Category Archives: SCOTUS

I’m just stopping by . . . to add a little ‘context’

While my Republican brethren bray across the cablesphere about yesterday’s SCOTUS decision upholding Obamacare, I went a’reading to see what the long-time SCOTUS reporters had to say.

Writing about the majority opinion Linda Greenhouse wrote:

The chief justice’s masterful opinion showed that line of argument for the simplistic and agenda-driven construct that it was. Parsing the 1,000-plus-page statute in a succinct 21-page opinion, he deftly wove in quotations from recent Supreme Court opinions.

Who said that we “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”? Why, it was Justice Scalia (actually quoting an earlier opinion by Justice Sandra Day O’Connor) in a decision just a year ago.

And who said that “a provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme” because “only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law”? Why, Justice Scalia again.

The Court didn’t rewrite the law. They just read it, as is their job.

Please ‘splain to me

Inside the majestic building housing the Supreme Court of the United States (truly a gorgeous building), the Justices yesterday  ruled that the 35-foot buffer zone around an abortion clinic “violated protestors’ freedom of speech”. Outside that same building, the exclusion zone for protestors is 250 feet.

Justice Ginsberg: please resign before the 2014 elections

(PLEASE NOTE: Ginsberg is my favorite Justice – she’s smart and savvy and full of mischief.)

It’s futile to pretend any more that the Supreme Court is non-partisan. Justices are people (the human, not the corporate kind – at least not yet) and don’t have identical values or beliefs. Their perspectives – on law, history, social justice, the U.S. Constitution – are informed by cultural identity, ethnicity, education, religion and probably gender. This has always been true.

Of course a Court is, ideally, charged with rising above the personal and interpreting the law. But we don’t get ideal; we get nine mere mortals who must somehow work it all out and render ‘judgement’ on a legal appeal.  (Note to Scalia: judgement involves judging. All things are not self-evident.)

Today’s Court isn’t doing too well with that ‘rising above’ thing. A lot of decisions are nakedly political and too much of the time we have 5 to 4 votes favoring the Right. Also:

  • The 2014 elections could very well change the majority in the Senate.
  • Justice Ginsberg is the oldest person on the bench and will be 81 in 2014.
  • Justice Ginsberg, while mentally acute (unlike Scalia, the next oldest), is physically unwell and has had cancer more than once. Her health could decline further.
  • A Republican Senate can deny Obama a majority on any Supreme Court  nominee. (UPDATE: James reminds me in comments that confirming a Supreme still requires the ‘super majority’ of 60 votes, but still . . . )
  • If Republicans take the White House and hold the Senate in 2016, that doesn’t bear thinking about.

She and Scalia have for decades enjoyed a close friendship, so perhaps they could make the leap together – before 2014. Solidarity and all. (A bit of trivia – after Reagan nominated Scalia in 1986, he was confirmed by a Senate vote of 98-2.)

Justice Ginsberg should reconsider this . . .

She says she won’t be retiring during Obama’s term. Her call, but . . . look at the ages in the chart below . . .  in 2017, four justices will be 80 or over (okay, Breyer will be only 79). I think that makes 2016 the most significant presidential election in decades. Whichever party wins could have the opportunity to replace four of Justices, especially if it’s an 8-year term. Perhaps five; Thomas will be 75 in ’21.

Right now, the Court is lopsided enough with six Catholics and three Jews. And three of them come from New York City – not just the State, the City – and two are from Trenton NJ in the same metro area.

  • Kagan is from NY, NY (Manhattan)
  • Sotomayor is from the Bronx NY
  • Ginsberg from Brooklyn NY
  • Scalia AND Alito from Trenton NJ
  • and even though it’s not quite the same, Roberts is from Buffalo NY

scotus age

Another picture I like

Although I do think Ginsberg would look better is a very soft grey. (Hat tip cousin Jeff.)
390133_10151734635637743_1448344591_n

 

Say no more

scaliaScalia on DOMA (passed by Congress almost 20 years ago ago by a vote of 85-14 in the Senate and 342-67 in the House):

We have no power to decide this case,” Scalia wrote. “And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.

Scalia on Affirmative Action (law was extended by Congress in 2006 for 25 more years by a vote of  98-0 in the Senate and 390-33 in the House):

Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes… It’s a concern that this is not the kind of a question you can leave to Congress

And jkust for the heck of it, here’s somerthig else he wrote:

DOMA is motivated by ‘bare … desire to harm’ couples in same-sex marriages

Some Constitutional rigor there, eh?

What will The Nine sayeth?

As those who give a damn wait for the Supreme Court to wrap up this session and announce their final decisions, I dare to repost my own predictions. Know that I bravely put these out here so that you may bow to my majesty if I’m right, or mock me without mercy if I’m wrong.

  • DOMA – The Supremes knock it down as unconstitutional
  • California Prop 8 – unconstitutional
  • Affirmative Action – limited decision, but basically will say the program has – in some instances – run its course. They side for the Plaintiff.

An astonishing statement from a sitting Justice

Again, from Jeffrey Toobin’s latest SCOTUS book:

By the time Sandra Day O’Connor was leaving the court in July of 2005, she had already let it be known that she regretted her vote in Bush v. Gore. (A Goldwater Republican from Arizona, O’Connor – as most of us know – was often the ‘swing’ vote on the Court, and it was in that case.)

By ’05, she considered the Bush presidency to have been a disaster. On one of her last days at the Court, in conversation with Justice Souter (a Republican appointee who usually voted with the liberals), she said:

“What makes this harder is that it’s my party that is destroying the Country.

I thought Republicans were for a strong military and a balanced budget . . . Bush repudiated all of that.”

Guns, damn guns and things I didn’t know: Part the gajillionth

During the American Revolution, local militias –  who played the role of today’s  National Guard – had no collective arms and depended entirely upon the arms and ammunition of private citizens. (Okay, I knew that part.)

american-colonial-militia-rifleman-randy-steeleTo facilitate response time (the British are coming! the British are coming!), they often stockpiled their arms in one place for easy access. Basically, an armory.

Before the Revolution and in its very early days, the British – the ‘central government’ of that day – took to seizing those arms, something the good folks  took personally – those guns were private property after all. (Might that be the origin of our love affair with personal weapons – well, public weapons as well, since we are the largest arms exporter in the world.)

There are several references to militias in The Constitution (which I did not know; I thought it was only addressed in the Second Amendment). Article I assigns Congress the power to:

. . . provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; [and]

To provide for organizing, arming and disciplining, the Militia, and for governing of such Part of them as may be employed in the Service of the United States.

(I’m getting this from Jeffrey Toobin’s terrific 2012 book about Obama and the Roberts Court by the way.)

Toobin goes on:

Article II says the president is C in C of the army, navy and “Militia of the Several States when called into the actual Service of the United States”. It wasn’t until the Militia Act of 1903 that their functions were formally subsumed into other agencies, like the National Guard . . .

And this: in the first 200 years of our existence, the Supreme Court discussed the Second Amendment exactly once, in 1938. It – U.S. v. Miller – was a challenge to the National Firearms Act passed in 1934 in response to the gang violence of the day and in particular to the St. Valentine’s Day massacre, which horrified the country not least because ‘machine guns’ were used. The Court ruled – unanimously – that the Act complied fully with the Second Amendment. Justice McReynolds spoke for the Court, saying they’d concluded that the Second Amendment existed to preserve the rights of militias – not individuals – to keep and bear arms.

And the issue disappeared once again, resurfacing only after the Kennedy assassinations.

massacreThe Gun Control Act of 1968 had widespread public support including the strong support of the NRA (when they still represented actual gun owners). 

IRONY ALERT: That didn’t change until Ronald Reagan’s 1976 campaign for the presidency. Writing an article for Guns and Ammo in 1975, he set off an entirely different conversation about guns, working opposition into a libertarian message, even insisting that the Second Amendment prohibited gun control – so much so that the 1976 Republican platform proclaimed a new-found opposition to gun control, reversing its previous 1972 platform supporting gun control. And in 1977, hard-liners staged a coup d’etat at the NRA to align with the new position). Everything changed.

But back to 1939. Toobin calls the U.S. v. Miller decision:

entirely originalist in its reasoning. The opinion quoted the provisions of Article I  dealing with the powers and then stated “With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”

Toobin continues:

Indeed, if the Second Amendment were intended by its framers to give individuals a right to keep and bear arms, the initial militia clause [“A well-regulated Militia  being necessary”, etc.] would be both unnecessary and meaningless.”

I find the reasoning of both that 1939 Court and of Jeffrey Toobin to be impeccable. (And as proof that I care, know that I had to type all this . . . no cut and paste from da books!)