“The Supremes Return”: Will There Be An “October Surprise” On Affirmative Action?
At The Atlantic today, Andrew Cohen has a brief preview of the upcoming session of the Supreme Court. A lot of his article revolves around the personal antagonisms that seemed to emerge strong during and after consideration of the Affordable Care Act case. But here’s what Cohen says about the Court’s caseload:
Alas, what’s on the docket today, even after the Court accepted six new cases this past Wednesday, is only about half of what the justices will decide between now and June. So previewing the Court term this year is a little like previewing a play that is only half written. Will this be a term like last term, one for the ages? It depends. It depends on how aggressive the justices are in reaching out to take big-ticket social cases.
We don’t yet know, for example, whether the justices will take the Proposition 8 case out of California to finally put to rest that state’s uncertainty with same-sex marriage. Nor do we yet know if the Court is going to take another look at the Voting Rights Act after a season marked by partisan discrimination over voter identification laws. And there is a possibility, with voting rights cases brewing in South Carolina, Pennsylvania, Ohio and elsewhere, that the Court may be dragged into an election case before the November election.
As I write today, there is only one transcendent case on the Court’s docket this term, and it comes up early, on October 10. In Fisher v. University of Texas at Austin, the Court’s conservatives are poised to finish off once and for all the concept of affirmative action in academia.
Cohen goes on to note the perilous constitutional condition of affirmative action in college admissions, maintained in 2003 on a tie-breaking vote from Justice O’Conner, who has since been replaced by Samuel Alito, a confirmed enemy of affirmative action in general.
But Political Animals want to know if oral arguments on this issue right in the middle of the stretch run of the election campaign could serve as something of an “October Surprise” for Republicans who may by that time have lost whatever remaining inhibitions they have about racially tinged attacks arguing that those people and their president are systematically looting the good virtuous white people of America. I certainly think they will do whatever they can to exploit the publicity over the case, and would not be surprised at all if Mitt Romney and/or debate moderators were to pointedly challenge Obama on this subject either before (on October 3) or after (on October 16) the Court’s oral arguments.
So get ready for some race-baiting nestled in the gauzy language of constitutional law!
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, September 27, 2012
“Not A Chance”: Does The Supreme Court Care A Whit About The Public’s Opinion Of The Obamacare Ruling?
As we edge closer to this month’s Supreme Court decision on the future of the Affordable Care Act—or lack of any such future—many liberal pundits are pinning their hopes for a happy ending on Chief Justice John Roberts voting to uphold the law in response to the court’s poor showing in recent polls on the issue of the court’s political objectivity.
Nonsense.
Of the many concerns that fall to a Chief Justice—whose name will forever attach to the decisions of the court over which he or she presides—public polls would have to be at the very lowest rung on the list.
A recent New York Times/CBS News poll reveals that public support for SCOTUS is at just 44 percent, with 76 percent believing that the justices, at least some of the time, base their rulings on their personal and political views.
This rather dismal opinion of our one government institution— that is supposed to be high above petty political concerns—prompted former Clinton Labor Secretary, Robert Reich, to write in the Christian Science Monitor –
The immediate question is whether the Chief Justice, John Roberts, understands the tenuous position of the Court he now runs. If he does, he’ll do whatever he can to avoid another 5-4 split on the upcoming decision over the constitutionality of the Obama healthcare law.
My guess is he’ll try to get Anthony Kennedy to join with him and with the four Democratic appointees to uphold the law’s constitutionality, relying primarily on an opinion by Judge Laurence Silberman of the Court of Appeals for the District of Columbia – a Republican appointee with impeccable conservative credentials, who found the law to be constitutional.
While I would love to believe that Reich has this right, I’m afraid the Secretary is engaging in some very wishful thinking. It’s just not going to happen that way.
This is not to say that the Chief Justice may not, ultimately, find the law to be constitutional.
I have previously suggested that writing off Robert’s vote in support would be a mistake— in no small measure because of his high regard for the opinions of Judge Silberman who did, as Reich reports, vote to uphold Obamacare in the DC Court of Appeals and did so in a highly compelling opinion that cannot be ignored.
Silberman is a major legal influence on conservative judges throughout the nation and, in my opinion, the most likely next appointee to the Supreme Court should a Republican president make the choice.
At the very least, it is reasonable to expect that Justice Roberts might be far more open to considering the less comfortable approach to the law than he might otherwise have been had Judge Silberman seen things differently. In the end, Judge Silberman’s well thought out opinion may turn out to be the difference between Obamacare surviving or not.
But will the Chief Justice ‘tilt’ his vote in a scheme designed to protect the status of the court in the public’s perception?
Not a chance.
If Roberts concludes that the law should be upheld, he may go after Justice Kennedy’s vote, as Secretary Reich suggests, but he would do so with the understanding that on issues as important as the healthcare decision, a 5-4 vote would leave the issue settled—but in a highly unsettling way. When it comes to critical rulings, any Chief Justice greatly prefers that the decision not be carried by a tie-breaker vote as it forever remains more suspect than a 6-3 determination.
We should also keep in mind that The Roberts Court is far from the first controversial Supreme Court in our history. Nor is the current crop of justices the first to experience a bumpy road when it comes to public opinion. We need only recall the huge public outcries engendered by the Warren Court—a version of the Supreme Court which upended the legal status quo in this country in ways never previously seen, enraging many Americans in the process.
Chief Justice Roberts may vote to uphold the Affordable Care Act—including the controversial mandate provisions. I certainly hope that this is the case. And should things go this way, there is no doubt that Roberts’ opinion will go a long way to encourage confidence in our Chief Justice who, by voting to uphold, would reveal himself as a man committed to correctly interpreting the law—even when it may be in opposition to what we suspect might be the dictates of his personal belief.
But if the Chief Justice does this, it will not be the result of some PR effort to raise the level of esteem for the Court among the American public—it will be because he will have correctly understood that, like the law or not, the Affordable Care Act passes Constitutional muster.
By: Rick Ungar, Forbes, June 17, 2012
“A Partisan Cleerleader”: Supreme Court Justice Scalia Turns Advocate Against Obama
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.
Campaign Issue
“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.”
‘Nasty’ Question
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.
Target: Verrilli
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?”
‘Statute’s Gone’
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.”
‘Please Mexico?’
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.
Troubling Pattern
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
“Women’s Right’s Are Not Safe”: Romney’s Model Supreme Court Justices Voted Against Lilly Ledbetter
Earlier today, the Romney campaign responded to a question about whether their candidate supports the Lilly Ledbetter Fair Pay Act’s protection of equal pay for women with an awkward six second silence, followed by a promise to “get back” with an answer about whether or not Romney actually supports equal pay for women. The campaign has spent the rest of the day engaged in ham-handed damage control — first by putting out a statement saying that he is “not looking to change current law,” then by releasing statements by Republican congresswomen who previously voted against the Ledbetter Act.
Yet for all of Romney’s equivocating on whether or not he actually believes that women should be paid the same amount as men who do the exact same job, Romney cannot hide two important facts. The Ledbetter Act was only necessary because of a 5-4 Supreme Court decision which overruled decades of precedent protecting equal pay for equal work; and Romney promised to appoint more justices like the ones who voted against Lilly Ledbetter.
Last November, Romney listed four sitting Justices as the models he will follow if he gets to appoint a justice of his own — Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts. Every single one of these justices voted against Lilly Ledbetter and against equal pay for women in the workplace. Just like they have voted in favor of corporate immunity from the law on issues ranging from forced arbitration to enabling corporations to buy and sell elections.
But, of course, Congress overruled the Supreme Court’s error in the Ledbetter case when it passed the Ledbetter Act, and Romney now says that he doesn’t want to change “current law.” So doesn’t that mean women’s current rights to equal pay are safe?
Not if Romney gets to appoint any more conservative justices. Just months after Congress spanked the Supreme Court by overruling their attack on women in Ledbetter, the five conservative justices handed down a very similar opinion stripping many older workers of their right to be free from employment discrimination. Worse, in taking away many older workers’ ability to protect their jobs, the Court left no doubt that it was thumbing its nose at precedent. Although longstanding law clearly established that the justices’ assault on older workers was wrongly decided, the Court’s conservatives choose to ignore this law because “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.” In other words, now that conservatives are in charge, they are free to do whatever they want.
Given that the conservative justices renewed their attack on workers so soon after the Ledbetter Act became law, and that they did so in an opinion that expressly stated that they do not care about precedents or established law, women simply cannot be sure that these same justices won’t hand down another decision much like Ledbetter if given the opportunity to do so. Mitt Romney may claim that he does not want to change “current law” in a way that harms working women, but if he gets to add more justices like Roberts or Scalia to the Supreme Court, he won’t have to. The Supreme Court will do it for him.
By: Ian Millhiser, Think Progress, April 11, 2012
“Mirror, Mirror On The Wall”: Grassley Backs Off Claim That Obama Is ‘Stupid’
Late last week, Sen. Chuck Grassley (R-IA), the ranking minority member of the Senate Judiciary Committee, suggested in a tweet that President Obama is “stupid” because Grassley objected to the president’s recent comments on judicial activism. President Obama’s comments warned that conservatives have historically rejected the idea that an “unelected group of people would somehow overturn a duly constituted and passed law” — a position that Grassley himself held as recently as 2011.
At an event in Dubuque, Iowa yesterday, Grassley backed off his claim that the first black president of the Harvard Law Review lacks intelligence:
“I had a comment; I should have been a little more diplomatic,” Grassley said, referring to his controversial tweet and drawing laughter from the gathering of about 50 people, “because the president is an intelligent man.”
Grassley added later, “He said something stupid. I say something stupid. We all say something stupid from time to time.” . . .
“What bothers me is the fact that (Obama) knows all about Marbury v. Madison (a historic case that established judicial review) and the Constitution allowing the courts to be independent and in the process of independence to declare acts of Congress unconstitutional,” Grassley said. “He shouldn’t have done it, and he knows that. And I think that he ought to apologize to the American people for not respecting the independence of the judiciary.”
Grassley is right that all people, including elected officials, sometimes misspeak and say something that does not accurately convey their meaning. In Obama’s case, he said something which could plausibly be interpreted as claiming that judges can never strike down a federal law, and then elaborated on that comment shortly thereafter to clarify that he did not intend something that is obviously false. President Obama’s full statement, that there are no modern precedents for judges second guessing Congress’ economic policy judgment such as the Affordable Care Act, cannot reasonably be disputed.
Nevertheless, Grassley seems determined not to take his own advice, even as he backs off his most insulting claim that Obama is “stupid.” Grassley’s claim that Obama needs to apologize is ridiculous, especially because it is hard to distinguish Obama’s remarks from years of anti-judicial rhetoric from George W. Bush.
By: Ian Millhiser, Think Progress, April 11, 2012
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 