Category Archives: Supreme Court

Appeals Court Reinstates Same-Sex Marriage Bans

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Yesterday a federal appeals court in Cincinnati reversed lower-court decisions that voided same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee.

I believe this is the first genuine break in the streak of court decisions that have struck down same-sex marriage bans. Just yesterday I ran into a list of 22 states in which either federal courts or state supreme courts had voided such bans. The site Freedom to Marry keeps an updated account of where marriage equality stands in the states. Same-sex marriage currently is legal in 32 states, and courts had cleared the way for marriage equality in several other states.

Lyle Denniston at SCOTUSblog has the most detailed account of yesterday’s decision, by the Sixth Circuit Court of Appeals, I’ve seen so far. The primary difference between yesterday’s decisions and the previous ones is that the Sixth Circuit upheld the states’ sovereignty on matters of marriage, and said federal courts had no bearing to countermand a state decision on marriage. The Sixth also said there is no right to marry. And this sets up an interesting contrast in legal thought.

As I understand it, some of the judges who have struck down the bans view marriage as a right of U.S. citizens that states cannot infringe. Others (see especially Judge Richard Poster’s very readable argument) basically say that the states’ reasons for banning same-sex marriage are irrational and blatantly discriminatory. Judge Posner wrote,

To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation.

As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.

The Sixth Circuit decision directly disagrees with Posner on some points. Posner said that “tradition” per se carries no weight, that delaying to change laws because there may be some unforeseen bad consequence to the law is not a valid excuse, and that there is no evidence children are harmed by being raised by same-sex parents. The Sixth apparently disagrees with all of those points, saying the states have a legitimate role in protecting children and that states have a right to “wait and see’ what happens elsewhere before enacting a change themselves. Also unlike Posner, the Sixth denied there was any evidence the law was based on animus to homosexuals.

Of course not. And jokes involving the President and watermelons are not racist. Sure.

Lyle Denniston writes that the Sixth also denies that homosexuals are a “discrete class deserving of special constitutional protection as historic targets of discrimination.”

The most obviously flimsy part of this decision is that it also denies that states have any obligation to recognize same-sex marriages of other states, which seems to me to fly right in the face of the Full Faith and Credit clause of Article IV Section 1.

Several articles today say that this decision almost certainly sets up a Supreme Court test. Justice Ruth Bader Ginsburg had already said awhile back that if the Sixth upheld the bans, bring it on, dudes. Well, not those exact words. How the Court might decide is uncertain, especially after the U.S. v. Windsor decision that struck down the Defense of Marriage Act (5-4, Usual Suspects with Kennedy swinging toward the liberals). I can see Justice Roberts having to decide which outcome would stir up the bigger hornets’ nest.

Update: Kenneth Jost, an adjunct professor of law at Georgetwon, rips the Sixth Circuit Court’s decision apart, and says the badly argued decision may prove to be a “blessing in disguise” for advocates of marriage equality.

The Court Ladies Are Pissed

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Adam Liptak at the NY Times:

In a decision that drew an unusually fierce dissent from the three female justices, the Supreme Court sided Thursday with religiously affiliated nonprofit groups in a clash between religious freedom and women’s rights.

The decision temporarily exempts a Christian college from part of the regulations that provide contraception coverage under the Affordable Care Act.

The court’s order was brief, provisional and unsigned, but it drew a furious reaction from the three female members, Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan. The order, Justice Sotomayor wrote, was at odds with the 5-to-4 decision on Monday in Burwell v. Hobby Lobby Stores, which involved for-profit corporations.

“Those who are bound by our decisions usually believe they can take us at our word,” Justice Sotomayor wrote. “Not so today.”

The court’s action, she added, even “undermines confidence in this institution.”

Preach it, Sister Justice Sonia! See SCOTUSblog for more detailed explanation. Sister Justice Sonia wrote a 15-page dissent that probably is still smoking. See also Corporations race into Ginsburg’s ‘minefield’ to claim post-Hobby Lobby religious exemptions.

By Their Tweets Ye Shall Know Them. People who are celebrating the Hobby Lobby and subsequent decisions do seem to have one thing in common, which is huge disgust at female sexuality. No surprise.

We Don’t Call ‘Em American Taliban for Nothing

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It strikes me that the right-wing Christianists celebrating the Hobby Lobby decision are an unimaginative crew. This might be expected of people who combine dogmatic literalism with a myopic inability to perceive the difference between their own culturally induced bigotries and God. The degree to which they are shooting themselves in the foot is revealed in a New Yorker commentary by Steve Coll, Dean of the Graduate School of Journalism at Columbia University in New York.

Tehrik-e-Taliban, the Pakistani Taliban, is a closely held, profit-making enterprise organized on religious principles. One of its principles, announced as public policy in July, 2012, is that children should not be inoculated against polio, because the vaccines violate God’s law. So sincere are the Taliban’s religious beliefs that its followers have assassinated scores of public-health workers who have attempted to administer polio vaccines in areas under Taliban control or influence. …

… If the Pakistani Taliban, aided by clever lawyers, organized a closely held American corporation, and professed to run it on religious principles, might its employees be deprived of insurance coverage to inoculate their children against polio? And would the Supreme Court, by the five-to-four decision issued on Monday in Burwell v. Hobby Lobby Stores and in Conestoga Wood Specialties v. Burwell, endorse such a move?

Coll acknowledges that before this could happen the Taliban would have to jump through some challenging hoops, such as their status in the U.S. as a terrorist organization. And the part about assassinating people would touch on other areas of law, unrelated to the Affordable Care Act, that might get them into trouble even in “murder at will” states like Florida. However, maybe if they came out for open carry … well, that’s another argument.

Here’s the meat of Coll’s argument:

Justice Samuel Alito, writing for the Court’s conservative majority, sought to evade such thought exercises by predicting, without evidence, that there will not be “a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions.”

Why not? Is it because the justices do not intend to extend their reasoning to companies that hold religious views less proximate to their own Christian beliefs? Or because the judges believe that they can enforce what they imagine to be a rational or permissible resistance to reproductive rights for women, while blocking what they might see as irrational resistance to transfusions and vaccines?

In other words, as Dahlia Lithwick argued the other day, either the justices intend to show favoritism to “mainstream” (in their minds) Christianity, denying other religions the same privileges, or they think women’s reproductive health is a less serious medical issue than, for example, blood transfusions. There really is no other way to interpret Alito’s argument.

The Right argues that these medical procedures would not be blocked, because the employees could still obtain them and pay for them out of their own pockets. But here in Real World Land, the cost of such things could be out of reach, especially for employees making minimum wage. Add several children, and you might as well tell the employees they can buy a gold-plated yacht while they’re at it. Also, it’s not just the Taliban with issues about vaccines, is it?

And here’s the central issue:

Perhaps the Supreme Court’s majority cannot fully imagine that religiously motivated litigants—Muslim, Christian Scientist, Hindu, or other—as qualified and as American as the Hobby Lobby owners might ultimately use Monday’s ruling to enforce beliefs far outside of the decades-long campaign of Christian evangelicals and Catholics to limit the reproductive rights of women. If so, that is another failure of their reasoning, one that exposes what really seems to have gone on in this decision: four longtime adherents to the deeply rooted conservative movement to limit or ban abortion in the United States, joined by a fifth willing to defer to them, saw in the Hobby case an opportunity to advance their cause incrementally, and they reasoned to achieve that end—not, as their opinion claims, to construct a sustainable framework of religious resistance to public-health laws.

The Right is perpetually screaming that we are about to be placed under sharia law. Sharia law, as I understand it, is interpreted many different ways, and I don’t want to join into demonizing it here. But the Right doesn’t seem to appreciate that the Hobby Lobby decision potentially opens the door to exactly this — a company with Muslim owners could potentially enforce its Islamic views on the employees.

The pre-Hobby Lobby understanding of separation of church and state would have prevented sharia law from being involuntarily applied to non-Muslims in the U.S. That’s not quite so clear now. It seems to me that the only way the HL decision wouldn’t open the door to all kinds of religious impositions on employees is if the courts set themselves up as arbiters of what religious beliefs are legitimate and which not, First Amendment be damned.

I like this bit:

Because campaigners against reproductive rights have successfully mainstreamed their views within institutions like the Supreme Court, those views no longer seem radical even to many of their opponents. The Taliban have not similarly legitimized their philosophy because they are so indiscriminately violent and repressive, among other reasons. (Some religiously motivated radicals have assassinated abortion providers in the United States, but the gunmen are not commonly referred to here as terrorists.)

I argue from time to time that the only difference between our domestic right-wing extremists — and not just the religious ones — and Islamic terrorists is in degree, not in kind. Of course people who bomb abortion clinics or assassinate doctors — or even threaten to assassinate doctors — are terrorists. Here’s the dictionary definition of “terrorism”:

the use of violent acts to frighten the people in an area as a way of trying to achieve a political goal
the systematic use of terror especially as a means of coercion

So, yes, many abortion clinic “protesters” are terrorists. But we can’t call them terrorists because their opinions have been “mainstreamed.” A group doing exactly the same thing to banks that the Fetus People do to abortion clinics would be called terrorists. No question. So clinic protesters are allowed to get away with terrorism because some courts, and much of the public, sympathize with their cause, not because they aren’t actually terrorists.

Bottom line, extremist right-wing dogmatic Christians get a pass, because they are “mainstream.” I suspect Islamic extremism got its first footholds in the Middle East the same way.

Buffer Zones Are Gone

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SCOTUS has found Massachusetts “buffer zones” around abortion clinics to be unconstitutional. This doesn’t surprise me. I am, however, stunned to learn this was a unanimous decision. Some guy actually is arguing that liberals won.

True, Roberts’s opinion, joined by the court’s four doubtless relieved liberals, struck down the buffer as a violation of the free-speech rights of pro-life activists who seek to converse with women who might be seeking abortions. But the crucial element in the opinion — the one that got the liberals on board and enraged the conservatives — is that Roberts said the law was neutral with respect to the content of speech as well as the viewpoint of the speakers. That conclusion protected the possibility of other laws protecting women seeking abortions that pay more attention to what Roberts said was missing here, namely proof that the law was narrowly tailored. For the liberals, that was enough to get on board.

I’m reading that Don Scalia is furious with the majority opinion, which apparently stopped short of declaring open season on abortion providers.

I haven’t had time to wrap my head around this. However, I do think that if the anti-abortion “protesters” were handled like the public nuisances, dangerous bullies and sometimes terrorists they actually are, we wouldn’t need “buffer zones.” As I wrote in my book,

Let’s try a thought experiment: Let’s say a number of people decide that banks are evil. This group then targets banks to picket. But they don’t stop with picketing. They chain themselves to doors. They try to stop bank customers from entering. They yell at people to keep their money at home and not let it mingle with the infernal financial system. They set up websites displaying photos and names of bank employees and where they live, hinting that maybe somebody could just eliminate these people. Banks are vandalized and even bombed. Some bank managers are assassinated.

Now, how many nanoseconds would pass before law enforcement and the FBI call this movement domestic terrorism and shut it down? No one outside the anti-bank cult would stand for this. But when the context involves women, sex, and religion instead of money and business, somehow, it’s different.

It’s only because the well-being and concerns of women are not taken seriously that the buffer zones were necessary.

See also “Do what we tell you to do, or we will kill you” and an extended excerpt from my book here.

Clarence Thomas and Stockholm Syndrome.

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Charles Pierce calls Justice Clarence Thomas “the last Confederate.” I hadn’t realized the Justice has a “thing” about the 14th Amendment and thinks it has been incorrectly applied to deny states the power to trample on the rights of U.S. citizens.

Yes, that 14th Amendment. The one that ensured people of color were citizens and stopped the “Black Codes.” The one that has been the primary foundation of much civil rights case law. I started to call this blog post “Is Clarence Thomas trying to prove Cliven was right?” but decided it was a bit too incendiary. But were the Black Codes okay with you, Justice Thomas?

Now that the Court has said it is perfectly fine to expect citizens to sit through prayers to Jesus at a town council meeting — the Court’s three Jewish members and just one of the Catholics disagreed — it turns out Justice Thomas thinks the establishment clause shouldn’t be binding on the states at all. So let Louisiana make Christianity the state religion and tell the Buddhist public school student to suck it up.

I was not aware, however, that several years ago Justice Thomas wrote a dissenting opinion that said states have the right to determine qualifications of senators and representatives elected to the federal Congress.

Emphasizing that “the Federal Government’s powers are limited and enumerated,” Justice Thomas said that “the ultimate source of the Constitution’s authority is the consent of the people of each individual state, not the consent of the undifferentiated people of the nation as a whole.” Consequently, he said, the states retained the right to define the qualifications for membership in Congress beyond the age and residency requirements specified in the Constitution. Noting that the Constitution was “simply silent” on the question of the states’ power to set eligibility requirements for membership in Congress, Justice Thomas said the power fell to the states by default. The Federal Government and the states “face different default rules,” Justice Thomas said. “Where the Constitution is silent about the exercise of a particular power — that is, where the Constitution does not speak either expressly or by necessary implication — the Federal Government lacks that power and the states enjoy it.”

That has been the basic argument since the Constitutional Convention began, and every time that it has been litigated — in the debates over ratificaton of the Constitution, in the battle over the tariff with South Carolina, when Webster stood up to Hayne, when John C. Calhoun fashioned his doctrine of nullification out of it, when the nation tore out its own guts between 1860 and 1865, and, most recently, when “massive resistance” became the strategy through which white supremacy sought to break the civil rights movement — it has failed. It was the basis for the Reconstruction amendments, especially the 14th, which Thomas curiously elides in both his term-limits dissent and his government-prayer concurrence.

So sad.

Is Scalia Getting Senile?

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Back in 2012 Charles Pierce wrote that Justice Antonin Scalia had started his retirement without bothering to leave the bench.

It’s been clear for some time now that he’s short-timing his job on the Supreme Court. The job bores him. All these inferior intellects coming before him. All those inferior intellects on the bench with him, now with some other Catholics who aren’t even as Catholic as he is, Scalia being the last living delegate who attended the Council of Trent. Inferior Catholics with inferior minds. What can a fellow do? He hung in there as long as he could, but he’s now bringing Not Giving A Fuck to an almost operatic level.

Scalia long gave up on paying lip service to impartiality or even consistency with his own past opinions.

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. (What in hell does the “Cornhusker Kickback” — yet another term of art that the Justice borrowed from the AM radio dial — have to do with the severability argument? Is Scalia seriously making the case that a banal political compromise within the negotiations from which bill eventually is produced can affect its ultimate constitutionality? Good luck ever getting anything passed if that’s the standard.) He’s really just a heckler at this point. If he can’t do any better than that, he’s right. Being on the court is a waste of his time.

Pierce speculates that Scalia is bored with being on the SCOTUS. Otherwise, why would a man at least bright enough to achieve this level of success in a legal career say things this stupid?

But now Scalia has made an blunder that observers are calling shocking and even unprecedented, misstating basic facts about one of his own past decisions.

The Court — although not Justice Scalia personally, I don’t think — issued a rewritten version of his dissent. Here’s the gist of the matter —

Scalia was dissenting from a 6-2 decision upholding the Environmental Protection Agency’s authority to regulate cross-state coal pollution. To help back up his judgment, he cited a 9-0 opinion he wrote in 2001 called Whitman v. American Trucking Association. But the EPA’s stance in that case was the exact opposite of what Scalia said it was in Tuesday’s opinion.

It’s not the first time a justice has erred. In July 2008, a majority opinion written by Justice Anthony Kennedy mischaracterized federal law when ruling unconstitutional the death penalty for raping a child. The opinion argued that the death penalty for such a crime existed in just six states and not on a federal level. That claim was false, as the New York Times reported afterward: Congress had passed a law two years earlier saying child rape was subject to the military death penalty. The Court subsequently issued a corrected opinion with a footnote noting the change, unlike this week when its correction came surreptitiously and without notice.

There is speculation Scalia’s clerks actually wrote the dissent and the justice didn’t bother to read it first, but if that’s the case it’s a good argument that Charles Pierce was right back in 2012 — Scalia is retired, and he just keeps acting out the Suppreme Court Justice thing for his own amusement.

But I wondered about senility awhile back, when he made his infamous “moral feelings” comment —

While speaking at Princeton University on Monday, U.S. Supreme Court Justice Antonin Scalia defended his legal writings after a gay student asked him “why he equates laws banning sodomy with those barring bestiality and murder,” according to the Associated Press.

“I don’t think it’s necessary, but I think it’s effective,” Scalia said. He added that legislative bodies can place bans on what they find to be immoral.

“It’s a form of argument that I thought you would have known, which is called the ‘reduction to the absurd,’” Scalia told Duncan Hosie, the freshman student who asked the question. “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

Beside the fact that this makes no sense, what do “moral feelings” have to do with law? But it’s been obvious for a while that Scalia doesn’t base his decisions on law, but on his own biases, and then he constructs a legal opinion to back up his biases. He pretty much admitted this in a Charlie Rose interview awhile back.

Corrupt, yes. A disgrace to the bench, yes. An opinionated blowhard, no question. But that doesn’t rule out the possibility of senility, too. No one else is saying this, but I’m saying it. It needs to be considered. Scalia is 78, I think, which means it is possible he could sit on the Court for a few more years, getting more and more demented, and causing more and more damage.

People Who Need to Retire: Antonin Scalia

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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!)

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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

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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

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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?