion affecting liberty on college campuses (or what's left of it).  The opinion concerned the lawsuit by a Christian group at the Hastings College of Law, a public school affiliated with the University of California.  The Christian group was denied the right … Continue reading Coercion as freedom

What We Can Infer about Kagan

My Pileus colleague Marcus Cole argued a few weeks ago that conservatives and libertarians should not be so unhappy with Supreme Court Justice nominee Elena Kagan, since it could have been "much worse." With a left-liberal Democrat in the White House and a Congress controlled by the Democrats, who knows, Marcus asked, what enormity we could … Continue reading What We Can Infer about Kagan

Kagan Could Be Much Worse

Conservative and libertarian opposition to the appointment of Solicitor General and Supreme Court nominee Elena Kagan has been lackluster at best, and for good reason: President Obama’s choice to fill the seat of retiring Justice John Paul Stevens could be much worse. Indeed, there is some reason to believe that conservatives ought to breathe a … Continue reading Kagan Could Be Much Worse

Souter’s Lame-Brained Judicial Philosophy

Am I the only one perplexed by the embarrassingly lavish praise heaped upon David Souter's Harvard commencement address by left-liberal commentators? In bashing the notion that judges should rule on the basis of "fair reading" of the law, Souter tries this mind-bogglingly inane reductio ad absurdum: For those whose exclusive norm for constitutional judging is … Continue reading Souter’s Lame-Brained Judicial Philosophy

Don’t Ask Don’t Tell…Don’t Confirm?

The rumor mill is on fire over the nomination of Elena Kagan (what do we know of her sexual preferences?  Would she be the first gay Supreme? If so, will she “out” herself in the Senate hearings or once she puts on the robe?). There is an interesting piece on the Moderate Voice by Elijah … Continue reading Don’t Ask Don’t Tell…Don’t Confirm?

So what is second order?

It has been widely reported that in 2003, Elena Kagan wrote that the "Don't Ask, Don't Tell" policy regarding gays in the military was "a moral injustice of the first order." The first order?  Really?  Surely there are some implicit qualifiers in there.  When you consider genocide, mass rape, sex trafficking, murder, slavery, Jim Crow, … Continue reading So what is second order?

Is she qualified?

My question is not whether Elena Kagan is qualified for the Court.  My question is whether she is qualified for tenure at a major law school.  When she was made a tenured professor at the University of Chicago, she had (as far as I can tell) only 3 5 publications (see correction below).  One of … Continue reading Is she qualified?

Is Kagan the Harriet Miers of the Obama Administration?

Glenn Greenwald more or less says yes: a blank slate with unclear qualifications. Over at Volokh, Jonathan Adler gives some reasons why Elena Kagan might end up with a tougher confirmation fight than a clear liberal like Diane Wood would have. Note, however, that Adler's and Greenwald's reasons are inconsistent. Adler thinks that Kagan is … Continue reading Is Kagan the Harriet Miers of the Obama Administration?

Is the Personal Health Insurance Mandate Constitutional?

Randy Barnett at the Volokh Conspiracy has an excellent post on whether the personal health insurance mandate is constitutional in any of three senses of the term.  His last point is dead on - if we don't take the Constitution or the Court's past rulings seriously when thinking about what the Court will do, we … Continue reading Is the Personal Health Insurance Mandate Constitutional?

The Case for Judicial Activism

George Will's column today in the Washington Post on Supreme Court nominees raises the question of whether conservatives should favor or oppose "judicial activism."  Will argues that "The proper question is: Will the nominee be actively enough engaged in protecting liberty from depredations perpetrated by popular sovereignty?"  Fortunately, classical liberals have been interested in just this … Continue reading The Case for Judicial Activism