Free Republic

Former Supreme Court Justice Stephen Breyer criticized his colleagues on the high court over their interpretation of the Constitution. The former justice, who retired in 2022, is set to release a book titled Reading the Constitution: Why I Chose Pragmatism, Not Textualism, laying out an argument critiquing the methods used by many Republican-appointed justices to interpret the Constitution. “Recently, major cases have come before the court while several new justices have spent only two or three years at the court,” Breyer said in the book, according to the New York Times. “Major changes take time, and there are many years...

The claim that an undesired pregnancy is slavery implies that our very existence is a form of slavery or imprisonment.Motherhood isn’t slavery. This ought to be obvious, but after the Dobbs decision overturning Roe v. Wade, the left has pushed a variety of bizarre legal theories as they scramble to ensure that elective abortions continue unabated across the country. They just got a federal judge to consider one of the looniest legal theories — the sort of theory that shouldn’t be heard outside of a mediocre law professor’s late-night conversations with her cats after hitting the wine box a bit...

This decision, and the majority who wrote it, represents the end of something. It represents the end of the conservative legal movement, or the conservative legal project, as we know it. After Bostock, that effort, as it has existed up to now, is over. I say this because if textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach such a decision—an outcome that fundamentally changes the scope and meaning and application of statutory law—then textualism and originalism and all of those phrases don’t mean much at all. And if those are...

Supreme Court Justice Elena Kagan said Monday the high court has adopted much of the late Justice Antonin Scalia's textualist judicial reasoning. Kagan was speaking to an audience at the Chicago-Kent College of Law when she said that Scalia's judicial reasoning has come to dominate the court, the Washington Examiner reported. Scalia, who sat on the Supreme Court for 30 years before his death in 2016, was a proponent of textualism, a theory in which the interpretation of law is based on the meaning of legal text as it would be commonly understood at the time of its passage, and...

Abstract: Indiana imposes certain eligibility qualifications on candidates for public office, and provides a statutory cause of action for losing candidates in an election to challenge the results based on the eligibility of the winner. Following the 2007 mayoral election in Terre Haute, Ind., the losing candidate argued that the winner fell afoul of the federal Hatch Act, which is an explicit disqualification under Indiana law. The trial court concluded that the winning candidate did violate the Hatch Act, but through an interesting feat of jurisprudential jujitsu held that the disqualification didn't matter because the election was over. The court...

Give Supreme Court Justice Stephen Breyer his due. With the publication of his new book "Active Liberty," he enthusiastically embraces a mea culpa approach to allegations that Supreme Court justices invent, recreate, and expand constitutional principles as they please. Viewed as a response to Justice Antonin Scalia's "A Matter of Interpretation," Breyer’s book, openly advocates for the notion that U.S. constitutional law is whatever a majority of Supreme Court justices wishes...