With last term’s Obergefell decision, his unexpected 4–3 opinion in Fisher v. University of Texas, and his siding with the Supreme Court’s liberal bloc to strike down Texas’s HB2, the regulation of abortion clinics and abortion providers passed in 2013, Justice Anthony Kennedy’s judicia…
Month: June 2016
The Mau-Mauing of Justice Kennedy
The cowardice of Fisher II suggests that Justice Anthony Kennedy fears another confrontation by the “Wise Latina.” Justice Anthony Kennedy’s milquetoast 4-3 opinion in Fisher v. University of Texas (Fisher II) has been lambasted from all directions as “a devastating blow to the cause of a…
Broken Engagement?
In 2013, Clark Neily of the Institute for Justice wrote a book, Terms of Engagement, that called for a new model of judicial review, which he labeled “judicial engagement.” Judicial engagement would eliminate the “rational basis” standard of review in constitutional cases (which Neily der…
Broken Engagement?
Contributors to Law and Liberty have continued the lively debate between conservative proponents of “judicial restraint,” who are concerned about increased “judicial activism,” and libertarians who view the judiciary as a bulwark against majoritarianism. The general theme is a familiar on…
A Tale of Two Judges
The importance of “judicial independence” depends on the context Judges usually manage to stay out of the news, but two of them in California have been getting lots of national attention lately: U.S. District Court Judge Gonzalo Curiel in San Diego, and Santa Clara Superior Court Judg…
A Tale of Two Judges
Groupthink dictates different treatment of “judicial independence.” Judges usually manage to stay out of the news, but two of them in California have been getting lots of national attention lately: U.S. District Court Judge Gonzalo Curiel in San Diego, and Santa Clara Superior Court Judge Aar…
When Innovation Collides with Rules, Which Should Prevail?
Regulating cyber-commerce is controversial. The advent of smart phones and web-based interfaces has facilitated many new consumer services. Customers using these digital platforms often insist that existing regulatory models are outmoded and simply shouldn’t apply to new technologies. As do the…