Justice Barrett Makes Her Case

Four days before the presidential election in November 2016, the Supreme Court held a beautiful ceremony in memory of Justice Antonin Scalia. The event honored Scalia the man and Scalia the jurist. But for me a deep sadness pervaded it. Not only was my old boss gone, but his jurisprudential legacy would soon be erased. Everyone knew that Hillary Clinton would trounce Donald Trump on Election Day. Scalia's seat, which Senate majority leader Mitch McConnell had kept open since his death in February, would soon be filled, perhaps by Barack Obama's nominee Merrick Garland, perhaps by a more progressive pick by Hillary. Either way, the Court would have a new and emboldened liberal majority that would no longer have to depend on Justice Anthony Kennedy to wreak havoc on the Constitution.

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Yes, Trump’s flag-burning executive order is constitutional



In 1989, Justice Antonin Scalia cast the deciding vote to overturn the conviction of Gregory Lee Johnson, who was arrested and found guilty of violating a Texas statute after he burned the American flag outside the Republican National Convention.

The author of the 5-4 opinion was Justice William Brennan, the leading liberal and advocate for the “living Constitution” on the Supreme Court. For conservatives, it was one of the two most widely criticized votes of Justice Scalia’s illustrious career (the other being his vote refusing to recognize that parents have a natural, constitutionally protected right to direct the upbringing of their children).

The president’s executive order is not only much needed and long overdue, but is also very likely to be upheld by the Supreme Court when the inevitable challenges arise.

But the opinion by Brennan, which Scalia joined, is not as absolute as it has subsequently been portrayed.

The historical context

It specifically held that Texas violated the First Amendment by prosecuting Johnson “in these circumstances” — that is, expressive conduct or symbolic speech as part of a political protest that was not designed to incite a crowd (nor did it have that effect). It also held that the “government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.” Only laws directed at restricting the communicative nature of expressive conduct implicate the First Amendment, and even then they can be upheld for a valid governmental interest.

Texas offered two governmental interests in defense of its flag-burning statute: 1) preventing breaches of the peace and 2) preserving the flag as a symbol of national unity. The court rejected the second because it was related to the suppression of expression, and it rejected the first because “it was not implicated” in the case.

That is the important caveat in Texas v. Johnson that President Donald Trump’s executive order, “Prosecuting Burning of the American Flag,” seeks to capitalize on.

A needed change

After articulating why the flag is such a cherished symbol, one for which “many thousands of American patriots have fought, bled, and died to keep ... waving,” the order asserts, “Desecrating it is uniquely offensive and provocative,” and is “a statement of contempt, hostility, and violence against our Nation.”

It then invokes the Texas v. Johnsoncaveat: “Burning this representation of America may incite violence and riot. American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.”

The order correctly points out that the Supreme Court “has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to ‘fighting words’ is constitutionally protected.” And it laudably directs the attorney general to prioritize the enforcement of civil and criminal laws against flag desecration, quite correctly limiting it to flag-burning conduct that causes harm “unrelated to expression” in order to be consistent with the First Amendment as interpreted by the Supreme Court in Texas v. Johnson.

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Photo by BRANDONJ74 via Getty Images

Maintaining precedent

After 35 years of timid responses to the flag-burning case, in which elected officials and law enforcement at every level thought flag-burning was constitutionally protected no matter the circumstances (an erroneous view repeated ad nauseam by many critics of the president’s order), President Trump has taken a long-overdue stand to protect the flag. He is seeking to safeguard it from those who would burn it to incite violence, provoke with “fighting words,” or more broadly, seek to intimidate Americans from expressing patriotism and applauding American exceptionalism.

The incitement, fighting words, and intimidation exceptions have sometimes themselves been limited to acts targeting particular individuals rather than groups. But as the Supreme Court recognized in Virginia v. Black, a cross-burning case that was decided 14 years after Texas v. Johnson, the First Amendment doesn’t necessarily protect such conduct when targeting groups rather than specific individuals.

The aggressive use of American flag-burning as a tactic of incitement and intimidation, which has been on display in cities across the country in response to President Trump’s efforts to enforce our nation’s immigration laws, demonstrates that “in these circumstances” (as distinct from the milquetoast circumstances at issue in Texas v. Johnson), the president’s executive order is not only much needed and long overdue, but is also very likely to be upheld by the Supreme Court when the inevitable challenges arise.

Editor’s note: This article was originally published on the American Mind.

Trump’s new judge pick: True constitutionalist or hidden Democrat?



President Donald Trump's nomination of Assistant U.S. Attorney Rebecca Taibleson for the Seventh Circuit Court of Appeals has prompted questions about the extent of her alignment with the administration's conservative values, particularly in light of her and her husband's political donations to Democrats.

Trump's first term was undermined by several appointments that did not fully align with the administration's priorities, leading to setbacks in key legal battles and policy implementation. The president admitted that he received "bad advice ... on numerous Judicial Nominations," expressing that he was "very disappointed" with some of those picks.

'She brings an exceptional legal mind and a firm dedication to interpreting the law as written, not bending it to fit a political agenda.'

Mike Davis, a Trump ally and the founder of Article III Project, stated that the president's second administration would not make that same mistake again and instead would focus on selecting judges who are "even more bold and fearless" and have been "battle-tested."

Trump announced Taibleson's nomination in August, writing in a social media post, "It is my Great Honor to nominate Rebecca Taibleson to serve as a Judge on the United States Court of Appeals, for the Seventh Circuit, in the Great State of Wisconsin. Rebecca brings a wealth of EXPERIENCE AND SUCCESS, from her time as Assistant United States Attorney for the Eastern District of Wisconsin and, formerly, as Assistant to the United States Solicitor General."

"Rebecca has learned from some of the BEST and most HIGHLY RESPECTED Legal Minds in the Country, having clerked for United States Supreme Court Justices Brett Kavanaugh and Antonin Scalia. Rebecca will make a fantastic Judge who will fearlessly defend the Constitution, and strongly uphold the Rule of Law. Congratulations Rebecca!" Trump added.

While Taibleson, 42, meets all legal qualifications, having earned her J.D. from Yale Law, her background raises questions about her political leanings. In fact, her conservative critics have been quick to highlight that she and her husband have a history of donating to Democrats.

RELATED: Rogue judges voted to replace Trump-chosen US attorney Alina Habba. DOJ fights fire with fire.

Roman Martinez, Sarah Pitlyk, Rebecca Taibleson, and Porter Wilkinson, former law clerks for Brett Kavanaugh. Photo By Tom Williams/CQ Roll Call

Taibleson donated in 2022 to Joe Manchin, a former Democratic senator from West Virginia, through ActBlue, and in 2024 to Bridget Schoenborn, a judge nominated by Democratic Wisconsin Governor Tony Evers. However, she also donated to Mike Gallagher, a former Republican representative, and WINRED in 2016 and 2020, respectively.

Blaze News reached out to Taibleson for comment.

Her husband, Benjamin Taibleson, contributed to Joe Biden's 2020 presidential campaign against Trump, Kamala Harris' Senate campaign in 2015, and Forrest Dunbar, a Democratic member of the Alaska Senate.

Despite these donations to Democrats and other elements of her record that appear to her conservative critics at odds with the administration's priorities, Davis and the Article III Project have expressed their support for Taibleson.

"President Trump continues to deliver on his promise to appoint bold and fearless judges who will defend the Constitution and uphold the rule of law," Davis said. "His latest nomination of Rebecca Taibleson to the U.S. Court of Appeals for the Seventh Circuit is a testament to his unwavering commitment to restoring a judiciary grounded in constitutional principles and judicial restraint. She brings an exceptional legal mind and a firm dedication to interpreting the law as written, not bending it to fit a political agenda."

"As President Trump further reshapes the federal judiciary with judges who understand their role is to interpret the law, not make it, the Article III Project stands ready to support Taibleson through every step of the confirmation process. We are committed to ensuring the American people get the impartial, constitutionally faithful judges they deserve," Davis added.

RELATED: 'Monumental victory': Trump applauds Supreme Court for disabling Democrats' biggest weapon

Justice Antonin Scalia. Photo by Chip Somodevilla/Getty Images

Taibleson's conservative supporters have pointed to her experience working as a clerk for Justice Antonin Scalia and Judge Brett Kavanaugh, even advocating for Kavanaugh's Supreme Court nomination, as proof of her commitment to uphold similar values. However, critics dispute this claim, noting that Scalia was known for hiring counter-clerks, or politically liberal clerks, and that Kavanaugh has been suspected of employing a similar practice.

For example, Department of Justice lawyer Danielle Sassoon opposed Trump's attempt to dismiss charges against New York City Mayor Eric Adams. Law professor Rachel Barkow stated that Trump's "use of the pardon power is part of his effort to put the country on an authoritarian path." Former Judge Michael Luttig described Trump as "a clear and present danger to American democracy." Notably, all four individuals were former clerks for Scalia.

Some of Taibleson's conservative supporters also point to her time with the Solicitor General's office beginning in the first Trump administration. However, she remained on with the Biden administration through 2022, including defending Biden's student loan forgiveness policy in a lawsuit brought by the Brown County Taxpayers Association.

As Taibleson's confirmation process unfolds, various aspects of her record will likely spark ongoing debate about whether she fully embodies the bold constitutionalism Trump has pledged for his judicial nominees, or whether potential misalignments could mirror the challenges faced during his first term.

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Our kids know TikTok stars — but not who freed the slaves



John and Abigail Adams envisioned an America with a school in every neighborhood and a well-informed citizenry that was adept in languages, literature, and music, as well as science, history, and religion. Their vision was practical until the ages recast it, little by little.

Then, sometime between Joseph McCarthy and Joan Baez, the status quo of the educational system came undone.

Only about 18% of colleges and universities nationwide require the study of history and government in their general education programs.

Students accustomed to a traditional 50/50 split between the humanities and the sciences were capsized academically by the surprise Sputnik launch in 1957. The space race sent higher education into a tizzy, leading to a fixation on improving science education above all. In the succeeding seven decades, resources have consistently risen for science, technology, engineering, and mathematics, which has been to our benefit. But this has come at an unnecessary cost: The humanities have been downplayed, devalued, and dodged.

That uneven ratio has bestowed an unfortunate historical illiteracy on three generations. Most people, for example, do not know the philosophical roots of the Declaration of Independence, their rights as laid out in the Constitution, or the civic virtues their teachers should have taught them. For these three reasons, many Americans do not vote in local, state, or national elections.

Universities drop the ball

Even amid this crisis of civic illiteracy, only about 18% of colleges and universities nationwide require the study of history and government in their general education programs. In years past, when the architecture of academe was different, a plethora of institutions, such as Harvard, Rice, Notre Dame, Johns Hopkins, and William & Mary, proffered requirements for focused classes in American history. But their phaseout — which began in the 1960s — was practically completed by 2000.

According to a report from the American Council of Trustees and Alumni, at Columbia University:

Students must take at least nine courses to graduate with a B.A. in history. Of these courses, four must be in a chosen field of geographical, chronological, or thematic specialization, and three must be outside of the specialization, including one course removed in time and two courses removed in space.

In other words, the major requires exposure to a variety of histories — none of which need touch on America.

That gap in Columbia’s history major requirements is deeply troubling, though it at least has a contemporary civilization requirement in its signature core curriculum for undergraduates that addresses founding documents and key concepts of United States government. Meanwhile, at Colgate University, which has no such option in its general education requirements:

Students choose one of two pathways to graduate with a B.A. in history. Both require nine courses. The Field of Focus (FoF) Pathway requires one history workshop, seven electives. ... The FoF Pathway allows students to devise individualized, intellectually coherent specializations. Possible fields of focus include environmental history, gender and sexuality, and race and racism.

This reorientation away from the study of American history — even as a point of reference for students focusing their studies on other parts of the world — is now the norm in the American academy. In the 2020-2021 academic year, 18 of the top 25 public universities did not have a wide-ranging American history requirement for students seeking a B.A. in history in the major or core curriculum — nor did 24 of the 25 best national schools.

Even the legendary linchpins of the liberal arts — Amherst, Swarthmore, Vassar, Smith, Williams, and Pomona — fared poorly: 21 out of 25 colleges examined did not have an American history requirement.

The consequences of forgoing the study of American history have a powerful effect on the population. Much of what is not learned — or stays uncorrected — turns into the misinformation that is so damaging in a free and democratic society.

The civic literacy crisis

When eighth graders were asked in 2011 "to choose a ‘belief shared by most people of the United States,’ a majority (51%) picked ‘The government should guarantee everybody a job,’ and only a third chose the correct answer: ‘The government should be a democracy.’”

In 2015, 10% of college graduates believed Judy Sheindlin — TV’s “Judge Judy” — was a member of the Supreme Court.

In 2019, the American Council of Trustees and Alumni found that 18% of American adults thought Rep. Alexandria Ocasio-Cortez (D-N.Y.) was the architect of the New Deal — a package of programs President Franklin Delano Roosevelt introduced in 1933. Twenty-six percent believed Brett Kavanaugh was the current chief justice of the Supreme Court, along with another 14% who identified Antonin Scalia — even though he had been dead for two years at the time of the survey. Only 12% knew the 13th Amendment freed the slaves in the United States, and 30% thought the Equal Rights Amendment guaranteed women the right to vote.

In 2024, an American Council of Trustees and Alumni survey of college students showed that fewer than half identified ideas like “free markets” and “rule of law” as core principles of American civic life. The survey also found that 60% of American college students failed to identify term lengths for members of Congress. A shocking 68% did not know that Congress is the branch that holds the power to declare war; 71% did not know when 18-year-olds gained the right to vote.

All of these results were based on multiple-choice questions. All the respondents had to do was select the correct option out of four possibilities.

Forget history, forgo your future

The late Bruce Cole, chairman of the National Endowment for the Humanities from 2001 to 2009, admonished, “Unlike a monarchy, a democracy is not automatically self-perpetuating. History and values have to be renewed from generation to generation.”

Our failure to educate future citizens for informed civic participation compromises the country. Institutions need to take the American Council of Trustees and Alumni’s findings to heart and, starting with their requirements for the history major, embrace their obligation to address the crisis in civic education.

Editor’s note: This article was originally published by RealClearPublicAffairs and made available via RealClearWire.


NY Democrats Seek To Punish Musk Over His Politics

A Democrat member of the state legislature has introduced a bill avowedly aimed at punishing Elon Musk for his political activities.

Kavanaugh Pal, Meta's 'Most Prominent Republican,' Will Run Company's Global Public Policy

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The post Kavanaugh Pal, Meta's 'Most Prominent Republican,' Will Run Company's Global Public Policy appeared first on .

Myth of DOJ ‘independence’ crumbles with Gaetz’s nomination



Editor’s note: This article appeared originally on September 19, 2023, under the headline “Enough with the Justice Department ‘independence’ myth.” We’re republishing it today because President-elect Donald Trump on Wednesday nominated Rep. Matt Gaetz (R-Fla.) to be his attorney general, and the Democrats — and more than a few Republicans — lost their minds. Gaetz, Trump wrote on Truth Social, “will end Weaponized Government, protect our Borders, dismantle Criminal Organizations and restore Americans’ badly-shattered Faith and Confidence in the Justice Department.”

But Gaetz’s critics don’t see it that way. They say Gaetz would politicize the Justice Department and threaten its “independence” an independence that Deion Kathawa carefully explains does not exist, either in the Constitution or the law.

***

A powerful and entrenched myth plagues American politics — namely, that the Department of Justice is, to some degree, “independent” of the president. The idea is plainly unconstitutional, actively harmful to the intended operation of our system of government, and a major contributor to the derangement of our common life. A critical step toward restoring sanity in our politics requires its eradication from our day-to-day practices and the people’s collective consciousness.

If the president is truly in charge of the entire executive branch, then he must have control over all of his officers and employees.

The myth originates from the Watergate scandal 50 years ago. For those unfamiliar with the history, a brief summary is in order.

The series of events that most contributed to the birth of the myth of the Justice Department’s “independence” began on the evening of Saturday, October 20, 1973 — the “Saturday Night Massacre.” President Richard M. Nixon ordered Attorney General Elliot L. Richardson to fire Archibald Cox, who in 1973 had been appointed as the special prosecutor to oversee the federal criminal investigation into the Watergate burglary and related crimes. Richardson refused to fire Cox and resigned. Nixon then ordered Deputy Attorney General William D. Ruckelshaus to fire Cox. Ruckelshaus likewise refused and resigned. Nixon then ordered the next most senior department official, Solicitor General Robert H. Bork, to fire Cox. Bork carried out Nixon’s order.

Nixon’s actions that night set off a firestorm, culminating in his resignation from the presidency in the face of the House of Representatives’ threat of impeachment and the Senate’s near-certain conviction, as well as the eventual passage of the Ethics in Government Act of 1978.

A section of the EGA that authorized independent counsel investigations came before the Supreme Court in 1988. In Morrison v. Olson, a 7-1 majority (Justice Anthony M. Kennedy recused himself) held that the independent counsel provisions of the law “do not violate the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, or the limitations of Article III, nor do they impermissibly interfere with the President’s authority under Article II in violation of the constitutional principle of separation of powers.”

Justice Antonin Scalia, the decision’s lone dissenter, penned what is widely considered his best opinion. He famously observed the case was about:

the allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish — so that “a gradual concentration of the several powers in the same department,” Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

Scalia’s basic point was that the independent counsel provisions of the EGA were void because prosecutorial power is quintessentially executive power and that because Article II of the Constitution provides that “the executive Power” — all of it — “shall be vested in a President of the United States,” any diminishment of the president’s authority is ipso facto unconstitutional.

Scalia noted that although the majority agreed with him that “the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute)” is “the exercise of purely executive power” and that independent counsel provisions “deprive the President of the United States of exclusive control over the exercise of that power,” it nonetheless upheld those provisions because they did not completely eliminate the president’s control over the independent counsel — the counsel could still be fired for “good cause.”

Ultimately, Congress did not renew the independent counsel statute, which, as the Washington Post reported in June 1999, “gave rise to Kenneth W. Starr, the impeachment of President Clinton, and 20 other investigations of high-level federal officials over the past two decades.”

On both constitutional and pragmatic grounds, this was the right outcome. Scalia’s Morrison dissent was prophetic.

If the president is truly in charge of the entire executive branch (the academic literature refers to this as the “unitary executive theory”), then he must have control over all of his officers and employees. As a practical matter, of course, the president cannot personally “take Care that the Laws be faithfully executed,” as Article II, Section 3 commands, but if he cannot, when necessary, direct the actions of his subordinates — and remove them if they do not comply — then he is not really in charge.

After all, if the buck does not stop with the president, what on earth is the point of all the billions of dollars’ worth of drama we go through as a country every four years to elect one?

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