December 2017

  • December 11, 2017
    Guest Post

    by Andrew Wright, Associate Professor, Savannah Law School

    Michael Flynn is cooperating with Special Counsel Robert Mueller’s investigation. The plea agreement requires that Flynn “shall cooperate fully, truthfully, completely, and forthrightly with this Office and other Federal, state, and local law enforcement authorities identified by this Office.” Flynn’s statement of the offense ominously announces that “[t]hese facts do not constitute all of the facts known to the parties concerning the charged offense.” There is some debate about whether this agreement signals that Flynn has significant incriminating information about senior-most White House advisors, or President Trump himself. Only Flynn, Mueller, and the others whom Flynn might implicate on matters related to the investigation are in a position to know the quality of his cooperation.

    But what if President Trump started using his pardon power to end the Russia investigation? What would be the effect, if any, if President Trump pardoned Flynn now? What about pardons of others that might be implicated by Flynn in his cooperation? Pardons raise a number of important questions after Flynn’s plea.

  • December 8, 2017
    Guest Post

    by Steven Kalar, Federal Public Defender Northern District of California

    *This piece was originally posted by the Ninth Circuit Blog.

    I’m invoking author’s privilege to pay tribute to Judge Harry Pregerson, for whom I clerked. He passed away last week.

    At the memorial service on Friday eloquent speakers struggled with their tasks before a huge (and teary) crowd. Think of that that trope of blind men describing their parts of an elephant – it was a life far too big to take in with any one grab. I’ll therefore mull one small corner of the Pregerson pachyderm: Harry the Judge.

  • December 8, 2017
    Guest Post

    by Douglas NeJaime, Professor of Law, Yale Law School and Reva Siegel, Nicholas deB. Katzenbach Professor of Law, Yale Law School

    *This piece was originally published on Take Care Blog.

    Masterpiece Cakeshop v. Colorado Civil Rights Commission is framed narrowly—as a case about whether making a wedding cake is expressive conduct or whether religious individuals should be exempted from laws protecting same-sex couples. But this narrow view of the case misses its real stakes. The Alliance Defending Freedom (ADF, formerly Alliance Defense Fund), which represents Masterpiece Cakeshop, is driving the litigation and many similar cases around the country. ADF is not interested in a narrow resolution to a narrow question; rather, ADF is taking aim at the very legitimacy of LGBT people and legal protections for them.

  • December 7, 2017
    Guest Post

    by Senator Patrick Leahy (D-Vt.)

    As the longest-serving member of the United States Senate and a former chairman of the Senate Judiciary Committee, I feel obligated to speak up about the steady erosion of the Judiciary Committee’s norms and traditions. I am deeply troubled that Chairman Chuck Grassley (R-Iowa) has decided to reverse his blue slip policy.  

    The “blue slip” is a century-old Senate tradition that allows senators the courtesy of approving a nominee to the federal bench in their home state. There will surely be an ongoing discussion about the history of the blue slip tradition over the years.  Not all chairmen have adhered to the tradition in the same way. But one thing is beyond dispute: Casting aside blue slips based on how the partisan winds blow will damage the integrity of the Judiciary Committee’s judicial confirmation process.

    When I was chairman of the Judiciary Committee, under both the Bush and Obama administrations, not a single judicial nominee received a hearing without first receiving both home state senators’ positive blue slips.  Regardless of who was in the Oval Office, I defended blue slips because I firmly believe in their constitutional importance—to give meaning to the constitutional requirement of “advice and consent.” 

  • December 6, 2017
    Guest Post

    by Steven D. Schwinn, Professor of Law, the John Marshall Law School

    *Read the full Supreme Court Review here.

    We are thrilled to bring you this inaugural edition of the American Constitution Society Supreme Court Term Review. In these pages, you’ll find a series of outstanding critical essays, penned by the nation’s top legal scholars and practitioners, on the most important cases and themes from the Supreme Court’s October 2016 Term. You’ll also find a splendid Foreword, written by Dean Erwin Chemerinsky, that puts these cases and themes in the broader context of key happenings and trends at the Court.

    In the many panels and reviews of the Court’s October 2016 Term, we sometimes heard that the Term was unremarkable, with no Big Blockbuster cases, no significant changes in the law, and no notable impacts on major political issues—at least as compared to so many other recent Terms. Many said that this was the direct result of an eight-member, equally divided Bench for most of the Term. That is: the Court was reluctant to take on major controversial cases without a full staffing.