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  • We the People - Justice Holmes: a legend before joining the Supreme Court

    David Adler|Sep 18, 2023

    Justice Oliver Wendell Holmes, Jr. once said, “If American law were to be represented by a single figure, skeptic and worshipper alike would agree without dispute that the figure could be one alone, and that one, John Marshall.” It has been justly observed that if American law were to be represented by a second figure, it would be Holmes himself, since he was more influential in shaping the agenda for the 20th century Supreme Court than any other legal figure. Dubbed the “Yankee from Olympus,” Holmes, who hailed from a prominent Boston...

  • We the People: Trump use of Scottsboro Boys case inapt and reckless

    David Adler|Sep 11, 2023

    Former President Donald Trump’s invocation of the landmark Supreme Court ruling in the Scottsboro Boys cases (1931) as justification for delaying his trial on charges related to the subversion of the 2020 federal election, was sharply rejected by the federal court as inapt and by a retired state judge as “stunningly stupid.” Trump’s lawyer had urged U.S. Federal District Judge Tanya Chutkan to set the 45th president’s trial for April 2026. In a brief submitted to the court, it was argued that an earlier date would deny Trump’s defen...

  • We the People - Justice Joseph Story: Most scholarly of justices

    David Adler|Sep 4, 2023

    Justice Joseph Story stands as a giant among those who have held a seat on the Supreme Court. Story was one of the greatest legal figures in the 19th Century, in the upper echelon of everyone’s list of outstanding judges in American history and the most scholarly of scholarly Justices. Justice Story remains the youngest person ever named to the Supreme Court. He was just 32 when President James Madison nominated him to the High Bench in 1811. At that young age, he had already served in the U.S. House of Representatives, Speaker of the...

  • We the People: Chief Justice Marshall: unpretentious, modest and humble

    David Adler|Aug 28, 2023

    Those Americans in the early years of the republic who idolized the elegant, regal and graceful bearing of English judges, could be forgiven their initial doubts about the potential of Chief Justice John Marshall to lead the Supreme Court. Although tall and erect, he was ungainly, awkward and slovenly. His hair was unkempt, his clothes frequently disheveled, especially his knee buckles, which were dangling. And there was the mud on his boots. His appearance was not indicative of a man impressed with the high station that he had achieved....

  • We the People: "John Marshall: The great Chief Justice transforms the Court"

    David Adler|Aug 21, 2023

    Two centuries after his service to the United States as Chief Justice of the Supreme Court, virtually no one doubts John Marshall’s preeminent status in America law. Justice Oliver Wendell Holmes, widely regarded as deserving of a seat on a judicial Mount Olympus, observed, “If American law were to be represented by a single figure, skeptic and worshiper alike would agree without dispute that the figure could be one alone, and that one, John Marshall. "President John Adams, who nominated Marshall to be Chief Justice, reflected years later...

  • Justice James Wilson: leading constitutional architect

    David Adler|Aug 14, 2023

    It was altogether fitting that James Wilson, second in importance only to James Madison as an architect of the Constitution, would be nominated by President George Washington to the original Supreme Court. From this position, Justice James Wilson could defend the Constitution, which he had done so much to shape and define. As it turned out, Wilson’s leading role as a delegate to the Constitutional Convention was his greatest achievement, the high point of his life. Not that such influence is without cause for celebration. Hardly. It’s rathe...

  • We the People: August 7, 2023

    David Adler|Aug 7, 2023

    John Jay: first Chief Justice, diplomat, founding era giant When the newly-elected President George Washington turned his attention to the historic opportunity of nominating citizens to fill seats on the first U.S. Supreme Court in 1789, he knew exactly whom he wanted to name the nation’s first Chief Justice: John Jay. Jay enjoyed Washington’s confidence in a way few of his contemporaries did. Apart from Chief Justice William Howard Taft, who was elected as the United States' 27th president before ascending to the High Bench, nobody has...

  • We the People: July 31, 2023

    David Adler|Jul 31, 2023

    Judicial profiles to better understand the Supreme Court We citizens know a lot about our presidents – their background, philosophy and character – and sometimes more than we care to know. The same is true of our congressional representatives. By comparison, we know relatively little about our Supreme Court Justices. This needs to change. A better, indeed, more fully-informed historic understanding of the views, experiences, temperament and character of the men and women that have served on the nation’s High Bench will, in the name of...

  • We the People: July 24, 2023

    David Adler|Jul 24, 2023

    “Constitution does not shield presidents from defamation suits” The Justice Department’s announcement this week that the Constitution does not shield presidents from civil lawsuits stemming from a president’s defamatory remarks represents two important victories – one for constitutionally-limited government and the other for individuals who could be destroyed by the words of the nation’s chief executive. The DOJ’s declaration clarified its position on the broad question of immunity for former President Donald Trump against a...

  • "Declaration of Independence: advancing American ideals"

    David Adler|Jul 17, 2023

    The Declaration of Independence – its words, elements and ramifications – remains profoundly relevant in America. As the founding document of the world’s longest running democracy, and the ultimate expression of the ideas, values and principles that culminated in the American Revolution, it certainly deserves a special place in our national consciousness, debates, policies and laws. The celebration of the Declaration, from coast to coast on July 4, unites the nation in civic idealism in a way that no other national holiday can. Students...

  • "Court rejects radical legislative theory, defends democracy"

    David Adler|Jul 10, 2023

    It is difficult to overestimate the importance of the U.S. Supreme Court’s repudiation of the “independent state legislature” theory in Harper v. Moore. The widely-admired conservative judge, J. Michael Luttig, called it “the most important case, since the founding, for American democracy.” Indeed, nothing less than the preservation of judicial review, checks and balances and the vital role of courts in defending the constitutional order were at stake in this case. In fine, the North Carolina legislature boldly asserted that its...

  • "Trump trial challenges American democracy and rule of law"

    David Adler|Jul 3, 2023

    A reader’s question has captured the history-making nature of the forthcoming trial of former President Donald Trump. “What are the implications of the trial for the Constitution, presidential power and the rule of law?” The gravity of the nation’s first federal indictment of a former president cannot be overestimated. The rule of law, constitutional government, presidential power and, we should add, American Democracy, are on trial. Defenders of President Trump, like the former chief executive himself, decry the indictment as part of...

  • "Trump trial tests the Framers' Constitution and the rule of law"

    David Adler|Jun 26, 2023

    “What are the implications of the trial of Donald Trump for the Constitution, presidential power and the rule of law?” a reader asks, adding another important question: “Did the Framers of the Constitution adequately limit presidential power?” These enormously important questions have been and will continue to be discussed and debated for months and years to come, and they require more than a single column to offer a summary explanation. We focus this week on the adequacy of constitutional limitations, turning next week to the...

  • We the People: June 19, 2023

    David Adler|Jun 19, 2023

    Why Congress may impose ethics code on Supreme Court justices Rising calls for Congress to enact new ethical standards for the Supreme Court, sparked by recent revelations that Justice Clarence Thomas failed to disclose financial transactions, have generated a debate on whether the legislative branch possesses constitutional authority to impose a code of conduct on the judiciary. The divide is familiar. With some prominent exceptions, Republicans object to the creation of an ethics code, invoking separation of powers concerns and asserting...

  • "Reader asks: How do we rein in Supreme Court justices?"

    David Adler|Jun 12, 2023

    A reader recently wrote to ask a question on the minds of many Americans: “If the courts check the other branches of government, who checks the courts?” The reader continued: “Since the Supreme Court enforces constitutional limits on the presidency and Congress through the exercise of judicial review, who can restrain the Court, particularly at a time when public opinion registers strong opposition to the Court’s interpretation of the Constitution?” This good question has been raised at other junctures in American history when the...

  • Is posting the Ten Commandments in schools constitutional?

    David Adler|Jun 5, 2023

    The continued revival of interest among state legislatures in posting the Ten Commandments in public schools may present to the U.S. Supreme Court an opportunity to reverse yet another decades- old, landmark precedent, this time one that prohibits such displays on grounds that they promote religion in violation of the First Amendment’s establishment clause. Although time expired in the legislative session before the Texas House of Representatives could approve a Senate bill to post the Ten Commandments in classrooms, the Longhorn State and se...

  • We the People: May 29, 2023

    David Adler|May 29, 2023

    “Presidential power, the 14th Amendment and the public debt” The debt ceiling standoff between President Joe Biden and House Republicans has illuminated the public debt clause of the 14th Amendment, one of the most obscure provisions in the Constitution and one seldom discussed since the Civil War. Its invocation may be the key to avoiding economic catastrophe. Section 4 of the 14th Amendment provides: “The validity of the public debt, authorized by law ... shall not be questioned.” Legal scholars and historians agree that the clause...

  • "In defense of clergy, the court strikes blow for religious liberty"

    David Adler|May 22, 2023

    In 1977, in McDaniel v. Paty, the U.S. Supreme Court delivered a landmark ruling that held unconstitutional one of the last anticlerical remnants of the founding era, a 1796 Tennessee law that prohibited ministers and priests from holding public office. The statute, drafted at the dawn of the republic in the name of separation of church and state, reflected a widespread legal policy among the early states that sought to curb the outsized role that clergy played in English public affairs and the colonies, in which laws respecting establishments...

  • Church and state: The court prohibits religious tests for office

    David Adler|May 15, 2023

    Delegates to the Constitutional Convention, as part of their commitment to separating church from state, unanimously adopted a clause in Article VI, declaring that “no religious Test shall ever be required as a qualification to any Office or public Trust under the United States.” In their adoption of the oath clause, the Framers demonstrated a liberality of spirit because all of delegates, except those from New York and Virginia, came from states that discriminated against some religious denominations by imposing some religious test as a...

  • We the People: The Supreme Court's first big decision on state powers

    David Adler|May 8, 2023

     In February 1793, in Chisholm v. Georgia, the U.S. Supreme Court, fully mindful of the evolving political and legal tensions surrounding the nature of the nation-state relationship, rendered its first important decision on the scope of state authority.  Chisholm, a citizen of South Carolina, sued the state of Georgia for failure to pay him for goods delivered to the state. In short, Chisholm was trying to collect a debt. But the “great cause” in this suit, as Justice James Iredell characterized it, presented the critical issue of...

  • We the People: Justin Chase's impeachment and judicial independence

    David Adler|May 1, 2023

    In its first and only impeachment trial of a Supreme Court justice, the U.S. Senate in 1805 acquitted Samuel Chase of charges against him, a historic decision that raises profoundly important questions about judicial independence and accountability and illuminates the challenges facing Justice Clarence Thomas. American politics, fraught with heated partisan divisions, had reached a fever pitch in the early 19th century when Justice Chase was brought before the bar of the Senate. Thomas Jefferson, leader of the Republicans, had defeated the...

  • We the People: April 24, 2023

    David Adler|Apr 24, 2023

    Applying impeachment clause to Supreme Court justices National conversations surrounding the remote possibility of impeaching Justice Clarence Thomas for accepting – and failing to report – lavish gifts from a GOP billionaire with interests before the Supreme Court, have prompted important questions from readers about the application of the impeachment clause to Supreme Court justices. In a nutshell, curious readers wonder whether justices, and federal judges, are subject to impeachment? If so, what are the criteria? Have we impeached a...

  • Trump's case: When novel theories become legal principles

    David Adler|Apr 17, 2023

    Defendant Donald J. Trump and his supporters have assailed the 34-count felony indictment of the former president brought by the Manhattan District Attorney as resting on a flimsy, untested and novel legal theory that converts Trump’s alleged misdemeanors to felonies. While a jury of President Trump’s peers will decide his fate, assuming the case goes to trial, it turns out that the theory of the case underlying the 34 felony charges brought by the Manhattan district attorney, Alvin Bragg, may not be novel at all. New York legal experts...

  • U. of Wyoming Transgender lawsuit: Who is a woman?

    David Adler|Apr 10, 2023

    A federal lawsuit reflective of the nationwide culture wars is challenging the right of a University of Wyoming sorority to induct a transgender woman, raising questions of central importance to the First Amendment Right of freedom of association and Title VII of the 1964 Civil Rights Act. The issues in the suit are likely to be replicated across the nation as the judicial system wrestles with legislative efforts to regulate, distinguish and deny opportunities and rights of the LGBTQ community. Seven past and present members have filed suit in...

  • We the People: Vulnerable to indictment, Trump's cases subject to the law

    David Adler|Apr 3, 2023

    Former President Donald Trump has said he expects to be indicted by a Manhattan grand jury any day now. Although widely anticipated, there is no certainty that he will be indicted by grand jurors in New York or, for that matter, by citizens serving on grand juries in Washington or Atlanta, led by prosecutors examining, respectively, his potential obstruction of justice of a federal investigation involving the “Mar-a-Lago Papers” or his effort to overturn the results of the 2020 election in Georgia. Trump’s supporters in Congress and...

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