Religion and the lawbreaking Supreme Court | The Hill – Column

Lawyers sometimes irritate other people with their persnicketiness about technicalities.  But scrupulousness about legal detail is what gives courts their authority. It is big news if the Supreme Court ignores statutory limits on its own power. Since Justice Amy Coney Barrett replaced Ruth Bader Ginsburg, the Court has repeatedly issued orders without legal authorization. This was particularly…

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The phony rape exception to abortion bans | The Hill – Column

  Now that the Supreme Court permits states to outlaw abortion, Republican state legislators are bitterly split over whether abortion bans should include exceptions in cases of rape. This is a pointless political fight. Laws forbidding abortion often force women to bear their rapists’ babies. If you don’t want to do that, don’t support abortion prohibitions. For many…

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The Supreme Court’s squandered opportunity | The Hill – Column

  In 2022 the Supreme Court threw away an opportunity to ameliorate the toxic polarization of America. After the unseemly gamesmanship that led to the appointments of Neil Gorsuch and Amy Coney Barrett, the new conservative majority should have looked for opportunities to, as Barrett said shortly after her confirmation, “convince you that this court is not comprised of a bunch…

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How the Respect for Marriage Act will heal of one of America’s most toxic divisions | The Hill – Column

The Respect for Marriage Act (RFMA), which codifies protection for same-sex marriage, is about to be signed by President Biden. It protects hundreds of thousands of families, but it does more than that. It is a step away from America’s political polarization. That’s not just because Congress managed to get something important done on a bipartisan…

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With conservative Supreme Court, religion always wins | The Hill – Column

These days, the Supreme Court presents itself as faithfully following the law, while it does pretty much whatever it wants. For example, it invokes tradition as a constraint on its discretion, while manipulating its meaning to avoid enforcing constitutional provisions it doesn’t like — such as the Establishment Clause. In Kennedy v. Bremerton, the Court recently overruled…

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The continuing, destructive power of libertarianism | The Hill – Column

At a recent conference on conservative philosophy, I told another professor that I’d just written a critical history of libertarianism. “You’re too late,” he said. “After Trump, libertarianism is dead in American politics.” Would that it were so. The Libertarian Party is indeed in deep trouble, torn apart by factionalism. Despite the increasing ubiquity of communitarian, nationalist rhetoric, however,…

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Elena Kagan and the Supreme Not-A-Court | The Hill Column

  The Supreme Court is supposed to decide questions based on the law, not public opinion. Yet its power consists solely in its ability to issue pieces of paper, which have no effect unless other officials, the ones with guns and money, respect it and are willing to enforce its decisions. Justice Elena Kagan and Chief Justice John…

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Religion and Samuel Alito’s time bomb | The Hill Column

  An irresponsible sentence that Justice Samuel Alito wrote eight years ago may now excuse religious people from nearly every legal obligation they have, so long as a hypothetical, nonexistent government program could substitute for it. That became clear this week when Judge Reed O’Connor declared in Braidwood Management v. Becerra that employers with religious objections may offer health plans…

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The abortion emergency in the federal courts | The Hill Column

  It is now notorious that the criminalization of abortion, in the wake of the Supreme Court’s overruling of Roe v. Wade, doesn’t do much to lower the abortion rate but has had devastating effects on the ability of doctors to treat pregnancies that go wrong.  Horror stories accumulate. Opponents of abortion have claimed that the press has exaggerated the…

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