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“Outraged About Ginsburg’s Comments?”: Supreme Court Justices Have Always Voiced Political Opinions

Donald Trump is freaking out over statements made by Supreme Court Justice Ruth Bader Ginsburg.

Ginsburg didn’t hold back during a New York Times interview published Monday. “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said.

Trump, naturally, hopped on Twitter to complain.

Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot – resign!

— Donald J. Trump (@realDonaldTrump) July 13, 2016

Speaker of the House Paul Ryan called Ginsburg’s comments “out of place” during a CNN Town Hall on Tuesday.

But even after a wave of criticism, including from “liberal” outlets, Ginsburg refused to walk back her comments. On Monday, she called Trump a “faker.”

“He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that,” she said in her chambers.

The backlash over Ginsburg’s comments is not surprising, given Trump’s history of trying to de-legitimize the judicial system (especially when it applies to him). But his argument that Ginsburg’s comments disqualifies her from being an unbiased judge is a weak one: The ideological leanings of the justices are well known by not only their decisions (its kind of their job to give opinions), but also their public statements.

Unlike Ginsburg’s comments about Trump, justices have made plenty of statements in the past that relate directly to cases before them in the court.

Antonin Scalia was the poster boy for this behavior – the conservative legal icon frequently toured between law schools, book stores, and other gatherings, debating all comers on a wide range of topics. We knew how he felt about the death penalty, abortion and homosexuality:

“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.” he said in 2012.

“What minorities deserve protection? What? It’s up to me to identify deserving minorities? What about pederasts? What about child abusers? This is a deserving minority. Nobody loves them.” he said in 2015.

Scalia’s defense of his homophobic remarks could easily be used to defend Ginsburg’s Trump comments — not that Ginsburg would use his argument, despite her storied, decades-long friendship with Scalia.

“If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?” Scalia said in 2012 after a gay Princeton student asked him why he equated laws banning sodomy with laws that ban man-on-animal sex and murder.

Ginsburg herself has long been known for her frankness. Joan Biskupic, the journalist who reported Ginsburg’s statements on Trump, writes that, having met with her “on a regular basis for more than a decade,” she “found her response classic.”

Biskupic elaborates:

I have witnessed her off-bench bluntness many times through the years.  During 2009 oral arguments in a case involving a 13-year-old Arizona girl who had been strip-searched by school administrators looking for drugs, she was troubled that some male justices played down any harm to the student. “They have never been a 13-year-old girl,” Ginsburg told me. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”

Earlier in 2009, she was being treated for pancreatic cancer yet made sure to attend President Barack Obama’s televised speech to a joint session of Congress, explaining that she wanted people to know the Supreme Court was not all men. “I also wanted them to see I was alive and well, contrary to that senator who said I’d be dead within nine months.” She was referring to Sen. Jim Bunning, a Kentucky Republican, who had said she would likely die within nine months from the pancreatic cancer. Bunning later apologized.

As the first Latina to reach the court, Justice Sonya Sotomayor fiercely defends her use of personal political reflection, based in experiences that she believes differ from those of the other justices, in her arguments. The issue of affirmative action is especially important to Sotomayor. In her 2013 memoir, she wrote:

“Much has changed since those early days when it opened doors in my life. But one thing has not changed: to doubt the worth of minority students’ achievement when they succeed is really only to present another face of the prejudice that would deny them a chance even to try.”

Sotomayor has taken this sentiment to the court. In her dissent on Schuette v. Coalition to Defend Affirmative Action, she wrote: “Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, ‘No where are you really from?’”

Sotomayor’s opinion in a fourth amendment case on the validity of police stops was an explicitly political appeal. “It is no secret that people of color are disproportionate victims of this type of scrutiny,” she wrote in her dissent, on a case where a Utah man claimed he was unlawfully stopped by police. “For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

And besides: The Constitution does not prohibit Supreme Court Justices from expressing personal opinions.

Bloomberg‘s Noah Feldman offers Chief Justice John Marshall, who served as John Adams’s secretary of state while he was a chief justice, as proof that America’s founding generation was not “obsessed with the idea that justices have to be outside the reach of politics.”

Marshall, a loyalist of the Federalist Party, was understood to retain his beliefs while serving as chief justice subsequently.

Two of his most revered opinions, Marbury v. Madison and McCulloch v. Maryland, are historically incomprehensible except through the lens of partisan politics. In the first, he went to great lengths to embarrass the Jefferson administration by insisting that Marbury had a right to a justice-of-the-peace commission granted by Adams, before tacking back and holding that the law that would have allowed the court to force the delivery of the commission was unconstitutional.

In the second, he upheld the constitutionality of the Bank of the United States, originally such a fundamental partisan issue that it helped drive the creation of his Federalist and Jefferson’s Democratic-Republican parties.

Maybe conservatives shouldn’t argue about the integrity of the Court while in their fourth month of refusing to give it a ninth justice.


By: Germania Rodriguez, The National Memo, July 13, 2016

July 14, 2016 Posted by | Conservatives, Ruth Bader Ginsburg, SCOTUS | , , , , , , , | Leave a comment

“Alabama’s Dangerous Defiance”: A Disturbing Line Of Thinking In The History Of American Federalism

On Tuesday the Supreme Court of Alabama prohibited the state’s probate judges from issuing marriage licenses to same-sex couples. This decision effectively throws down the gauntlet, challenging the federal courts to make earlier federal rulings stick — including last month’s refusal by the United States Supreme Court to stay a federal judge’s decision requiring the state to recognize same-sex marriages. It draws on a disturbing line of thinking in the history of American federalism, one that, were it to gain currency as a model, could compromise our entire system of law.

The court’s position is that under the Constitution, it does not have to follow the rulings of lower federal courts; in its ruling, it promises to “defer only to the holdings of the United States Supreme Court.” (That said, Chief Justice Roy Moore’s public statements have been more equivocal; he told a radio host in Birmingham, Ala., “It would be a very hard decision, because I know there’s nothing in the U.S. Constitution that authorizes the Supreme Court of the United States or any federal court anywhere to misinterpret the word marriage.”)

Such extreme states’ rights positions first appeared during an epic battle between the great chief justice John Marshall and Spencer Roane, a member of the Virginia Court of Appeals. The two were bitter political and ideological enemies in the early years of the republic, and Roane had long railed against the authority of the federal Supreme Court over state courts. He repeatedly declined to implement federal decisions with which he disagreed, and refused to recognize the authority of federal courts to review state court rulings. In the end, however, Marshall prevailed.

And yet extreme states’ rights have been asserted more often in political rhetoric than in judicial proceedings. Even in the period of Southern “massive resistance” to Brown v. Board of Education, the Supreme Court’s 1954 desegregation decision, state supreme courts did not try to interpose their own interpretations of the Equal Protection Clause or issue conflicting injunctions against state officials to block desegregation orders by lower federal courts (though some state legislatures did attempt to block Brown’s implementation).

Since the United States Supreme Court will rule on gay marriage in June, it’s easy to dismiss the Alabama court’s ruling as quixotic. But it raises a real issue: not what state courts can do, but rather what they should do. Because state and federal courts operate on entirely separate tracks, the state court’s position that it need not follow lower federal court rulings is technically correct. Yet if our judicial system is to function smoothly, both court systems must, from time to time, refrain from exercising their legal discretion to ignore the other’s handiwork.

The gay-marriage rulings bring this aspect of the state-federal relationship, called comity, into close focus. Alabama’s probate judges are subject to the jurisdiction of both state and federal courts. If both judicial systems exercise their authority concurrently and independently, issuing conflicting constitutional rulings, the probate judges are caught in a Catch-22. Respecting one court’s order necessarily will involve a failure to respect the other’s.

This isn’t just about state courts bowing to federal authority; federal courts have a number of “abstention” doctrines designed to respect the autonomy of state courts. The most famous, called Younger abstention, provides that federal courts should not intervene in pending state court criminal proceedings — even if a credible allegation of a federal constitutional violation exists.

In turn, state courts will often extend comity to the decisions of the local federal courts. Although state courts are not bound by lower federal court decisions, state officials are required to follow federal court orders (this distinction probably explains, at least in part, the willingness of state courts to voluntarily follow lower federal court precedents).

Gay marriage is exactly the sort of issue on which state courts should — and do — defer to lower federal courts. Five federal appellate courts have recently decided whether the Constitution requires a state government to recognize same-sex marriage: Four said yes; only the Sixth Circuit has held that they need not do so. The state courts and governments within these circuits have all acquiesced (Alabama is in the 11th Circuit, which has not ruled on the issue). In fact, Alabama’s State Supreme Court is the only one in the country to go to war with the local federal courts on the issue.

If State Supreme Courts followed the Alabama Supreme Court’s lead, a system of dual courts simply would not work. The United States Supreme Court, which hears only 80 to 90 cases per year, would not be able to disentangle the legal morass that would result if state courts routinely thumbed their noses at the decisions of their local lower federal courts.

Chief Justice Marshall observed, “If the legislatures of the several states may at will annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery.” This holds just as true if state courts exercise an identical nullification power over federal court orders.

The Alabama Supreme Court’s action represents an unfortunate departure from the cooperative norm that must prevail between these independent judicial systems. Other state judiciaries would do well not to follow its example.


By: Ronald J. Krotoszynski, Jr, Law Professor at the University of Alabama; Op-Ed Contributor, The New York Times, March 6, 2015

March 10, 2015 Posted by | Alabama Supreme Court, Federal Judiciary, Roy Moore | , , , , , , | Leave a comment

“The Power To Regulate Commerce”: Constitution, Court’s Precedent On Affordable Care Act’s Side

In the words of Judge Laurence Silberman, a leading conservative who received the Presidential Medal of Freedom from President George W. Bush, the lawsuits challenging the Affordable Care Act have no basis “in either the text of the Constitution or Supreme Court precedent.” And Silberman is right. The Constitution gives the United States power to “regulate commerce … among the several states,” and there is simply no question that a law which regulates one sixth of the nation’s economy regulates the nation’s commerce.

This not a particularly new idea. As Chief Justice John Marshall put it nearly two centuries ago, there is “no sort of trade” that the words “regulate Commerce” do not apply to, and these words give the United States “full power over the thing to be regulated.” The Affordable Care Act regulates trade in healthcare services, and thus America has the full power to regulate this important market.

In challenging the Affordable Care Act, the law’s opponents seek an unprecedented expansion of judicial power that would eradicate all limits on what the nine unelected judges on the Supreme Court can do. Because their entire legal argument has no basis in the Constitution itself, it eliminates any bounds on what judges can do to impose their will on the American people. If judges are free to ignore the Constitution just this once, they can do it whenever they want, and there will no longer be any limits whatsoever on judicial discretion.

In other words, if judges have the power to strike down the individual mandate, there is nothing preventing the Supreme Court from forcing you to eat broccoli.


By: Ian Millhiser, U. S. News and World Report, March 26, 2012

March 27, 2012 Posted by | Affordable Care Act, Constitution | , , , , , , , | Leave a comment

The Affordable Care Act And The Text Of The Constitution: Words Still Matter, Even in the Supreme Court

The most powerful line in conservative Judge Laurence Silberman’s decision upholding the Affordable Care Act last week is a blunt statement that the law’s opponents “cannot find real support” for their  arguments “in either the text of the Constitution or Supreme Court precedent.”

Now that the Supreme Court has agreed to take up this case later this year, Silberman’s words are a stern reminder that the text of the Constitution must guide judges’ decisions, especially in politically charged cases, and that Silberman’s fellow conservatives on the Supreme Court must ignore the temptation to place politics over fidelity to the Constitution by striking down the Affordable Care Act.

There can be no question that Silberman is right about what the Constitution has to say about this law. The federal government’s power is not unlimited—the Constitution gives Congress a laundry list of  “enumerated powers,” and Congress cannot stray beyond this list—but its  authority is quite sweeping when it regulates nationwide commercial  markets such as the market for health care services. In the  Constitution’s words, Congress may “regulate commerce . . . among the  several states.”

The plaintiffs’ primary challenge to the Affordable Care Act is to the provision requiring most Americans to either carry health insurance  or pay slightly more income taxes. In their vision of the Constitution, this provision runs afoul of some unwritten rule against being told what to do. The federal government can regulate how people go about the business they are already engaged in, under this narrow vision, but it is utterly powerless to push people to engage in commerce they would prefer to avoid.

There are many, many problems with this theory of the Constitution.  But Silberman’s rebuttal of it is both the most simple and the most elegant response to the plaintiffs’ entirely fabricated legal theory. The Constitution says nothing suggesting that people can immunize themselves from the law simply by remaining passive. It simply provides that the United States may regulate commerce among the several states.

Modern judges do not need to speculate what the founding generation  understood these words to mean when they were written into the text of  the Constitution. Chief Justice John Marshall—himself one of the  ratifiers of the Constitution—told us what they mean in the 1824 case of  Gibbons v. Ogden. Marshall wrote that there is “no sort of  trade” that the words “regulate Commerce” do not apply to. He said that  the power to “regulate” something “implies in its nature full power over the thing to be regulated.” And he told us that Congress’s power to regulate commerce “among the several states” applies to all trade that “concern[s] more states than one.”

So when Congress passes a nationwide law regulating the entire national health care market, there is simply no question that the law is constitutional. The law regulates a form of trade—trade for health  services—and it regulates a health services market that is both  pervasive and nationwide. The Affordable Care Act cases are some of the  easiest cases to cross the Supreme Court’s bench in a generation, and it is nothing less than shocking that a handful of judges have struck the law down.

Thankfully, the overwhelming majority of judges to review the law  have upheld it. Of the four federal appeals courts to consider the Affordable Care Act, only one voted to strike it. That one outlier decision was grounded on a false fear that if the courts were to uphold health reform, it would somehow eliminate all of the existing limits on congressional authority. If Congress is allowed to regulate health care today, the law’s opponents argue, tomorrow they will force everyone to  buy broccoli.

Make no mistake: This concern is misguided, and it has no basis in the Supreme Court’s precedents. In its 1995 decision in United States v. Lopez,  the Supreme Court explained that the power to regulate “commerce”  includes sweeping authority over the nation’s economy, but Congress’s  authority over noneconomic matters is far more limited. Thus a wide  range of noneconomic regulation—including federal laws governing personal and sexual morality or even a federal ban on assault, rape, or  murder—clearly exceed Congress’s enumerated powers. Sweeping regulation of the national health care market, by contrast, fits comfortably within the Constitution’s text.

Because the text of the Constitution clearly and obviously supports the Affordable Care Act, the Supreme Court has an unambiguous duty to uphold it. Judges are not like members of Congress. They are unelected, and they serve for life. As such, they cannot be held accountable to the people through fear of a lost election and can only be checked by their loyalty to our written Constitution. If the federal judiciary has the  power to ignore the text of the Constitution then there is literally nothing that they cannot do.

Indeed, if the justices strike down the Affordable Care Act, there is  nothing preventing them from forcing every American to buy broccoli.

By: Ian Millhiser, Center For American Progress, November 14, 2011

November 20, 2011 Posted by | Conservatives, Health Reform | , , , | 1 Comment


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