The University of California, Berkeley emerged again as a bastion of protest against perceived fascism. Alt-Right leader Milo Yiannopoulos was invited by the Berkeley College Republicans to speak on the campus, only to be blocked by protestors and violent rioters. President Trump, in true late-night form, tweeted: No free speech, ‘NO FEDERAL FUNDS?’
I’m no expert in dignity or liberty. Listening to yesterday’s arguments I frankly got confused over just where and how marriage enters into the Fourteenth Amendment and screams for resolution by the Supremes. Nationalize me, please, appears to be the new form of constitutional argument. And so now, apparently, my first son may very well be permitted to marry my second son or daughter or both, or whatever. But I what I really love are appellate lawyers’ maneuvers, such as this: Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax exempt status…
The Solicitor General is the Executive Branch’s officer in charge of litigation before the Supreme Court. The incumbent, Donald Verrilli, recently gave a speech in which he reflected on the difficulty of his post. “We’re at a time when a majority of the Supreme Court has a strong ideological perspective different from the president,” he said, adding that, “aside from the New Deal, this is probably the greatest amount of friction between the executive and judicial branches.”
The Supreme Court justices—all of them—believe they are applying the law in deciding cases, not indulging their political ideology. Even if Verrilli thinks otherwise and believes judges are essentially politicians in robes, it is foolish for the Solicitor General to impugn the self-conception of the justices he must persuade. .
And the claim that there are more fundamental differences between the Obama administration and any other Court except in the New Deal era is wrong. Begin at the beginning: the Jefferson administration so strongly opposed the review of its executive acts by the Supreme Court that it declined to participate in Marbury v. Madison, raising the prospect that it would not comply with an adverse decision.