In January, Supreme Court Justice Antonin Scalia accused the U.S. Environmental Protection Agency of “high-handedness.” He was just getting warmed up.
Over the next 3 1/2 months, Scalia asked whether federal immigration policy was designed to “please Mexico,” fired off 12 questions and comments in 15 minutes at a government lawyer in a case involving overtime pay, and dismissed part of Solicitor General Donald Verrilli’s defense of President Barack Obama’s health-care law as “extraordinary.”
Scalia’s tone this year, particularly in cases involving the Obama administration, is raising new criticism over the temperament of a justice who has always relished the give-and-take of the Supreme Court’s public sessions. Some lawyers say Scalia, a 1986 appointee of Republican President Ronald Reagan, is crossing the line that separates tough scrutiny from advocacy.
“His questions have been increasingly confrontational,”said Charles Fried, a Harvard Law School professor who served as Reagan’s top Supreme Court advocate. While the justice has always asked “pointed” questions, in the health-care case “he came across much more like an advocate.”
Scalia’s approach is fueling the perception that the biggest cases this term, including health care, may be influenced by politics, rather than the legal principles that he and other justices say should be their guide. A Bloomberg News poll in March showed that 75 percent of Americans think the court’s decision on the 2010 law will be based more on politics than on constitutional merit.
“Someone who had just tuned into the health-care argument might get the impression that the court is a much more partisan institution than it actually is,” said David Strauss, a constitutional law professor at the University of Chicago Law School.
The week after the health-insurance argument, Obama showed a willingness to make the court an issue in his re-election campaign, saying a ruling striking down the law would be“judicial activism” by “an unelected group of people.” The court will probably rule by the end of June.
Scalia, 76, declined to comment for this story, said Kathy Arberg, a Supreme Court spokeswoman.
The justice has never shied away from controversy. He once wrote that a colleague’s reasoning in an abortion case “cannot be taken seriously.” When the court expanded the rights of prisoners at the U.S. naval base in Guantanamo Bay, Cuba, he dissented by saying the ruling “will almost certainly cause more Americans to be killed.”
In 2009, he told a college student she had posed a “nasty, impolite question” when she asked whether book tours by the justices undermined their case for banning camera coverage of arguments. In 2006, he flicked his hand under his chin, using a dismissive gesture he said was Sicilian, to show his disdain for a reporter’s question.
In the courtroom, he is quick with one-liners, drawing laughter more frequently than any other justice during the court’s current nine-month term, according to DC Dicta, a blog that tracks the court.
Of late, Scalia’s most pointed remarks have come at the Obama administration’s expense.
In January, he directed his fire at Malcolm Stewart, a Justice Department attorney. Stewart was defending the EPA’s use of administrative compliance orders that demand an end to alleged environmental violations, in many cases insisting that recipients restore their land to its previous state.
‘That’s Very Nice’
Scalia made his contempt clear after Stewart said that people and companies could seek to change any “infeasible”requirements.
“Well, that’s very nice,” the justice said. “That’s very nice when you’ve received something called a compliance order, which says you’re subject to penalties” of $32,500 per day.
When Stewart said the EPA had modified the order at issue, dropping a requirement that an Idaho couple replant vegetation on their property, Scalia scoffed again. “It shows the high-handedness of the agency, it seems to me, putting in there stuff that is simply not required,” he said.
The court unanimously ruled against the EPA in March, giving landowners more power to challenge compliance orders in court.
With health care, Scalia’s primary target was Verrilli, the administration’s top Supreme Court lawyer. Defending the law’s requirement that Americans get insurance or pay a penalty, the solicitor general argued that uninsured people often receive care, even if they can’t pay for it, because of the “social norms to which we’ve obligated ourselves.”
“Well, don’t obligate yourself to that,” Scalia said.
Later, Scalia called one strand of the government’s defense– its contention that Congress could legally enact the law as a tax — “extraordinary.”
The following day, he mocked an assertion by another Justice Department lawyer, Edwin Kneedler, as the court considered what would happen to the rest of the law should a key provision mandating that most Americans obtain insurance be declared unconstitutional. Kneedler said the court should look at “the structure and the text” of the 2,700-page statute.
“Mr. Kneedler, what happened to the Eighth Amendment?”Scalia asked, referring to the provision of the U.S. Constitution that bars cruel and unusual punishment. “You really want us to go through these 2,700 pages?”
At times during the health-care debate, Scalia took to stating his position, rather than asking questions. He all but declared that he would vote to invalidate the whole law, not just the insurance mandate. “My approach would say if you take the heart out of the statute, the statute’s gone,” he said.
In a Labor Department case that concerns claims for overtime pay by drug-industry salespeople, lawyer Stewart urged the court to side with the employees and defer to the department’s interpretation of a federal wage-and-hour law.
Scalia, who directed a dozen questions and comments at Stewart, criticized the department for laying out that position in court filings, known as amicus briefs, rather than through formal rulemaking.
“This is part of a regular program that the agency has now instituted, to run around the country and file amicus briefs –is that it?” Scalia asked — again calling the approach“extraordinary.”
Scalia described as “extraordinary” yet another administration position, this time when Verrilli urged the court to strike down Arizona’s illegal-immigration law. Scalia bristled when the solicitor general said “we have to have the cooperation of the Mexicans,” something Verrilli said the federal government could best secure without state interference.
“So we have to enforce our laws in a manner that will please Mexico?” Scalia said. “Is that what you’re saying?”
Not everyone thinks that Scalia has gone too far. Ilya Shapiro, an opponent of the health-care law who attends eight to 10 arguments each term, says he sees no change in Scalia’s approach.
“He’s sarcastic, and he goes right to the heart of the weakness of the advocate who’s in front of him,” said Shapiro, a senior fellow at Washington-based Cato Institute, which advocates for limited government.
On health care, Scalia was simply trying to “express his exasperation with the government’s assertion of power,” he said.
To other Supreme Court lawyers, Scalia’s questions show a troubling pattern. Rather than merely probing legal arguments, he has served as a “partisan cheerleader,” said Doug Kendall, president of the Constitutional Accountability Center in Washington, which supports the administration on health care and immigration.
“It’s disturbing to see a justice use oral argument as a platform for expressing the talking points that you hear each night on Fox News,” Kendall said. “I can’t think of a serious question that he posed in either argument suggesting that he was open to have his mind changed.”
By: Greg Stohr, Bloomberg News, May 15, 2012
Eduardo Saverin, the co-founder of Facebook whose falling out with the company and its CEO Mark Zuckerberg was the subject of the 2010 blockbuster The Social Network, renounced his US citizenship last week, and the right has wasted no time labeling him a hero.
Saverin, who owns a roughly four percent stake of Facebook, announced that he was expatriating last week, just in time to avoid paying a federal capital gains tax on the fortune heading his way when the social site files its IPO.
Forbes Magazine, the conservative-leaning and business friendly magazine, ran an article with the headline “For De-Friending The U.S., Facebook’s Eduardo Saverin Is An American Hero.” John Tamny writes:
Saverin’s departure is also a reminder to politicians that while they can obnoxiously decree what percentage of our income we’ll hand them in taxes, what they vote for won’t necessarily reflect reality. Indeed, as evidenced by Saverin’s renunciation, tax rates and collection of monies on those rates are two different things. Assuming nosebleed rates of taxation were a driver of Saverin’s decision, politicians will hopefully see that if too greedy about collecting the money of others, they’ll eventually collect nothing.
Tamny seems to be convinced that Saverin’s departure will open the floodgates for dozens of US executives, investors and other wealthy businessmen who have made fortunes off of stocks and bonds to dramatically renounce their citizenship, break through the shackles of big government and book a one-way ticket to wherever in an attempt to hold on to every last penny they’ve earned. What Forbes and The Heritage Foundation ignore is that the capital gains tax is at a historically low rate, and even proposals to increase it slightly would still fall well short of approaching the rate during the 1970s.
Saverin’s decision to flee the United States is also remarkably shortsighted. As Farhad Manjoo notes on PandoDaily today, Saverin’s life story in particular is one that is quintessentially American.
By: Adam Peck, Think Progress, May 14, 2012
Family Research Council President Tony Perkins, appearing onCBS’ “Face the Nation,” strongly disagreed with the Kentucky Republican’s choice of words.
“I don’t think this is something we should joke about,” Perkins said. “We are talking about individuals who feel very strongly one way or the other, and I think we should be civil, respectful, allowing all sides to have the debate…. I think this is not something to laugh about. It’s not something to poke fun at other people about. This is a very serious issue.”
“People in this country, no matter straight or gay, deserve dignity and respect. However, that doesn’t mean it carries on to marriage,” Priebus said. “I think that most Americans agree that in this country, the legal and historic and the religious union marriage has to have the definition of one man and one woman.”
Paul made his remarks during a meeting of the Faith and Freedom Coalition in Iowa on Friday.
“The president recently weighed in on marriage and you know he said his views were evolving on marriage. Call me cynical, but I wasn’t sure his views on marriage could get any gayer,” he said, drawing laughter from the audience.
Same-sex marriage surged to the forefront of political debate after Obama declared his support last week.
In an interview with ABC News’ Robin Roberts — hastily arranged to quiet the fallout from Vice PresidentJoe Biden’s comments days earlier that he was “absolutely comfortable” with same-sex marriage — Obama said: “At a certain point, I’ve just concluded that for me personally, it is important for me to go ahead and affirm that I think same-sex couples should be able to get married.” He also said it was “the golden rule, you know? Treat others the way you’d want to be treated.”
In response, likely Republican presidential nominee Mitt Romney reiterated his belief that “marriage is a relationship between one man and one woman.”
The libertarian view, he told Fox News, is, “Stay out of people’s lives. I would like the state to stay out of marriage…. Let two people define marriage.”
By: Morgan Little, The Los Angeles Times, May 13, 2012
“Idelogical Extremism”: Former Republican Senator Hagel Says Reagan Would Not Identify With Modern GOP
Last week, former Sen. John Danforth (R-MO) told ThinkProgress that his party was becoming “increasingly inconsequential” and “intolerant” following the defeat of veteran Sen. Dick Lugar (R-IN). Now, former Sen. Chuck Hagel (R-NE) has also taken aim at his party for its ideological extremism.
Hagel — who served two terms in the Senate, between 1997 and 2009 — told Foreign Policy magazine on Friday that the Republican Party “is in the hands of the right, I would say the extreme right, more than ever before.” He observed:
Reagan wouldn’t identify with this party. There’s a streak of intolerance in the Republican Party today that scares people. Intolerance is a very dangerous thing in a society because it always leads to a tragic ending. Ronald Reagan was never driven by ideology. He was a conservative but he was a practical conservative. He wanted limited government but he used government and he used it many times. And he would work with the other party. …
Now the Republican Party is in the hands of the right, I would say the extreme right, more than ever before. You’ve got a Republican Party that is having difficulty facing up to the fact that if you look at what happened during the first 8 years of the century, it was under Republican direction. …
The Republican Party is dealing with this schizophrenia. It was the Republican leadership that got us into this mess. If Nixon or Eisenhower were alive today, they would be run out of the party.
Hagel hopes the pendulum will eventually swing back to moderation for the GOP, but warned that it is unlikely to happen in this election, noting that “what latitude [Mitt] Romney has to shape the party as we go into the election is somewhat limited because of the primary he’s had to run.”
It again bears mentioning that like Lugar and Danforth, Hagel was himself a solid conservative in the Senate earning a lifetime 85 percent rating with the American Conservative Union. The fact that even solid conservatives like these men — or Reagan — are not conservative enough to fit in the modern Republican Party is an indication of just how far right the GOP has drifted.
By: Josh israel, Think Progress, May 14, 2012
Republicans say they’re eager for the presidential campaign to turn away from “distractions” and focus instead on the economy. Someone should warn them that if they’re not careful, they might get their wish.
It is true that voters’ unhappiness with high unemployment and slow growth poses a challenge for President Obama as he seeks reelection. But for Mitt Romney and the GOP to take advantage of this potential opening, they’ll have to do more than chant the word “economy” like a mantra. They have to make the case that their policies will work better than Obama’s.
And what might Romney’s proposed economic policies be? Why, they’re basically the same as those of George W. Bush, only worse.
Just as Obama owns the recession and the slow recovery, Bush owns the financial crisis that sent the slumping economy over a cliff. But for all his sins — the gratuitous tax cuts, the off-budget wars, the defiance of basic arithmetic — Bush at least demonstrated a certain empathy for Americans who struggle to make ends meet. One of his budget-busting initiatives, for example, was expanding Medicare to cover prescription drugs without worrying about how this much-needed new benefit would be paid for.
It’s safe to predict that Romney would never make such a gesture out of compassion for the beleaguered middle class. To this day, he refuses to take back his criticism of Obama for bailing out General Motors and Chrysler — even though letting the companies fail would have meant the extinction of the U.S. auto industry and the elimination of hundreds of thousands of jobs.
It is a measure of Romney’s ideological stubbornness that, even with Chrysler rebounding under new ownership and GM reporting record profits, he still insists that his view — let the companies go bankrupt so the “creative destruction” of capitalism could work its magic — was correct.
Romney is something of an expert on creative destruction, I guess, having orchestrated a good deal of it while running the private-equity firm Bain Capital. The Obama campaign recently released an ad about one of Bain’s less successful acquisitions, a small steel mill in Kansas City called GST Steel.
The company, which was more than 100 years old, failed after a decade under Bain’s ownership; GST’s 750 employees lost their jobs, pensions and health benefits. Bain, however, made money, investing $8 million in the company and taking out $4 million in profits and $4.5 million in management fees. The Romney campaign contends that GST, with its unionized workforce, could not compete with cheap foreign steel being dumped on the market. The Obama campaign alleges that Bain burdened GST with crushing debt while sucking the company’s coffers dry.
Is this the genius of free markets at work, or is it “vulture capitalism” run amok? Let’s have that argument. Please.
Let’s also have a long, detailed discussion of Romney’s economic plans versus Obama’s. Romney wants to make tax rates for the wealthy even lower than they are now; Obama wants a small increase for those making more than $1 million a year, whom he challenges to pay “their fair share.” Romney’s entire economic plan, basically, involves tax cuts and deregulation — in other words, a repeat of the Bush-era policies that led to the crisis.
Does Romney have any fresh ideas? Well, when he was governor of Massachusetts, he was smart enough to see that universal health coverage would not only improve the lives of the uninsured but also help rein in runaway medical costs. He found the solution in an innovative idea developed in Republican-leaning think tanks: an individual health insurance mandate.
It worked. In fact, it was Romney’s greatest policy success as a public official. But now he doesn’t talk about it much.
My guess is that Republicans won’t want to talk about the past or the future in much detail. They’d like to keep things blurry, so that we only see Romney in broad outline: a successful businessman who’ll put us back in business. For details, we’ll mail you the prospectus.
I can’t help but think of the “prosperity theology” movement, or scam, in which preachers persuade congregants that God’s will is for Christians to be rich — and that the way to become rich is to put lots of money in the collection plate. It’s not believable unless the preacher looks and acts the part. Maybe he lives in a mansion. Maybe his wife drives “a couple of Cadillacs.”
Actually, it’s not believable even then.
BY: Eugene Robinson, Opinion Writer, May 14, 2012