Category: Off Topic

Should Justice Barrett Recuse Herself from Election Cases?

by · Nov 2, 2020 12:08 pm

This is not about criminal law, but might prove to be of considerable interest to readers in coming weeks.  It may turn out that tomorrow’s election will come down to a few closely contested key states (e.g., Pennsylvania, Wisconsin, Michigan, Arizona), and that, in those states, there will be heated disputes about ballot counting and other kinds of alleged election irregularities.  These could wind up in the Supreme Court.  With Chief Justice Roberts sometimes joining the liberals, the result could turn on whether Justice Barrett participates in the decision.  The question whether she should is thoughtfully addressed in this balanced article by Prof. Jonathan Adler of Case Western Reserve.  (Hint:  There is a reasonable argument that she should recuse herself but an at least equally strong argument that she shouldn’t.  Although she alone makes the call, she would very likely consult with her fellow Justices in making her decision).

In Memoriam

by · May 25, 2020 7:57 am

Let us all take a moment today to remember and honor those who gave all in defense of freedom.

Who You Gonna Appeal To?

by · Feb 24, 2020 10:44 am

When the legislative or executive branches of government violate the Constitution, we generally look to the courts for correction. But where do you go when a rule of the Supreme Court itself violates the Constitution?

The Constitution gives the Supreme Court original jurisdiction over, among other cases, suits between States. See Art. III, § 2, cl. 2. Congress has made that jurisdiction exclusive, i.e., a State can’t file its suit against another State anywhere else. See 28 U.S.C. § 1251(a). Yet the Supreme Court’s Rule 17 requires States to ask permission to file an original suit there. Is that constitutional? I have long believed it is not, and today I have some distinguished company. But where would an aggrieved State appeal this question?

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Reestablishing Deterrence

by · Jan 7, 2020 11:01 am

The Suleimani matter is one of military and foreign policy, not criminal justice, so this is somewhat off-topic. Even so, the concept of deterrence is common to these areas. Lara Seligman has this interview in Foreign Policy with Gen. David Petraeus (Ret.) former commander of U.S. forces in Iraq and Afghanistan and former Director of Central Intelligence.

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