None of the constitutional provisions we discuss today come from the original text. Each of the cases below concerns an amendment. I've set the first amendment controversies aside for separate treatment in the final installment. Today, then, we discuss the right to bear arms, unreasonable search and seizure, the right of confrontation, effective assistance of counsel, and the position of the people of Puerto Rico within the United States vis-a-vis the 5th amendment, drawing on language from the 14th Yesterday, we found that on a range of matters, the Supreme Court has not been breaking down on the "3 blues versus 6 reds" pattern one might expect. Today we will discover though that, on another range of matters, it has. Second amendment, the New York decision Bruen was 6 to 3. The usual suspects, on each side. This is how that looks in the case reports: THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, GORSUCH, KAVANAUGH, and BA...
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This is the third part in our series of blog posts about the latest term of the Supreme Court. We'll get to some basic structural stuff in this post, with the question of non-state territories, over which the national government is often said to have a direct control. Does it? With regard to Puerto Rico, and possibly the District of Columbia: what does that entail? Obviously there are local authorities for both of those places -- heck there are also park rangers for national parks who have various sorts of discretion. But this isn't the federal layering of sovereigns we've heard about, is it? The Appointments Clause I'm looking at a clause of the constitution that seldom makes the headlines, but that is nonetheless of great importance within the overall system. Article II, sect. 2, clause 2, the "appointments clause." It says that that president shall nominate, and with the advice and consent of the Senate he shall appoint, all "officers of the Un...
The court this term went in different directions on the two sorts of gerrymandering. It may have finally closed out its long history of fiddling around the matter of "partisan gerrymandering," by deciding that it doesn't possess and cannot fashion the tools to deal with that. I'm reminded somewhat of the "shopping malls as public forums" cases in the 1960s and into the '70s. The idea was that malls, though privately owned, were functionally public places, so people have first amendment rights there. Even the Warren Court was hesitant about this, but the hesitancy seemed to make the subject cutting edge/intellectually stimulating. Eventually, though, the Burger court decided the idea had been a bad one, and backed far away. The Roberts court has now done much the same with partisan gerrymandering in Rucho v. Common Cause. But a couple of weeks earlier, the court had decided Virginia House of Delegates v Bethune, a case that seems to indicate ...
Another term of the U.S. Supreme Court has come and gone and, once again as in years past, I’d like to say something about it in this blog. Since it’s my blog, I hereby award myself that wish, over the course of this and the next three posts. I don’t plan to discuss Jevic Holding . That was a very important decision, re-affirming ideas foundational to bankruptcy law, but … I’ve already taken a couple of cracks at it in this blog, and would have nothing new to say now. I was tempted, in my earliest outlining of this discussion, by the idea of discussing at some length recent events in the public finance and politics of Puerto Rico. These events (including a very strikingly pro- statehood referendum result) in large part follow from the Supreme Court’s decisions on Puerto Rican matters last term. But I’ll save myself some time and give the matter the ‘elevator’ treatment: subsequent events have been entirely consistent with my treatment of those decisions at the time. ...
Has the headline of this post put you to sleep already? If so, enjoy the zees. If not, you may be interested in this link: from Huffington Post. That represents where discussion stood as of July 1, anyway. As it happens, July 1 was the day Puerto Rico defaulted on its general obligation bonds. The last-minute Congressional action in contemplation of a restructuring of those debts was too last minute to prevent this. Given this coincidence of timing: what does the platform say about Puerto Rico? It gets a paragraph at the bottom of p. 16, after (and longer than) a separate graf on the "people of the territories" generally. The paragraph on Puerto Rico takes while to get around to the debt issue, but it ends with that: "Finally, we believe that Washington must respect Puerto Rico’s local self-government as Congress and the Executive Branch work to provide the necessary tools and aid that Puerto Rico needs to restructure its debt so that it can get on a path...