Like unruly schoolchildren using the presence of a substitute teacher as an opportunity to misbehave, in Veasey v. Abbott, the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, has sent the jurisprudential equivalent of a spitball at the U.S. Supreme Court knowing that the deadlocked …

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…

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…

Readers who have been following my Bench Memos posts regarding transgender prisoner rights, or my recent article in The American Spectator, “The Delusion of Transgender Prisoner Rights,” may think my “canary in the coal mine” rhetoric was hyperbolic. No, it turns out to be understated. In…

Judge Stephen Reinhardt, of the U.S. Court of Appeals for the Ninth Circuit, has been refining his craft as a liberal activist judge for 35 years, and in that time has become the indubitable master. For a budding activist judge, there is no better mentor. And in Judge Jon Tigar, of the U.S. Distr…

My last post ended with a glancing reference to Joseph Schumpeter, and a teaser for “further thoughts” regarding how a free people, living in the greatest country in human history, came to relinquish their sovereignty to unelected, black-robed solons. Schumpeter (1883-1950) was an Austrian …

Those of us who believe in the rule of law and limited government are understandably flummoxed by the conclusion of the Supreme Court’s 2014-15 term: in rapid succession, and generally by narrow margins, the Court “fixed” an internal defect in the ObamaCare statute (King v. Burwell); recogn…

A San Francisco disability discrimination case threatens to hobble law enforcement nationwide. The Americans with Disabilities Act (ADA), passed by Congress in 1990, was the product of good intentions. Its proponents—President George H.W. Bush chief among them—wanted to eliminate arbitrary ba…

When identity politics intersect with liberal judicial activism, expect bizarre results What looked at first like a belated April Fool’s Day joke may turn out to be a landmark ruling in Eighth Amendment jurisprudence. On April 2, a federal district court judge in San Francisco ruled that a conv…

A Court Finds a Salesman’s Contract “Unconscionable” The great jurist Oliver Wendell Holmes once said, speaking about judicial decisions, that hard cases make bad law.[1] This may often be true, but that is not the only explanation for bad judicial decisions. There are other rea…