“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
“No Escaping The Culture Wars”: Every Time Mitt Thinks He’s Out, He’s Pulled Right Back In
There was a time not long ago when Democrats feared the culture war. They’d try to make campaigns about things like economic fairness, and just when things seemed to be going their way, Republicans would jump out from behind a bush and shout “God! Guns! Gays!” Voters would scream in alarm and pull the lever for the GOP. But here we are today, with Republicans desperately trying to change the subject away from gay marriage and back to the economy. Whodathunkit?
Just a few days ago, most people thought it would be too risky for President Obama to come out and support marriage equality. But now not only has he come out in support, his campaign has released a web ad touting his support for it and slamming Romney for not supporting even civil unions. It uses George W. Bush (!) saying he supports civil unions, and hits Romney for supporting a constitutional amendment to forestall marriage equality. “President Obama is moving us forward,” the ad concludes. “Mitt Romney would take us back.” Meanwhile, Republican leaders are trying desperately to avoid talking about marriage.
But this story is not going to go away, at least not for the next few days. Because guess where Mitt Romney is scheduled to give a speech tomorrow: Jerry Falwell’s Liberty University. It was scheduled some time ago, but in the midst of all this, when Romney keeps saying he wants to talk about the economy, he’s going down to Lynchburg to address an audience of evangelicals, where he’ll of course have to heap praise on Falwell, one of the most divisive culture-war figures this country has ever seen, and of course he’ll have to proclaim his support for “traditional” marriage, and of course he’ll have to talk about abortion, and of course he’ll come off sounding like someone who has to keep proving to the hard right that he’s “severely conservative,” in his own immortal words. And this all comes on the heels of the bullying story. It has been one tough week for the guy.
In honor of Mitt’s appearance at Liberty, I give you this: quite possibly the best hip-hop anthem about an evangelical university ever produced. Critics everywhere said, “Not nearly as awful as I expected!”
By: Paul Waldman, Contributing Editor, The American Prospect, May 10, 2012
Arizona’s “20th Century Boss” In 2012: Using Birth Control? You’re Fired!
First, a bill that gives immunity to doctors who lie to couples about the results of their prenatal tests in order to prevent them from getting an abortion. Now, a bill that would give your boss the green light to fire you for using birth control. You think I am kidding? I wish. For a decade now, Arizona insurance companies have been required to provide coverage for contraception just like other prescriptions. But, because they saw an opening to score some political points, some politicians there are suddenly moving to take that coverage away from women and their families.
And we aren’t talking here just about exemptions for religiously affiliated employers like Catholic hospitals and universities. We are talking about authorizing secular, for-profit employers to deny a woman coverage for birth control if the employer doesn’t believe that she and her partner should be allowed to have sex without getting pregnant. Yup, that’s right. If the owner of the Taco Bell where you work opposes birth control, Arizona legislators want to give him a legal right to deny you insurance coverage for your pills.
Sadly, that isn’t even the half of it. You may want to sit down for this one. Arizona legislators know that whether or not her insurance covers it, a woman may get the prescription she needs to prevent an unintended pregnancy. They want to give her boss the right to control that too. The bill they are pushing would not only allow employers to take the insurance coverage away, but it would also make it easier for an employer who finds out that his employee uses birth control to fire her. You heard me right . . . to fire her. And I thought Rush Limbaugh’s comments were as low as you could go on this one.
The Arizona bill has, incredibly, already passed one house, but we can still stop it. We’ve seen what can happen if we make our voices heard. So, if you’ve had enough; if you think the decision about whether to have a child is one for you and your partner, not your boss and your senator, I urge you to speak up now. Tell the legislators in Arizona to stop playing politics with women’s health and put personal and private decisions back in the hands of a woman and her family.
By: Jennifer Dalven, Reproductive Freedom Project, ACLU Blog, March 12, 2012
“A Lying Candidate Will Be A Lying President”: More On Mitt Romney’s Lies
Is Mitt Romney a guy who tells a bunch of lies, or is he a liar? That the question Jonathan Chait asks, and he winds up sort-of defending Romney, saying that his lies, many of which revolve around his effort to deny his own history, have been practical in nature. “It’s Romney’s bad luck that fate has dictated his only path to the presidency lies in being a huge liar,” Chait says, so those lies don’t tell us much about what’s deep in Romney’s character.
There are two problems here. The first is that Romney lies about President Obama as often as he lies about himself. It’s just that when he does the former, he does it with actual squirming (if he’s sitting down), the phoniest smile you’ve ever seen, and panic in his eyes, so it’s really obvious. The second problem is that Chait’s distinction applies to pretty much every political liar in history. There’s always a reason why a politician lies. The biggest lies come when they get caught doing something they shouldn’t have (Nixon with Watergate, Reagan with Iran-Contra, Clinton with Monica Lewinsky). They might be telling themselves, “Taking responsibility is all well and good, but it’s better for the country if I get out of this scandal and continue with my duties.”
In fact, saving one’s own skin, whether from scandal or the displeasure of the party base, is a near-universal motivation for politicians’ lies. In Romney’s case, what he got caught doing wasn’t trading arms for hostages or getting serviced by a young intern, but supporting abortion rights and health care reform, which to the people whose votes he’s now seeking are sins even more deplorable. I’d argue that Romney’s lies about Obama (see here for some ) are the worse ones, because it wasn’t like some reporter backed him into a corner and he was grasping at straws to keep primary voters from hating him. He could make a critique of Obama that’s just as persuasive without making things up, but he chooses not to, fairly regularly.
So is there a real meaningful difference between a politician who’s a liar, and a politician who tells many lies? No—or, at least, none that will matter to us as citizens. Experience tells us that a guy who lies as a candidate will not only tend to lie just as much as a president, but will probably lie about the same kinds of things. If he’s lying on the campaign trail about whether he has cheated on his wife, it’s a good bet he’ll end up telling us more lies about future cheating. If he’s lying on the campaign trail about what his tax plan contains, it’s a good be he’ll end up lying to us about his tax plan when he tries to pass it, as George W. Bush did.
So the really important thing to watch out for is the guy who tells lies about policy. Which would seem to apply fairly well to Mitt Romney, whatever happens to lie deep within his heart.
By: Paul Waldman, The American Prospect, March 15, 2012
“The Politics Of Sex”: The Bad News Is Good News
There was one brief shining moment last week when Mitt Romney appeared to be saying something sensible about sex.
“The idea of presidential candidates getting into questions about contraception within a relationship between a man and a woman, husband and wife, I’m not going there,” he told reporters.
This was the way Republicans used to talk, oh, about a millennium or so ago. The state legislators wore nice suits and worried about bonded indebtedness and blushed if you said “pelvis.” A woman’s private plumbing? Change the topic, for lord’s sake. Now some of them appear to think about women’s sex lives 24/7, and not in a cheerful, recreational manner.
And it turned out that Romney misspoke. He apparently didn’t realize that the subject he was proposing to steer clear of was a Republican plan to allow employers to refuse to provide health care coverage for contraception if they had moral objections to birth control.
He was definitely going there! Mittworld quickly issued a retraction making it clear that Romney totally supports the idea of getting into questions of contraception within a relationship between a man and a woman. Particularly when it comes to reducing health insurance coverage.
Really, what did you expect? If Romney couldn’t even take a clear stand on Rush Limbaugh’s Slutgate, why would he say anything that forthright unless it was a total error? This is why we can’t get the dog-on-the-car-roof story straightened out. The reporters have their hands full just figuring out Mitt’s position on the biggest controversy of the last month.
We’ve certainly come to a wild and crazy place when it comes to the politics of sex. Perhaps this would be a good time to invest in burqa futures. However, I like to look on the bright side, and I am beginning to think we may actually be turning a corner and actually getting closer to resolving everything.
All of this goes back to the anti-abortion movement, which was very successful for a long time, in large part because it managed to make it appear that the question was whether or not doctors should be allowed to cut up fetuses that were nearly viable outside the womb.
But now we’re fighting about whether poor women in Texas — where more than half the children are born to families whose incomes are low enough to qualify them for Medicaid coverage of the deliveries — should have access to family planning. As Pam Belluck and Emily Ramshaw reported in The Times this week, the right has taken its war against Planned Parenthood to the point where clinics, none of which performed abortions and some of which are not affiliated with Planned Parenthood, are being forced to close for lack of state funds.
Or about whether a woman seeking an abortion should be forced to let a doctor stick a device into her vagina to take pictures of the fetus. The more states attempt to pass these laws, the more people are going to be reminded that most abortions are performed within the first eight weeks of pregnancy, when the embryo in question is less than an inch-and-a-half long.
And the more we argue about contraception, the more people are going to notice that a great many of the folks who are opposed to abortion in general are also opposed to birth control. Some believe that sex, even within marriage, should never be divorced from the possibility of conception. Some believe that most forms of contraception are nothing but perpetual mini-abortions.
Most Americans aren’t in these boats. In fact, they are so completely not in the boats that very, very few Catholic priests attempt to force their parishioners to follow the church’s rules against contraceptives, even as the Catholic bishops are now attempting to torpedo the health care reform law on that very principle.
Every time a state considers a “personhood” amendment that would give a fertilized egg the standing of a human being, outlawing some forms of fertility treatment and common contraceptives, it reinforces the argument that the current abortion debate is actually about theology, not generally held national principles.
And, of course, every time we have one of those exciting discussions about the Limbaugh theory on making women who get health care coverage for contraception broadcast their sex lives on the Internet, the more the Republican Party loses votes, money, sympathy — you name it. The Wall Street Journal/NBC News poll, which last summer found women almost evenly divided on which party should control Congress, now shows that women favor Democrats, 51 percent to 36 percent.
The longer this goes on, the easier it will be to come up with a national consensus about whether women’s reproductive lives are fair game for government intrusion. And, when we do, the politicians will follow along. Instantly. Just watch Mitt Romney.
By: Gail Collins, Op-Ed Columnist, The New York Times Opinion Pages, March 9, 2012
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