Browsing the archives for the Supreme Court category.

People Who Need to Retire: Antonin Scalia

Supreme Court

I had heard that Scalia wants to strike down the Voting Rights Act, but I didn’t know how off the wall he had gotten until I read Dana Milbank this morning

The acerbic Scalia, the court’s longest-serving justice, got his latest comeuppance Wednesday morning, as he tried to make the absurd argument that Congress’s renewal of the Voting Rights Act in 2006 by votes of 98 to 0 in the Senate and 390 to 33 in the House did not mean that Congress actually supported the act. Scalia, assuming powers of clairvoyance, argued that the lawmakers were secretly afraid to vote against this “perpetuation of racial entitlement.”

Kagan wasn’t about to let him get away with that. In a breach of decorum, she interrupted his questioning of counsel to argue with him directly. “Well, that sounds like a good argument to me, Justice Scalia,” she said. “It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation.”

Scalia replied to Kagan, “Or decided that perhaps they’d better not vote against it, that there’s nothing, that there’s no — none of their interests in voting against it.”

You may need to read that two or three times to get the full impact of what Scalia is saying here. Joan Walsh quotes him some more:

I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution …They are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?

In other words, he seems to think he would be doing Congress a favor by striking down the Voting Rights Act, because then they wouldn’t have to keep voting for this law they secretly don’t like but lack the courage to say so.

Scalia has said several things lately that are not just right-wing but even lack internal cohesion. Unfortunately, I don’t think the Constitution provides for forcing justices to retire because of dementia.


The Decision (Update: It’s Saved!)

Supreme Court

Well, we should know in about 25 minutes …

Hoopsi-doodle; I’m getting the news that the individual mandate is upheld. Details to come …

SCOTUSblog has a live blog that is confirming the individual mandate has been upheld. Also I’m hearing that Roberts voted with the majority opinion. A number of commenters said predicted this outcome over the past few hours.

Blood-curdling howl to rise from the Right in 5 … 4… 3… 2… 1…

Update: Yeah, the mandate was upheld 5-4, with Roberts in the majority. I’m assuming that means Scalia, Thomas, Alito, and Kennedy wanted to nix it.

Update: The skunk in the rose garden is that the majority ruling is that the mandate does violate the commerce clause, which is something that could spell trouble for progressivism. But the mandate is upheld under the taxing power. Go figure.

Update: From SCOTUSblog,

In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

The dissents are still being read.

Update: Not a lot of reaction from right-wing blogs yet. I guess they are waiting to receive their talking points from Rush and Hannity.


Antonin Throws a Fit

Supreme Court

I just declared myself to be President of a new organization, provisionally called “Dump Anontin Scalia.” Anyone want to join? Also I’d like to call it something else that has a snarky acronym, but I can’t think of what that might be right now. Seriously, there needs to be a Captain Queeg clause for anyone appointed to life for anything.

Scalia delivered an anti-Obama screed from the bench today that was utterly inappropriate and an embarrassment to the court. Or it would have been, if the Roberts court were capable of being embarrassed. Paul Campos suggests Scalia is unhinged.

See also Charles Pierce and James Fallows.


When Smart People Are Really Stupid

elections, Supreme Court

At the New York Times, Nicholas Confessore writes about the continuing fallout from Citizens United.

… for a growing number of strategists and operatives in both parties, the very nature of what it means to work in politics has shifted. Once wedded to the careers and aims of individual candidates, they are now driven by the agendas of the big donors who finance outside spending. …

…In the insular but fast-growing world of super PACs and other independent outfits, there are no cranky candidates, no scheduling conflicts, no bitter strategy debates with rival advisers. There are only wealthy donors and the consultants vying to oblige them.

Political consultants are stampeding to the Super PACs for jobs, because the bankrollers pay better and there’s no campaign to run. So instead of working for candidates, parties, or even advocacy groups, they work for a small number of billionaires with agendas. Some of the Super PACs do accept small donations from many donors, but some of them are “boutique” PACs “set up on behalf of a few donors — sometimes only one.”

The Super PACs are undermining the authority of parties, because it’s so much easier for a wealthy individual or interest group to dump a lot of money into a PAC that can be directed as the benefactor(s) wish. “Because they can give unlimited amounts to outside groups, they can have substantial influence without the hard work of raising money for a candidate, $2,500 check by $2,500 check, from other donors.”

The old worry was that the Super PACs would secretly be in collusion with the campaigns. The new worry is that the campaigns, and the parties, are being frozen out.

Every time I read something about What CU Hath Wrought, I think of the five Supreme Court justices who made this mess possible. These were Kennedy (who wrote the majority opinion), Roberts, Scalia, Thomas, and Alito.

It’s not unreasonable to assume that these five thought they were helping the Republican Party. But let’s assume that on some level they actually believed what they wrote in their opinions. Justice Kennedy wrote in his opinion,

“The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt. … The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. … The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the electorate will refuse “ ‘to take part in democratic governance’ ” because of additional political speech made by a corporation or any other speaker.”

All kinds of people knew this was hooey at the time of the decision. All kinds of people knew that this decision would have a deeply corrosive influence on campaigns and on American government itself. Is Justice Kennedy really so stupid that he believed what he wrote?


More Broccoli

Supreme Court

See also Greg Sargent.

1 Comment

They Were Against Judicial Activism Before They Were For It

Obama Administration, Supreme Court

Supreme Court Justice Antonin Scalia

A federal appeals judge has ordered the Department of Justice to clarify whether the President thinks the courts have a right to strike down a federal law, and to do so in writing by Thursday. Apparently our President was being uppity again in offering the opinion that finding the ACA unconstitutional would be unprecedented. And it would be, in the sense that to do so the justices would have to reverse some of their own precedents on points of law. But the mouth-breathers on the Right have decided the President doesn’t know that justices may find laws unconstitutional and are now defending Marbury v. Madision as the cornerstone of liberty.

By itself we might dismiss this as the Usual Clown Show. But Paul Campos writes at Lawyers, Guns & Money

A very distinguished professor of constitutional law — a man widely viewed as a conservative at least in legal academic circles — was asked recently to write an essay for a prominent conservative opinion magazine on some current legal controversies, including Citizens United decision and the ongoing litigation over same-sex marriage rights. He used the essay as an occasion to reiterate certain fundamental criticisms of the culture of judicial review, and in particular the mental habits that culture inculcates in judges.

The essay had gone through the editorial process and was in press when the Editor in Chief of the publication decided not to run the piece. Needless to say the author was both surprised and annoyed by this reversal, and had several conversations with the EIC about it. In sum, the EIC explained that it was now the policy — or what I believe in another time and place would have been referred to as “the line” — of the publication that it should not be encouraging basic criticisms of judicial review as a legal practice and cultural phenomenon “at this time.” In the course of these conversations it became very clear to the author that “at this time” meant “when this practice has once again become on the whole beneficial to the political goals of American conservatives.”

Now, add to this the influence of hard-right Super PACs. Thanks to Citizens United, the same puppet masters who gave us ALEC are using their money to elect right-wing judges at state level. Example

Like judges elsewhere, those in Florida remain rattled by what happened two years ago in Iowa, where three state Supreme Court justices who had upheld a ruling in favor of same-sex marriage lost their jobs after a vitriolic million-dollar campaign to unseat them — money coming almost entirely from outside the state. In the preceding decade, not a single dollar had reportedly been spent on Iowa’s high court elections.

So in order to keep their seats, judges up for re-election have to kiss right-wing ass. The Washington Post article linked in the paragraph above documents unprecedented amounts of out-of-state money being used to pick off state judges that conservatives don’t like.

And now the “line” is that maybe judicial activism isn’t such a bad thing after all. Stack enough courts with the “right” judges, and they can throw case law out the window and rule however they want.

James Fallows writes that people around the world are getting nervous about U.S. Courts. A reader from The Netherlands wrote,

And the reporting from the Supreme Court has been profoundly shocking – with conservative justices spouting tea party/talk radio talking points about broccoli and cell-phone mandates, and non-existent Cornhusker Kickbacks. Scalia’s ‘originalism’ is being demonstrated to be fundamentally hollow and partisan.

I am not an American and do not live in the US. But what is happening in the world’s most important and powerful democracy is shocking and frightening in the absolute, and does concern the rest of the world.

Fallows goes on to review recent cases, starting with Bush v. Gore, that showed the Court in bare-knuckles partisan mode. What the recent ACA hearing shows us is that at least some of the justices, Scalia especially, don’t even feel a need to pretend to be nonpartisan.

Certainly, past Courts have issued rulings with profound political implications; Dred Scott comes to mind. But for most of the 20th century the Court was a bulwark against the nation’s worst impulses. No more.

Update: See also Steve Benen writes about the federal judge’s demand from the DOJ:

This is not only ridiculous, it’s also an embarrassment to the federal judiciary at a time when the institution can least afford another setback in its credibility.

No matter what you think of president or this case, when powerful judges start acting like childish politicians, it’s cause for genuine concern about the integrity of our courts.

… and Kevin Drum:

Despite the fact that Kaersvang immediately acknowledged that courts can indeed strike down laws, the panel ordered her to “submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power.”

Seriously? These judges are acting like a middle school teacher handing out punishment to a student because of something her father said at a city council meeting the night before. I’m a little hard pressed to finish up this post on quite the right note of jaw-droppitude, but luckily an attorney friend from the South just emailed me about this. Here’s his take:

This is meant to embarrass the President. Full stop. Jesus, this is getting scary. It just seems like all out partisan war brought by the Republicans from all corners of the Government. They want to push it as far as they can. And then further. It’s incredibly destructive.


Eat It, Scalia

Health Care, Supreme Court

I haven’t had a chance to react to this week’s Supreme Court drama. So let me just link to some other reactions.

Dahlia Lithwick was reasonably upbeat after the first day of arguments. Not so by the end of it. “It’s not a good day for the Affordable Care Act,” she writes. “This morning’s argument requires the justices to start from the assumption that the court will strike down the individual mandate (the issue argued exhaustively yesterday) and asks them to pick over the carcass, to determine what, if anything, survives.”

The most illuminating comment is by Charles Pierce.

I think Justice Antonin Scalia isn’t even really trying any more….He hung in there as long as he could, but he’s now bringing Not Giving A Fuck to an almost operatic level….

…It is plain now that Scalia simply doesn’t like the Affordable Care Act on its face. It has nothing to do with “originalism,” or the Commerce Clause, or anything else. He doesn’t think that the people who would benefit from the law deserve to have a law that benefits them. On Tuesday, he pursued the absurd “broccoli” analogy to the point where he sounded like a micro-rated evening-drive talk-show host from a dust-clotted station in southern Oklahoma. And today, apparently, he ran through every twist and turn in the act’s baroque political history in an attempt to discredit the law politically, rather than as a challenge to its constitutionality.

See also John Cole, who has a long roundup of many other reactions. Worth reading.

Update: Krugman

Given the stakes, one might have expected all the court’s members to be very careful in speaking about both health care realities and legal precedents. In reality, however, the second day of hearings suggested that the justices most hostile to the law don’t understand, or choose not to understand, how insurance works. And the third day was, in a way, even worse, as antireform justices appeared to embrace any argument, no matter how flimsy, that they could use to kill reform.

We’re been calling the Roberts court “corporatist,” but the weird thing here is that the insurance industry wants the mandate. This reveals at least some of them to not be so much pro-corporation as pro-Republican Party.

Anyone else who doesn’t get why the broccoli defense is stupid needs to read Krugman’s entire column.

Update:Justice Scalia is an oxymoron.”


SCOTUS and Tea Leaves

Health Care, Supreme Court

The oral arguments over the Affordable Care Act are over, and I’ve been cruising around getting reactions. First, there’s general agreement that it be be a divided decision, and the swing votes will belong to Roberts and Kennedy. No surprise there, I don’t think.

Today the Court heard arguments about “severability,” or whether the entire law has to fall if the individual mandate is struck down. And it appears there may be some awareness on the court that if the mandate goes, and the ACA stays, somebody’s got to pick through the whole beast and revise the thing. The Court doesn’t want that job, but they appeared skeptical that Congress is up to it, either.

David Savage of the Los Angeles Times writes that the justices seem to be leaning toward striking down the whole law, but other writers are not that pessimistic, or optimistic as the case may be.

Lyle Denniston of SCOTUSblog writes,

The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.

The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia — first, that it “just couldn’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.” Much of the lively argument focused on just what role the Court would more properly perform in trying to sort out the consequences of nullifying the requirement that virtually every American have health insurance by the year 2014.

There is widespread agreement that the decision could define the Roberts court. This has caused some people to speculate that Roberts may vote to uphold the act just so he can’t be accused of being a right-wing tool. But if he’s the right-wing tool many assume him to be, he won’t care what anyone thinks. You can’t beat being a Supreme Court Chief Justice for job security, after all.

I’m making no predictions. It could go either way.

James Carville argues that if the Supremes flush Obamacare, politically this could work out better for the Dems than for Republicans. Carville says,

“Just as a professional Democrat, there’s nothing better to me than overturning this thing 5-4 and then the Republican Party will own the health care system for the foreseeable future. And I really believe that. That is not spin,” Carville said.

David Frum agrees that a loss for Republicans in the Court would present a bigger political challenge to them than a win. And that’s because Republicans have nothing ready to replace the ACA. After all this time, they’re still hauling out the same loser arguments about tort reform and selling insurance across state lines.

My uninformed guess: the ACA prevails, and probably not by a narrow margin.

What then?

What then is that healthcare comes roaring back as a campaign issue, to which Republicans have failed to provide themselves an answer. Because of the prolonged economic downturn, more Americans than ever have lost—or are at risk of losing—their health coverage. Many of them will be voting in November. What do Republicans have to say to them?

Make no mistake: If Republicans lose in the Supreme Court, they’ll need an answer. “Repeal” may excite a Republican primary electorate that doesn’t need to worry about health insurance because it’s overwhelmingly over 65 and happily enjoying its government-mandated and taxpayer-subsidized single-payer Medicare system. But the general-election electorate doesn’t have the benefit of government medicine. It relies on the collapsing system of employer-directed care. It’s frightened, and it wants answers.

“Unconstitutional” was an answer of a kind. But if the ACA is not rejected as “unconstitutional,” the question will resurface: if you guys don’t want this, want do you want instead?

In that case, Republicans will need a Plan B. Unfortunately, they wasted the past three years that might have developed one. If the Supreme Court doesn’t rescue them from themselves, they’ll be heading into this election season arguing, in effect, Our plan is to take away the government-mandated insurance of millions of people under age 65, and replace it with nothing. And we’re doing this so as to better protect the government-mandated insurance of people over 65—until we begin to phase out that insurance, too, for everybody now under 55.

But if the ACA is struck down, won’t the Republicans still be under the gun to crank out an alternative? Well, maybe not until after the election.

See also The Rock Biter Theory Of Health Care Reform Legislation.

Update: See Steve Kornacki, “The Debate the GOP Can’t Have.”


GOP for Individual Mandate Before They Were Against It

Health Care, Republican Party, Supreme Court

Awesome segment by Rachel Maddow last nignt –

Visit for breaking news, world news, and news about the economy

Maddow documents that way back when Republicans were battling the evil “Hillarycare” instead of the evil “Obamacare,” Republicans pushed an individual mandate to purchase health insurance as a solution for soaring health care costs. And this includes some of the same Republicans who today declare that the individual mandate is the end of liberty as we know it. If you are short of time you can skip to the 5 minute mark, right before the juicy bits start.

Several news stories say that the justice’s questioning today suggests the conservatives on the Court are going to end the mandate. Steve Kornacki says ain’t necessarily so. Ezra Klein is less optimistic.


The Supremes Will Decide

Health Care, Obama Administration, Supreme Court

This morning the Supreme Court agreed to hear an appeal of one of the health care reform challenges. Adam Liptak writes for the New York Times:

The Supreme Court agreed to hear appeals from just one decision, from the United States Court of Appeals for the 11th Circuit, in Atlanta, the only one so far striking down the mandate. The decision, from a divided three-judge panel, said the mandate overstepped Congressional authority and could not be justified by the constitutional power “to regulate commerce” or “to lay and collect taxes.”

The appeals court went no further, though, severing the mandate from the rest of the law.

On Monday, the justices agreed to decide not only whether the mandate is constitutional but also whether, if it is not, how much of the balance of the law, the Patient Protection and Affordable Care Act, must fall along with it.

SCOTUS will hear arguments in March and will probably hand down a decision in June, smack in the middle of the general election campaigns.

Ezra Klein has a backgrounder on the legal issues in the case.

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