Browsing the archives for the Supreme Court category.


Buffer Zones Are Gone

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abortion, Supreme Court

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.

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Clarence Thomas and Stockholm Syndrome.

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Supreme Court

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.

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Is Scalia Getting Senile?

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Supreme Court

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.

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People Who Need to Retire: Antonin Scalia

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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.

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The Decision (Update: It’s Saved!)

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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.

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Antonin Throws a Fit

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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.

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When Smart People Are Really Stupid

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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?

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More Broccoli

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Supreme Court

See also Greg Sargent.

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They Were Against Judicial Activism Before They Were For It

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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.

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Eat It, Scalia

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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.”

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