Tag 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.

Bad. More bad.

So SCOTUS has decided:  protections accorded human beings by the Bill of Rights are extended, yet again, to Corporations.

  • Since corporations are persons and speech is money, political donations are from them are unrestricted. It’s Free Speech, protected by the First Amendment.
  • And now, some for-profit corporations have been granted Freedom of Religion and the attendant protections to exercised those ‘freedoms’ even when in opposition to the civil laws of the land.

Heed Thomas Jefferson:

“The end of democracy and the defeat of the American Revolution will occur when government falls into the hands of lending institutions and moneyed incorporations.”

Say no more.

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

Krathhammer analyzes DOMA decision. Gets it absolutely right.

When he is bad, he is very very bad, but when he is good, he is very very good. Here in his Washington Post column Charles Krauthammer (also senior serious intellectual, FOX News) looks at SCOTUS’ DOMA decision and explains quite well what it means.

He’s not particularly judgmental about either the issue or about the Court’s action. He breaks the decision down to its essentials and says – as I believe – that Federal recognition is now inevitable. Because, as he noted, the Court used the rationale of ‘equal protection under the law’. By saying so in the decision, he says, they pretty much guarantee that full recognition is on the docket next session and it will happen.

. . . if the argument is equal protection, one question is left hanging. Why should equal protection apply only in states that recognize gay marriage? Why doesn’t it apply equally — indeed, even perhaps more forcefully — to gays who want to marry in states that refuse to marry them?

If discriminating (regarding federal benefits) between a gay couple and a straight couple is prohibited in New York where gay marriage is legal, by what logic is discrimination permitted in Texas, where a gay couple is prevented from marrying in the first place?

Krauthammer finds none. He notes the broad smile on the face of David Boise who argued for the Prop 8 ruling and says:

He understood immediately that once the court finds it unconstitutional to discriminate between gay and straight couples, nationalizing gay marriage is just one step away.

Yup. I think Boise and Charles have it exactly right. This week’s half measure is temporary. The fat lady hasn’t quite finished singing yet.

 

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

 

Two (and a half) out of three ain’t bad

I think I did pretty well with my SCOTUS predictions, which means everyone must “bow to my majesty” (much preferable to being “mocked without mercy”).

  • DOMA – The Supremes knock it down as unconstitutional.  NAILED IT!
  • California Prop 8 – Unconstitutional. NAILED IT! (Sheepish Update: Turns out this one is limited to CA and is based on standing. So maybe only half for me here. Can I count the two ‘halfs’ as ‘one’. I say yes. So still Two Out of Three. So there.)
  • Affirmative Action – limited decision, but basically will say the program has – in some instances – run its course. They side for the Plaintiff. ALMOST HALF RIGHT? They held back for sure by sending it back and hinted at future favorable rulings if a Plaintiff has ‘standing’.

(Here’s something from back when this lad had a voice, a beautiful one):

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.”

Oh boy, this one is dead, dead, dead.

DOMA is so going down. CSpan has started broadcasting the audio from today’s arguments at SCOTUS on the challenge to DOMA, that most elegant construct of an insane Congress. They did the deed 13  17  years ago (and got ole Bill Clinton to sign it in an election year when he was already winding his presidency down and didn’t have to do it).

Back in November, your humble blogger predicted (in comments) that the Court would overturn DOMA, and as I listen to today’s audio, it sure sounds like they will do just that and with a healthy majority. We won’t know till May or June.

I haven’t had time yet to listen to yesterday’s arguments on Prop 8, but even if I had, after listening to and reading the observations of  the commentaries I wouldn’t dare predict except for one thing of which I am certain: the Court will not actually uphold Prop 8. There are many ways they can dodge or they can issue what they call a ‘narrow ruling’. They can even decide not to decide. 

I don’t know if they can do this in the Prop 8 case, but a happy outcome would be if they can say that every State must recognize marriages that are legal in other States. That would pretty much do it. I wonder if that’s similar to using the ‘Commerce clause’ as they did in Obamacare?

But in both cases I absolutely trust the Court will not issue any rulings that would actually restrict or deny rights. That’s not the business they’re in.

 (And, like with the ACA opinion, Roberts will buck the politics of the issue and vote to strike down DOMA.)

It’ll happen now

The Supreme Court has just said they’ll ‘take up’ the gay marriage case. They’re almost certain to  find DOMA and other State laws unconstitutional. The US Supreme Court is not in the business of codifying denials of human rights.

So sometime next spring, expect full rights to be established as the law in the United States.

Tony Perkins needs a drink. Hope someone offers one to the poor guy.

(and I will finally get to wear that dress to my best old buddies wedding . . . )

The next big story

Life will go on. Sandy will pass and elections will conclude too. And damage will be done all around. But the world will still turn, especially up in that big white palace of justice in DC. Details at scotusblog, here.

Reasons must be found, must be found!

Matt Drudge provides a glimpse of a  possible script. Because excuses must be made, excuses must be made!!

Exactly: “The Roberts Court is born”

And this is why I always thought the Chief Justice would find a way to uphold Obamacare.

 Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism.  Roberts peered over the abyss and decided he didn’t want to go there.

Roberts’ decision was consistent with his confirmation hearings pledge to respect the co-equal branches of government, push for consensus, and reach narrow rulings designed to build broad coalitions on the Court. He promised to respect precedent. His jurisprudence, he said, would be marked by “modesty and humility” and protection of the precious institutional legitimacy of the Court.

Today, the institutional legitimacy of the Court was buttressed. President Obama wasn’t the only winner at the Supreme Court today. So was the Supreme Court itself.

So this case was the one where he finally decided to adhere to those oft stated principles, which he’s previously ignored. But he has also expressed the hope that he could loosen the partisan divide on the Court, reduce the number of 5-4  votes, and has said he would like more unanimous decisions.

I don’t think Canada will want you, guys. You might try Somalia. Or Yemen.

Reminds me of when one of my brothers proclaimed he was moving to Ireland during Clinton Administration to escape the  awful tax burden here and all teh socialism. But then he found out, you know . . .

Now this – lots and lots of this. Bye-bye.

 

Need some entertainment? FOX News has it for you now!

They never disappoint. I’m told the Dow Jones started tanking minutes after Roberts announced the Cout’s decision.

I misseed Napolitano but he’ll be back. Can’t wait.

Anything else you want to ask me?

It’s been an unbloggy week, but I think I managed to say this on Monday:

(I’m staying out on my limb – I think Roberts votes for Obamacare. And if he does, so does Kennedy.)

Yup. That’s what I said. Gotta go. CNN’s calling.

(Whoops. My bad. Kennedy dissented.)

Think of it this way

If the Supremes overturn the ACA, four justices appointed by Republican presidents will have voted in lock step with Congressional Republicans, not one of whom voted for the bill.

(I’m staying out on my limb – I think Roberts votes for Obamacare. And if he does, so does Kennedy.)

“The geezer empire strikes back”

We all know that rich old men, let loose by the Supreme Court’s cavalier and supposedly intellectual exercise in constitutional masturbation, Citizens United, are busy buying  themselves a Presidency.

Received from friend Ed today, this is Frank Rich, that elegant and terse practitioner of the English language,  in New York Magazine:

. . . 2012 may be seen as the election in which the geezer  empire struck back.

Who has ever said it better?

Take to the fainting couches! Obama criticized the Court!

(Apologies to someone – I grabbed this Daily Kos link from a blogfriend and have now lost track. So whoever put this up before me, thanks. Nice catch.)

Sen Mitch McConnell now:

“The president crossed a dangerous line this week,” read McConnell’s prepared remarks. “And anyone who cares about liberty needs to call him out on it. The independence of the court must be defended.” […]

So, some ‘reporters’ decided to visit the way back machine to see just where this ‘line’ not to be crossed falls.

Candidate Ronald Reagan then:

… campaigning in Birmingham, Ala., Thursday, Reagan blasted the court’s most recent abortion ruling as “an abuse of power as bad as the transgression of Watergate and the bribery on Capitol Hill.” …

Reagan administration then:

Attorney General William French Smith accused the federal courts of “constitutionally dubious and unwise intrusions upon the legislative domain,” and vowed to oppose such “subjective judicial policymaking.” […]

President George W. Bush then:

For the judiciary, resisting this temptation is particularly important, because it’s the only branch that is unelected and whose officers serve for life. Unfortunately, some judges give in to temptation and make law instead of interpreting. Such judicial lawlessness is a threat to our democracy—and it needs to stop.

And oh yeah, the good Senator had few words back then too (about the Schiavo case):

MCCONNELL: I don’t know. These are findings of fact that presumably the court, had it looked at it de novo from the beginning, which is what we granted the federal courts the authority to do, could have taken into account

[Between the lines – the Court overstepped ‘what we granted the federal courts the authority to do’?].

(there’s more at the link from lesser lights.)

George Washington did it. John Adams too.

Now that SCOTUS has finished hearing the challenges to Obamacare, we settle down to wait a few months for their opinion. (Elvis save us from the wrath of those who chant f-r-d-e-e-d-o-m-e-! at every loss if  the justices say, yeah, okay.)

The first US Supreme Court, 1790

Meanwhile, this is interesting. From friend Ed this morning:

. . . three laws, passed in 1790, 1792 and 1798 respectively . . . provide for mandates not unlike the one being considered by the Supreme Court this week . . .:

[In] 1790, the first Congress, which was packed with framers, required all ship owners to provide medical insurance for seamen; in 1798, Congress also required seamen to buy hospital insurance for themselves. In 1792, Congress enacted a law mandating that all able-bodied citizens obtain a firearm. This history negates any claim that forcing the purchase of insurance or other products is unprecedented or contrary to any possible intention of the framers.

PolitiFact dug deeper into Elhauge’s claims and found evidence that mandates were approved by Congressmen who had also signed the Constitution; refuting the assertion that the laws passed despite framers’ objections:

There was no roll call for the House and Senate bills requiring health care for seamen. But on the proposal mandating the purchase of a musket, firelock or rifle as part of the larger bill to establish a uniform militia, 10 of the 14 framers whose votes were recorded endorsed the measure.Not only did mandates pass muster with the Framers in Congress, they were signed into law by George Washington and John Adams.

No fat lady yet at SCOTUS. I say Obamacare makes it.

Long busy day, just now getting to my lonely laptop – and only for a moment before I crash – to say:

I think the ACA will be upheld by the Supreme Court, and I think it can be by a stronger majority than usual. I’m guessing 7-2. If Kennedy joins the liberals, I think Roberts might do the same, and encourage the other conservatives to join as well, and make the decision stronger, closer to unanimity, something he’s always desired for major decisions. If the bill is upheld, it’s an historic decision and Roberts will also want to put his name on it.

It wins. 7-2. And Roberts votes with the majority. Holdouts might be Alito and Thomas.

Hey . . . it’s months off. If I’m wrong, nobody will remember.

Ezra Klein reads Whatever Works – or – I guessed right

. . . . earlier today, I posted this:

I’ve just begun listening to today’s oral arguments in the Supreme Court – up first is the US Solicitor General. And he is just terrible. He is so so terrible. I haven’t heard a single legal argument from him yet, it’s all defensive. He’s halting and gets a bit off track. Yikes.

Shortly afterward, I posted this:

As they say “Now I’m  no lawyer”, but it just sounded like Breyer in his questioning was actually providing some of the reasoned argument one would expect from the SG.

And now I am looking at Ezra Klein’s Twitterfeed (he writes the Wonk Blog at The Washington Post) and look what he is saying.

Oh Clarence where art thou?

I’d forgotten about this. Justice Thomas doesn’t engage in oral argument. And indeed, he didn’t ask a single question in two days.

Are the liberal justices arguing the case for the United States instead of the Solicitor General?

As they say “Now I’m  no lawyer”,  but it just sounded like Breyer in his questioning was actually providing some of the reasoned argument one would expect from the SG.

UPDATE: Sotomayor is trying – very hard – to get the SG to articulate his actual argument. The man seems to be arguing the need for health insurance, instead of presenting the US’s legal argument for the mandate. He’s doing an awful job on the mandate.

UPDATE 2: I also wish he’d stop saying “In my opinion” and “I don’t think it’s fair to say blah blah”.

Oh no, oh please no . . .

. . . please let it get better.

I’ve just begun listening to today’s oral arguments in the Supreme Court – up first is the US Solicitor General. And he is just terrible. He is so so terrible. I haven’t heard a single legal argument from him yet, it’s all defensive. He’s halting and gets a bit off track. Yikes.

I hope it gets better. If it doesn’t, the Justices are going to walk all over him and it’s going to hurt the case.

Supreme Court days

I plan to listen to as much of the oral arguments this week as I have time for. I’ve listened to a few of these before – at the Circuit Court level too – and they’re surprisingly engaging,  even for a non-lawyer. There is, in this country particularly, majesty to the law. Listening to the petitioners make  their cases and then engage with the justices in the finer points of the law and the Constitution gives one an appreciation of how it is we have, no matter our politics, remained ‘a nation of laws’ for two-plus centuries, a nation that’s chosen to be governed by the law

Today’s argument is whether the Court can even hear the case against the mandate yet, since it’s not been enacted. It’s possible they’ll shut it down for now and will return to it after the law goes into effect. Something about you can’t challenge that which does not yet exist in fact.

If, however, they decide that yes, the case can go forward – which I think they will (why else schedule three days for argument) – the meat of the argument starts tomorrow, when they actually take up the matter of the constitutionality of the law.

I think they’ll uphold it. And I think they’ll do it by better than 5-4. It could even be 7-2, with just Alito and Thomas against. Which, of course, will mean the end of freedom.

 

I hope SCOTUS can see this from the office windows

From Bartcop: