“Why Scalia Should Resign”: It Must Make Him Wonder If He Wishes To Be Part Of An Institution That Is Corrupting The Republic
Supreme Court Justice Antonin Scalia should resign.
That’s the thought I had while reading his acid dissents in the two headline-grabbing Supreme Court cases last week, one affirming the IRS’s interpretation of the Affordable Care Act, and the other discovering a right to same-sex marriage in the 14th Amendment.
Scalia’s considered view is that the court has usurped power from Congress in the health care law, and from the American people themselves in the marriage case.
Ultimately, on the health care case, John Roberts agreed with most of the claims of the plaintiffs, but decided to rewrite the disputed clause because, as he writes, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” Scalia retorted that the court’s job is to pronounce the laws, not re-shape them to better fit what the court imagines the intent of the legislators to have been. Scalia writes, “the court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmaker.”
He continues:
The court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress “[a]ll legislative Powers”enumerated in the Constitution. Art. I, §1. They made Congress, not this court, responsible for both making laws and mending them. This court holds only the judicial power — the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that “[o]ur task is to apply the text, not to improve upon it. [King v. Burwell]
So the court has thus transgressed the balance of powers, becoming a kind of reserve super-legislature. But his dissent on Friday against Justice Anthony Kennedy’s majority opinion legalizing same-sex marriage takes the charge much further. According to Scalia, the court has given into nonsense, and now transgresses the right of the American people themselves. “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie,” he jeers.
Scalia’s baseline assumption is that the meaning of the 14th Amendment did not change since 1868. And further that it is the prerogative of the American people, through their legislators or through constitutional amendment, to redefine marriage as an institution that includes two people regardless of their sex, a process that was well on its way. And so the Kennedy decision becomes for Scalia a “judicial putsch,” where five judges “have discovered in the 14th Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.” Instead of law, Scalia says, the court has given “pop philosophy” and “showy profundities” that are “profoundly incoherent.”
Scalia has often denounced majority holdings in extraordinarily memorable language. But what he offers in his two dissents at the end of this term are much graver charges. The ruling in King further infantilizes Congress, releasing it from its responsibility to craft laws with any precision, thus weakening the ability of the people to govern themselves through the legislature. And the marriage ruling more directly asserts a judicial supremacy over the people themselves. What Scalia is saying is that the court has corrupted the American form of government and staged a coup.
If these are anything more than rhetorical flashes, then it must make him wonder if he wishes to be a part of an institution that is this corrupted and corrupting of the republic. He may steel himself, as someone who will dutifully carry out his appointed role. But waiting for a Republican president to replace him is a guarantee of nothing. The two opinions that amount to a putsch were written by justices appointed by the two most conservative Republican presidents in living memory.
Progressives would be so giddy at his departure. So what? If the court is captured by politics, what better rebuke than to demonstrate that one justice is not so captured. Leaving the court would not relieve its members of the duty of upholding the Constitution. Let the burden and the obloquy of the putsch be on others.
By: Michael Brendan Dougherty, The Week, June 29, 2015
“Must Vow To Never, Ever, Betray The Conservative Cause”: GOP Candidates Will Now Have To Promise Supreme Court Litmus Tests
With two dramatic and far-reaching liberal decisions in as many days at the end of last week, the Supreme Court laid Republicans low, dashed their hopes and spat on their dreams, made them beat their breasts and shake their fists at the heavens. And in both cases, it was a conservative justice (or two) who joined with the liberals to do it. So while there will be a lot of discussion among Republicans about where they should go from this point forward on the issues of health care and gay rights, you can be sure that they’re also going to spend a great deal of time talking about how they can make sure this kind of thing never happens again. Conservatives already hated Anthony Kennedy, and now some have decided that John Roberts is a traitor as well. If you’re a Republican presidential candidate, you’d better have a strong argument for why whoever you’ll appoint to the Supreme Court will never, ever, ever betray the conservative cause.
In the first couple of days, the candidates reacted much as you think they might, with varying degrees of displeasure built on time-tested conservative cliches about judicial restraint and judges not legislating from the bench. Which was a little odd, since in one of two decisions (King v. Burwell), what they were hoping for was a little more judicial activism. Nevertheless, they’ve been saying those things for so long that it may be understandable. So when Hugh Hewitt asked Jeb Bush how he would avoid future betrayals like these, he said only, “You focus on people to be Supreme Court justices who have a proven record of judicial restraint.” Rick Perry said much the same, that he would “appoint strict Constitutional conservatives who will apply the law as written.” Marco Rubio reached farther back, arguing that “As we look ahead, it must be a priority of the next president to nominate judges and justices committed to applying the Constitution as written and originally understood.” Scott Walker issued a statement on his Facebook page about “five unelected judges” but passed on an opportunity to rail about them the next day. If you wanted a real denunciation of the Supreme Court that went beyond an objection to the substance of their decisions, you’d have to go to second-tier candidates like Ted Cruz, who proposed recall elections for Supreme Court justices, or Mike Huckabee, who loaded up his rhetorical musket to march at the Supreme Court redcoats. “I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch,” he said. “We must resist and reject judicial tyranny, not retreat.”
But guess what? That’s not going to be good enough for Republican voters anymore. Here’s what’s going to happen: At one town hall meeting after another, a Republican primary voter will stand up to the candidate before them and say, “What are you going to do about the Supreme Court?” Then everyone else will lean in to listen.
As well they should. Given the ages of the justices (four are over 76 years old) and the fact that the next president will probably have the chance to appoint a liberal to replace a conservative or vice versa for the first time since Clarence Thomas replaced Thurgood Marshall in 1991, there may be no single issue in the 2016 campaign of greater importance than the Supreme Court. If Hillary Clinton replaces a conservative justice, the court would swing to a liberal majority; if a Republican replaces a liberal justice, there would be a solid conservative majority with Anthony Kennedy no longer holding the swing vote.
Right now, conservatives are feeling like they’ve been betrayed. As conservative writer Matt Lewis noted on Thursday, “conservatives thought they had figured it out. The right created an impressive infrastructure and network to identify and promote conservative lawyers, clerks, and would-be judges,” and it was designed to keep these kinds of defections from happening. And Chief Justice Roberts was supposed to be the model for how it would work: a young, accomplished lawyer who did his apprenticeship in the Reagan Justice Department, where, like his colleague Samuel Alito, he imbibed the foundations of conservative legal thinking.
As it happens, the John Roberts whom Republicans are now denouncing as a traitor for his ruling in King v. Burwell is also the justice who engineered the unshackling of billionaires’ money in politics, the gutting of the Voting Rights Act, and the Court’s first declaration of an individual right to own guns — along with dozens of other extremely important and extremely conservative rulings in recent years. If anything, he’s an ideologue but not a partisan, meaning he sometimes does what’s in conservatives’ long-term interests, even if it isn’t what the Republican Party wants at the moment.
But the old Republican cry of “No more Souters!” may now be replaced by “No more Kennedys and Robertses!” Republican candidates are going to have make it very clear to primary voters that they have a whole list of litmus tests, and any lawyer or lower-court judge who fails to satisfy each and every one won’t be getting nominated to the Supreme Court. Vague words about judicial restraint and respecting the Constitution aren’t going to cut it.
I’ve argued before that litmus tests for Supreme Court appointments aren’t a bad thing — instead of having candidates pretend that they’re only interested in finding wise and humble jurists, and having the Court nominees themselves pretend that they have no opinions on any legal questions, we should just get everything out in the open so we can all know what we’re in for. In the past, Democrats have been more willing to discuss the litmus tests they have (particularly on abortion), while Republicans have insisted that they only want judges who will respect the Founders and interpret law, not make law. Of course, that isn’t really what they want — when the circumstances are right, they’re only too happy to have judges make laws (or overturn them) if it produces the outcome they prefer.
So if nothing else, the Republican candidates will have to be a more honest now. But they can’t be too honest. Tell everyone that you will tolerate only Supreme Court justices who will overturn Roe v. Wade, strike down the Affordable Care Act, restrict workers’ rights, roll back environmental regulations and get even more big money into politics, and you coulan, d run into trouble with general election voters. That makes it a tricky balance to strike, which is pretty much the story of the entire 2016 campaign for Republican candidates: Appealing too strongly to primary voters means potentially alienating the broader electorate, on almost every issue that comes up. As dramatic as the past week was, other issues will eventually push the ACA and gay marriage out of the headlines, at least for a while here and there. But in the short run, the candidates are going to face a lot of pointed questions about whom they plan to put on the Supreme Court.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, June 29, 2015
“Stochastic Terrorism”: Did The Four Dissenting Justices In Gay Marriage Case Just Suggest Treason?
In controversial cases, is the role of jurist to inflame controversy, or quell it?
In Loving v. Virginia, the 1967 case which found race-based marriage bans unconstitutional, Chief Justice Earl Warren built a 9-0 consensus—just as he’d done years earlier in Brown vs. Board of Education. He knew that a country divided by race ought to be united, if possible, by a Supreme Court mindful of fundamental values—even if the Court was, as the constitution requires, overturning the will of the majority.
The four dissents in the landmark case on same-sex marriage, Obergefell v. Hodges, one by each of the conservative justices on today’s Supreme Court, take a very different view. With invective and hyperbole, they pour fuel on the fire of the controversy over same-sex marriage. Rather than merely state their views and disagreements, they use heated language to accuse the five-person majority of imperialism, a “putsch,” and worse.
Thus, the unprecedented calls of elected officials for open revolt against the Supreme Court—a shocking display of treason—are now accompanied by calls from within the Court itself that Obergefell is illegitimate, and the Supreme Court itself no longer worthy of full respect.
Ironically, in alleging a new low for the Court, these four justices have brought one into being. Justice Scalia has, as usual, grabbed the spotlight with juvenile taunting usually reserved for the playground. But in fact, all four opinions are shocking.
Chief Justice Roberts (joined by Scalia and Thomas) makes a solid, and unsurprising, substantive case. There is, after all, no explicit right to marriage (for gays or anyone else) in the Constitution; it is, rather, a fundamental right inferred into the Fourteenth Amendment’s guarantees of due process and equal protection. Thus, one might expect a judicial conservative like Roberts to be suspicious of expanding it, particularly when doing so runs against the expressed will of a majority of state legislatures.
But the way he chose to cast his argument ill befits his status as chief justice. “The majority’s decision is an act of will, not legal judgment,” he writes. That is absurd: the court’s decision runs thirty pages, full of all the legal judgments, precedents, and statements of principle one would expect.
But that’s just the beginning. Across four pages, Chief Justice Roberts analogizes Obergefell to the Lochner v. New York decision, one of the most notoriously wrongheaded in Supreme Court history. Lochner means nothing to most people, but to anyone who’s finished the first year of law school, it’s a swear word.
He’s still not done. The Chief Justice of the United States then states (quoting a concurring opinion by Justice Kennedy) that “the legitimacy of this Court ultimately rests ‘upon the respect accorded to its judgments.’ That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change.”
In other words, the majority is arrogant, unrestrained, and thus not to be respected. It has an “extravagant conception of judicial supremacy.” “Those who founded our country would not recognize the majority’s conception of the judicial role.” And “The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it.”
Why not just tell the Religious Right to buy pitchforks and blowtorches? Chief Justice Roberts’ ironic opinion is immoderate in alleging immoderacy, extreme in alleging extremism.
Justice Scalia came next. And he begins thus: “I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.”
It seems inevitable that rhetoric like this will stir the next Confederate flag-waving zealot to an act of, if not domestic terrorism, at least outrageous revolt. How could it be otherwise? And yet this, too, was only the first line.
The next line is, at best, disingenuous: “The substance of today’s decree is not of immense personal importance to me.” As if. This from the man who, 12 years ago, wrote in his Lawrence v. Texas dissent that the Court “has largely signed on to the so-called homosexual agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
Is that what the LGBT equality movement is about? Throughout Justice Scalia’s hysterical writing in LGBT-related cases, he has doggedly maintained that their subjects are merely “homosexual conduct” and “homosexual sodomy.” That there are, in fact, gay and lesbian people is not part of Justice Scalia’s worldview, as he has shown time and time again. There is only homosexual conduct.
And yet he says, like a “no homo” jock in a locker room, “Hey, I don’t care if you’re gay.”
Once again, just getting started. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” That is outrageous rhetoric and an outrageous sentiment. The decision is not a “decree.” The Court is not a “Ruler”—it is an Article III interpreter of the Constitution, at its most important when it protects minorities against the will of the majority. Even demeaning Supreme Court justices as “lawyers” is a sign of disrespect.
Other statements are similar. “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.” “What really astounds is the hubris reflected in today’s judicial Putsch.” And, “With each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
Others have already quoted Justice Scalia’s rhetoric—“jiggery-pokery” and the rest—at length, so I won’t spend much time with it here. Because in fact, his jurisprudence is far more shocking. Watch this:
When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.
I have quoted this passage at length so there is no misunderstanding. What Justice Scalia is saying here is that if it was “universal and uncontroversial” in 1868, it’s obviously okay now. That principle, of course, would allow states to ban interracial marriages, including that of Justice Thomas. It would allow states to bring back the doctrine that a woman surrenders all her rights to her husband upon marriage. It is shocking.
To be sure, it is also of a piece with Justice Scalia’s “originalism” and is not, as such, novel. But its strict application here places Justice Scalia in a bizarre twilight-zone of 19th century values.
Likewise, Justice Thomas’s description of “the dangerous fiction of treating the Due Process Clause as a font of substantive rights.” That “fiction” has protected rights to contraception, to abortion, and to all kinds of intimate family matters. Justice Thomas’s reactionary jurisprudence would erase half a century of gains in the area of civil rights.
And likewise Justice Alito’s talking-point dictum that the opinion will be “used to vilify Americans who are unwilling to assent to the new orthodoxy.” This, of course, is a commonplace on the Religious Right—but its appearance in a Supreme Court opinion is nonetheless shocking.
But it is Justice Alito’s parting jab which resonates the most. Obergefell, he writes, evidences “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” This from someone who joined an opinion overturning fifty years of due process jurisprudence, and another arguing a return to 1868’s family values.
“All Americans,” he concludes, “should worry about what the majority’s claim of power portends.” Claim of power—as if the Constitution does not empower the Court to do exactly what it has done: use reasoning and interpretation to defend constitutional rights against laws that would abridge them.
These are, as the saying goes, fighting words, and more importantly, they are words that will inspire others to fight. They are what some call “stochastic terrorism,” the broadcasting of a message so incendiary as to inspire some “lone wolf” to violence—if not actual violence, then precisely the kinds of anti-democratic, anti-American defiance we have already seen among some politicians.
Were the targets of such acts only gays and lesbians, it would be bad enough. But these four dissents have encouraged disrespect of the Supreme Court itself. Agree or disagree with the Court’s method of interpreting the Constitution, they are acts of vandalism against one of the foundations of our democracy.
By: Jay Michaelson, The Daily Beast, June 27, 2015
“The GOP’s Obamacare Alternative; Crickets”: Now Railing Against Obamacare Without Having To Come Up With A Replacement
Now that the Supreme Court has saved the Affordable Care Act for a second time, what do Republicans do? We already know they won’t tone down their rhetoric and will continue to call for repeal because that’s what Republican primary voters want to hear. The candidates will package together vague alternative proposals that they will pledge to pass and enact as the first act of their presidency.
But they don’t have even a remote chance of repealing the ACA, even if a Republican is elected president in 2016.
“The ruling is the last gasp,” says Chris Jennings, a health policy expert who worked in both the Clinton and Carter administrations. While the presidential contenders will keep alive the hope for their base that if elected they can sweep away Obamacare, Jennings says the issue will be dead and gone by fall 2016. The voters will have moved on.
Conservatives feel betrayed yet again by Chief Justice John Roberts joining with the liberals on the Court to uphold the constitutionality of the ACA, but they should thank Roberts. He saved the GOP from having to bail out 6½ million people, the majority of them in red states, who would have lost their health insurance if the Court had ruled the other way.
Now Republicans can continue to rail against Obamacare without the responsibility of actually coming up with a law to replace it. “This decision gives them a vast canvas on which to write,” says Jack Pitney, a government professor at Claremont McKenna College in California. “There’s no need for immediate replacement, so rhetoric will fill the vacuum of legislation.”
There will be proposals, enough to satisfy the GOP faithful that the presidential candidates are doing something to end the abomination of Obamacare. But these will not be serious efforts because it is not possible to write health-care legislation that leaves in all the goodies everybody supports, like no discrimination for preexisting conditions, and leaves out what people oppose, like the mandate.
A reading of the majority opinion written by Roberts reveals that he paid close attention to the argument put forth by the health insurance industry in an amicus brief. Without the subsidies, millions could not afford coverage and only those with significant medical expenses would apply, sending the ACA into a “death spiral.”
The Roberts Court handed another lifeline to President Obama, but the decision is also a huge victory for the health industry. Asked how difficult it is for the GOP to step in with their own plan to counter Obamacare, Ceci Connolly, a Health Research Institute Leader and a former Washington Post reporter covering politics and health care, countered with some hard numbers. “The 2.9 trillion dollar health sector is exceedingly complex and changing; it takes an enormous amount of time and work,” she said. “Not only has the ACA expanded coverage, it has pumped billions of dollars in revenue to the health industry, and going back would upset a very large and important market.”
If the subsidies were removed or denied, it would have cost the health industry $36 billion in premium revenue next year alone, Connolly told The Daily Beast. Hospitals would have seen their revenue fall about $9 billion. While still a fraction in a huge market, “that’s real money to the industry,” she says. “The legislative process is cumbersome to say the least, and it would be a steep climb to replace the ACA.”
If a Republican president is elected, and the GOP retains the Senate along with the House, “that’s a new ballgame,” Connolly said. “But by 2017 the law would have been implemented for seven years. It’s very hard to take away benefits and significantly restructure a market as big as the health care market.”
Connolly noted that the executives her research group talks to around the country anticipated the decision to come down the way it did. “They could not imagine the subsidies being taken away.”
The phrase that political scientists use is “past dependency.” Once a major policy is entrenched, it’s very difficult to change in a major way. We’ve seen that with social security and Medicare, programs that President Obama invoked in his remarks in the Rose Garden about the ACA’s rite of passage into “the fabric of America.”
By: Eleanor Clift, The Daily Beast, June 25, 2015
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