Bench Memos

This Day in Liberal Judicial Activism—June 28

2000—In sharp defiance of precedent governing facial challenges, the Supreme Court, by a vote of 5 to 4, rules in Stenberg v. Carhart that Nebraska’s ban on partial-birth abortion is unconstitutional. (As discussed here, the Court’s 2007 ruling on the federal partial-birth abortion ban in Gonzales v. Carhart corrects Stenberg’s error on the standard for facial challenges.)

2000—When does a criminal law setting forth a content-based prohibition on speech not violate the Supreme Court’s First Amendment precedents? When it suppresses speech by opponents of abortion. As Justice Scalia states in dissent from the Court’s ruling in Hill v. Colorado, “like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts.”

2004—In Rasul v. Bush, a majority of the Supreme Court rules that the federal habeas statute—which authorizes federal district courts, “within their respective jurisdictions,” to entertain habeas applications by persons claiming to be held in custody in violation of the laws of the United States—may properly be invoked by aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This “judicial adventurism of the worst sort” contradicts a longstanding precedent and, as Justice Scalia points out in dissent, has “breathtaking” consequences, as it permits aliens captured in foreign theaters of active combat to bring habeas petitions against the Secretary of Defense and thus enables those aliens to “forc[e] the courts to oversee one aspect of the Executive’s conduct of a foreign war.”

Most Popular

Elections

Late Campaign Stops Don’t Seem to Do Much

Growing up in New Jersey, we called nights like tonight – where there were expectations for hooliganism -- vandalism, breaking windows, and perhaps even arson, “Mischief Night.” In Detroit, they called it “Devil’s Night.” In 2020, Americans just call it “Friday.” On the menu today: wondering ... Read More
Elections

Late Campaign Stops Don’t Seem to Do Much

Growing up in New Jersey, we called nights like tonight – where there were expectations for hooliganism -- vandalism, breaking windows, and perhaps even arson, “Mischief Night.” In Detroit, they called it “Devil’s Night.” In 2020, Americans just call it “Friday.” On the menu today: wondering ... Read More

Searching for a Sign

I’ve been waiting for almost six months to see a Biden-Harris yard sign in my neighborhood. Finally one -- just one -- appeared about two weeks ago. It is large and proud. The homeowners even equipped it with a spotlight, so that it is visible at night. I’m surprised, because liberal political yard signs ... Read More

Searching for a Sign

I’ve been waiting for almost six months to see a Biden-Harris yard sign in my neighborhood. Finally one -- just one -- appeared about two weeks ago. It is large and proud. The homeowners even equipped it with a spotlight, so that it is visible at night. I’m surprised, because liberal political yard signs ... Read More
White House

Hell, Yes

Editor’s Note: If you would like to read more pros and cons on voting for President Trump, further essays on the subject, each from a different perspective, can be found here, here, here, here, and here. These articles, and the one below, reflect the views of the individual authors, not of the National ... Read More
White House

Hell, Yes

Editor’s Note: If you would like to read more pros and cons on voting for President Trump, further essays on the subject, each from a different perspective, can be found here, here, here, here, and here. These articles, and the one below, reflect the views of the individual authors, not of the National ... Read More
Media

About That ‘Uncoverable’ Biden Story

Journalists claim they can’t cover the New York Post’s Hunter Biden email scoop because the underlying evidence has yet to been verified. Also, they won’t look for any verifying evidence because there isn’t enough evidence. It’s quite the conundrum. Because other than the now-corroborated emails, ... Read More
Media

About That ‘Uncoverable’ Biden Story

Journalists claim they can’t cover the New York Post’s Hunter Biden email scoop because the underlying evidence has yet to been verified. Also, they won’t look for any verifying evidence because there isn’t enough evidence. It’s quite the conundrum. Because other than the now-corroborated emails, ... Read More

Another Pollster Sees a Trump Win

The Trafalgar Group’s Robert Cahaly is an outlier among pollsters in that he thinks President Trump will carry Michigan, Pennsylvania, or both, and hence be reelected with roughly 280 electoral votes. (I explained his thinking here.) Last week another pollster, Jim Lee of Susquehanna Polling and Research, ... Read More

Another Pollster Sees a Trump Win

The Trafalgar Group’s Robert Cahaly is an outlier among pollsters in that he thinks President Trump will carry Michigan, Pennsylvania, or both, and hence be reelected with roughly 280 electoral votes. (I explained his thinking here.) Last week another pollster, Jim Lee of Susquehanna Polling and Research, ... Read More
Economics

Dire Rates: The Biden Tax Plan

Despite the whopping 33.1 percent increase in third-quarter GDP, the economy is on extremely thin ice. GDP is currently about 3.5 percent below where it started in January, a drop that, if it happened all of a sudden, would signal the terrifying start of a deep recession. To be sure, policymakers should be ... Read More
Economics

Dire Rates: The Biden Tax Plan

Despite the whopping 33.1 percent increase in third-quarter GDP, the economy is on extremely thin ice. GDP is currently about 3.5 percent below where it started in January, a drop that, if it happened all of a sudden, would signal the terrifying start of a deep recession. To be sure, policymakers should be ... Read More