Archive for the ‘Supreme Court’ Category

Greenhouse Effect Strikes Again?

Saturday, July 7th, 2012

Love this story about how Chief Justice Roberts initially voted with the conservative majority to overturn the individual mandate, if not the entire ACA, but that he eventually changed his vote, siding with the liberal Justices to uphold the core of the law.

This was insult to injury for seething Republicans, already smarting from the decision itself, to know that they came so close to victory, but couldn’t seal the deal. For many Republicans, this was another in a series of disapointments, going back to the Reagan-Bush Era when Republicans expected Supreme Courts packed with their appointees to consistently vote to enact the conservative agenda.

Republicans have dubbed the tendency of Republican appointed Justices to shift their opinions to the left as they spent more years on the bench, ”The Greenhouse Effect” named for Supreme Court Reporter Linda Greenhouse, but a shift to the Left for Justice Roberts seems very unlikely. In fact, this decision is in keeping with the promises Justice Roberts made during his confirmation hearing when he said that a Judge’s role was to be a neutral umpire, calling balls and strikes, applying the rules, not creating them, as well as his focus on the legitimacy of the Court throughout history.

Despite the Republican rage, we should be under no illusions that Justice Roberts is undergoing some sort of leftward drift. After all, this is the activist court that brought us Citizens United as well as many other cases that are fundamentally re-writing the rules to benefit the powerful at the expense of those without. In the days before the Supreme Court Arguments in this case, I linked to an article by Dahlia Lithwick in which she argued that Chief Roberts would write an opinion upholding the ACA

And then—having been hailed as the John Marshall of the 21st century—he will proceed to oversee two (decades) during which the remainder of the Warren Court revolution will be sent through the wood chipper.

Unfortunately, I suspect that we will look back at history in 20 years and see that she was exactly right.

Towards An America That Does Big Things

Saturday, July 7th, 2012

Last weeks Supreme Court Decision upholding Obamacare was a big win for the president and a big win for the uninsured. More importantly, it was a big win for people who still believe in an America that can do big things.  The Federal Government was designed to make passage of major legislation difficult, but in our modern era, the checks and balances created by the Framers 200 years ago have more often become a way for entrenched interests to veto policies that impose any costs on special interests, effectively preventing anyting from getting done on important issues as long as a loud minorities are opposed to them.

We have huge issues to resolve in this country: unemployment, ever increasing amounts of debt, runaway health insurance costs, a broken immigration system, crumbling infrastructure, global warming and an intractable addiction to fossil fuels, just to mention a few. And on all of these issues, we have faced a political system that has not been up to the task of resolving them.

The Affordable Care Act is not great legislation. In fact, in many ways, it is a symptom of our broken political system where every special interest had to be bought off in order to pass the legislation. Most of the provisions that dealt with cost control were taken out of it after Republican’s demagoged them. Still, whether you believe that the Affordable Care Act was a good law or a bad one, it’s clear that it tried to deal with a major problem in our society and, if it was overturned, it would have been the last attempt to deal with this issue in a generation. 

Judge Robert’s decision was the right one as is the effect of Robert’s decision. As Republicans made clear this week, the decision doesn’t end the debate over the Act. What it does is put the decision back into a realm where the public can decide whether they want to keep it or overturn it. If the legislation is so bad, then the Republicans need to elect a Republican President and Congress in order to overturn it.

It is certainly possible that the ACA will be gutted by the next president and Congress. But I am glad that the decision will be made by the votes of hundreds of millions of people in both parties, not just 5 Republicans judges in black robes.

Obamacare Supreme Court Primer

Tuesday, March 27th, 2012

Here’s Ezra Klein and Sarah Kliff with everything you need to know about health care reform’s Supreme Court debut.

They provide some good links to analysis of the case. It looks as though most scholars seem to agree that, whether you like the individual mandate or not, there is a ton of Supreme Court precedent that supports the ability of Congress to enact a law like this. The Commerce Clause in the Constitution gives Congress the ability to regulate interstate commerce, and as Bloomberg View puts it

The question is what qualifies as interstate commerce. For most of the second half of the 20th century, the answer has been clear…pretty much anything.

Is a farmer growing wheat for his own consumption engaging in interstate commerce? Yes. A small restaurant in Alabama refusing to seat blacks? Yes. A sick Californian growing her own medicinal marijuana, as allowed by state law? Yes. And so on.

and if these cases are considered appropriate use of the Interstate Commerce Clause, then certainly a requirement that is central to controlling the cost of an industry that accounts for 18% of the economy qualifies as well.

And lest you are tempted to cite the Founding Fathers to denounce requiring purchase of a private good, you would be wise to remember that George Washington signed a bill in 1792 mandating that all free men purchase a gun (Big Government indeed).

Perhaps the most interesting take on the Supreme Court’s decision comes from Dahlia Lithwick, who predicts that the Justices will stay away from a narrow decision striking down the law and keep their powder dry for the upcoming battle to dismantle the Warren Court’s legacy:

They will hear six hours of argument next week. They will pretend it is a fair fight with equally compelling arguments on each side. They will even reach out and debate the merits of the Medicaid expansion, although not a single court saw fit to question it. And then the justices will vote 6-3 or 7-2 to uphold the mandate, with the chief justice joining the majority so he can write a careful opinion that cabins the authority of the Congress to do anything more than regulate the health-insurance market…. And then—having been hailed as the John Marshall of the 21st century—he will proceed to oversee two years during which the remainder of the Warren Court revolution will be sent through the wood chipper.

Lithwick’s analysis sounds about right to me. Say what you will about John Roberts, but you have to admire his ability to smile politely and show the world a reasonable disposition while he works behind the scenes to radically alter the rules of the political system that Americans have come to understand them in the modern era. 

I say he and his team pass on this one so they have a freer hand when the eyes of the country aren’t focused on them.

Kagan and Sotomayor Play Supreme Court Good Cop-Bad Cop

Monday, December 27th, 2010

Kagan's investiture ceremony

Here’s an LA Times article on how the addition of Sonia Sotomayor and Elena Kagan have given a shot of energy to the left in oral arguments before the Court.

Too soon to tell yet, but this article provides evidence for the much speculated upon theory that the addition of Kagan was an attempt by Obama to pick someone who could serve as a consensus builder, crafting middle ground positions that could bring Justice Kennedy away from the conservatives to meet with the liberal justices on a middle ground.

There is some evidence of this and the LA Times article shows the good cop-bad cop roles that Sotomayor and Kagan sometimes take on, with Sotomayor’s aggressiveness as a questioner serving as a counterweight to Scalia, and Kagan playing the role of a consensus builder in the middle left, attempting to bring Kennedy along.

This approach won’t be successful all the time, nor will it provide liberal outcomes in most cases, but it may temper some of the extremes of the Robert’s Court (which is the best the liberals might hope for barring some unexpected change in the composition of the court).

Anita Hill’s Apology to Clarence Thomas and Other Unlikely Events

Thursday, October 21st, 2010

Here’s Olberman on Clarence Thomas’ wife Virginia asking Anita Hill for an apology and other apologies requests that probably won’t pan out any time soon.

A little trip down memory lane and some pretty good satire.

Judge Walker Tees up Prop 8 Case for Justice Kennedy

Monday, August 9th, 2010

I have to say that I hadn’t paid attention to the Prop 8 case before last week’s decision. I assumed that the Supreme Court overturning Prop 8 and declaring a constitutional right to gay marriage had close to no chance under the Roberts court.  

After the coverage of Federal Judge Vaughn Walker’s decision declaring Prop 8 unconstitutional, I’m realizing along with a lot of other people that this possibility has a real chance of becoming a reality.

To me, the most interesting part of this case is the pure gamesmanship that has gone into it. To begin with, the case against Prop 8 is being argued by David Boies and Theodore Olson, the two men who argued against each other before the Supreme Court in the Bush v. Gore case. These men are two of the most prominent lawyers in America today. Boies is one of the most respected trial lawyers in America and Olson served as Solicitor General of the United States under George W. Bush and was considered for a Supreme Court nomination. The judge in the case is a George HW Bush appointee who has an reputation as an independent thinker with a libertarian bent. Judge Walker is also gay.

 As Dahlia Lithwick detailed in Slate.com this week, Walker lays the groundwork for a Supreme Court overturning of this law with an extremely well crafted opinion that seemed to be written with a keen political eye towards having Justice Kennedy cast the deciding vote to guarantee gay couples the right to marry.

While it’s impossible to say with any certainty how the individual Justices would rule on the case, the idea of Kennedy casting the swing vote assumes that all of the left of center Justices would vote in favor of a right to gay marriage and that the 4 staunchest conservatives would vote against it. Given the fact that Kennedy has increasingly sided with the conservative block of the court in recent years, I had assumed that he would do the same in this case. 

However, I had forgotten that Justice Kennedy has been an unlikely champion of gay rights on the Supreme Court. Kennedy wrote the opinion for a 6-3 majority in Romer v. Evans, a 1996 case that struck down Colorado’s Amendment 2, which would have banned all jurisdictions in Colorado from naming gays as a protected class. He also wrote for a 6-3 majority in Lawrence v. Texas, a 2003 case that held that Texas’ anti-sodomy laws were unconstitutional. 

As Lithwick notes, Walker included seven citations to Justice Kennedy’s  opinion in Romer v. Evans and eight citations to his Lawrence v. Texas opinion.

Also included among the highlights of  Judge Walker’s case are 80 “findings of fact” which appeals courts must supposedly defer to in making their decision. Among the most notable of Walker’s findings are the following:

states have long discriminated in matters of who can marry; marital status affects immigration, citizenship, tax policy, property and inheritance rules, and benefits programs; that individuals do not choose their own sexual orientation; California law encourages gay couples to become parents; domestic partnership is a second-class legal status; permitting same-sex couples to marry does not affect the number of opposite-sex couples who marry, divorce, cohabit, or otherwise screw around. He found that it benefits the children of gay parents to have them be married and that the gender of a child’s parent is not a factor in a child’s adjustment. He found that Prop 8 puts the force of law behind a social stigma and that the entirety of the Prop 8 campaign relied on instilling fears that children exposed to the concept of same-sex marriage may become gay.

Taken altogether, this is an extraordinarily well crafted opinion and lays a clear path for the court to declare a right to gay marriage.

Whether Kennedy would be open to cast the deciding vote in favor of the plaintiffs is, of course, an open question. Certainly, his decisions in Roemer and Lawrence both indicate that it is at least plausible that he would extend the rights granted in those two cases to cover the issue of marriage equality for gays and lesbians, but there is also an argument to be made that the right to engage in consensual sex and be free of discrimination are different than the right to demand that the state recognize a marriage between two people of the same gender.  

This case will be one to watch in the coming years. For now, the political maneuverings that are going on in preparation for what most assume will be an eventual hearing at the High Court have been fun to watch.

Enlarging the Strike Zone

Saturday, July 10th, 2010

The seeds of the Reagan/Bush years are finally coming to fruition.

Chief Justice John Roberts, in his confirmation, famously likened the job of the Supreme Court to that of a impartial umpire, calling balls and strikes. If the results of the Court’s last term are any indication, a better metaphor for what Roberts is doing is enlarging the strike zone while the monied interests are pitching against the American people.

As then Senator Barack Obama noted during Judge Alito’s conformation hearings, Alito, as a federal judge, had “consistently side(ed) on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American’s individual rights.”

Now that Alito has joined Roberts, Scalia, Thomas and Kennedy on the court, it’s becoming clear what the real world consequences of that worldview are.

It’s also shown the hollowness of the Republican arguments against “judicial activism.” For years they used that term as a sword against liberal justices, but the Citizens United case is every much as judicial activist as any of the Warren Court’s decisions. The only difference is that the Roberts court’s judicial activism is creating new rights for corporations while it whittles away at the rights of individuals on the margins.

Unfortunately, the nomination of Elena Kagan is unlikely to change that dynamic. Aside from not altering the liberal-conservative math, Kagan’s nomination seems to be part of an existing pattern of Republican presidents generally picking young, strong conservatives on the Supreme Court while Democratic presidents pick candidates from the center left.

Souter On an Evolving Constitution

Saturday, June 5th, 2010

Wonky little NYT piece from Linda Greenhouse on Souter’s Harvard Commencement Speech.