Category Archives: Law: The Supremes

Pop Quiz

The “International Order of St. Hubertus” is:

A) A key part of the plot in J.K. Rowling’s next Harry Potter novel.

B) A mythical secret society said to have originated in Oxford.

C) A society of rich hunters who were having a meeting at Cibolo Creek Ranch where Justice Scalia died.

D) A knightly order founded by Count Franz Anton von Sporck in Bohemia in 1695, and currently headed by Grand Master His Imperial Highness Istvan von Habsburg-Lothringen, Archduke of Austria; its U.S. chapter launched in 1966 at the famous Bohemian Club.

E. (A) & (B) above

F. (C) & (D) above.
Continue reading

Posted in Law: The Supremes | Leave a comment

How Obama Can Get a SCOTUS Nominee Confirmed

Here’s the optimal strategy if the President’s goal is to get a nominee past an obstructionist Republican Senate: appoint a flaming liberal as a recess appointment Justice, and couple that with the nomination of a middle-of-the road Supreme Court nomination for the permanent seat on the Court.

For the next few days — and only for the next few days — President Obama (arguably) has the right to make a recess appointment to the Supreme Court. To the limited extent there is a tradition (the appointment of Justice Brandeis), the tradition is that if a recess appointment is made the President then nominates the same person for a lifetime appointment.

But that tradition has quite a lot working against it. For starters, it means at least temporarily one Justice not only lacks lifetime tenure, but has to make decisions either with an eye towards confirmation, or in the teeth of the cost to possible confirmation. In these polarized times, that is asking a lot. Plus there is a real danger that the Justice is not confirmed in the end.

Why not instead appoint a temporary Justice, someone old enough for it to be the capstone to a distinguished career, and then a different, younger, person for the permanent position. Make the temporary appointment someone very very liberal (Patrica Wald? Stephen Reinhardt?); make the permanent appointment someone more moderate. Since the confirmation of the permanent Justice immediately removes the recess appointment Justice from office, the sooner he or she is confirmed, the fewer decisions the more liberal appointee gets to vote on. Thus, a vote against the permanent appointment becomes a vote for keeping the more liberal Justice in office. Not only does it put the GOP in a bind, but it creates cover for voting for the Democratic nominee.

On balance, I’m not sure I like this strategy as it ends up with a middle-of-the-road Justice, but unlike most other things I can think of, it does have some chance of working. You heard it here first.

Posted in Law: The Supremes, Politics: US | 11 Comments

Justice Scalia Dies

Justice Scalia has died, a fact said to be confirmed by the Governor of Texas. Scalia was on a quail-hunting trip in Texas; although the reports say he died in his sleep.

While family and friends mourn, the rest of the world will be thinking of his successor and the political consequences of his absence. Supreme Court appointments in a lame-duck year of a Presidency are a difficult business; in the current climate it could be impossible unless President Obama finds someone of such stature that not to confirm him or her would be ridiculous. Even if such a person exists, it might be a heavy lift.

Most likely, the nomination will become part of the Presidential campaign, the visible stakes for which just went up a notch. Let’s at least hope that the candidates refrain from enunciating too many ‘litmus tests’ which could have the effect of opening the door for demands for recusal by anyone confirmed.

The gridlock in DC also raises the possibility that the 9th seat might be open for a long time. Certainly the political center of the court just shifted: even when Justice Kennedy votes with the conservatives, the result will be a 4-4 tie, affirming the lower court by an evenly divided court–a result that affirms the decision but does not set a national precedent.

In the short term, this new political balance may change the dynamics of the review of the EPA’s clean power plan: the 5-4 stay by the Supreme Court is no longer as strong a signal that an affirmance below would be reversal bait. On the other hand, less changes in US v. Texas (the immigration case), since there the lower court ruled against the administration’s actions in deferring deportations.

Posted in Law: The Supremes | 4 Comments

Purely Hypothetical Questions

Suppose that one became convinced that a member of the Supreme Court was a racist, or had a bias either in favor of a particular religion or against a particular religious view. Would any of these constitute grounds for impeachment and conviction?

Would your answer to this question turn on whether the views manifested in judicial opinions, or only in in-court colloquies, or only in out-of-court writing or speaking?

Posted in Law: Constitutional Law, Law: The Supremes | 2 Comments

John Roberts for President

He could be the savior the GOP Establishment is looking for.

One of the storylines in the current GOP Presidential campaign is that the party establishment has been looking for its candidate.  It was supposed to be Jeb!, he of the $100 million war chest, but he’s cratered. Meanwhile Trump and Carson sucked out the oxygen of the others.  Rubio is still in the tryout phase, and apparently the powers that be are not sure if he has the necessary gravitas, or even any at all.

Things are so bad that stories about the Establishment wanting to draft Romney keep popping up.  Romney polls well in New Hampshire. But I don’t think he’ll do well in the general election, for the same reasons Romney lost last time.

No, what the GOP needs is a fresh face.  Someone articulate.  With gravitas.  With no baggage.  And great conservative credentials.  Who is pro business.  Who won’t scare the horses.

And what better person could fit all those criteria than Chief Justice John Roberts?

Yes, a few die-hards may be angry that Roberts cast the deciding vote to keep ObamaCare alive, but many will forgive him after he guides the Court to strike down the remaining vestiges of affirmative action (Fisher v. University of Texas), to undermine labor unions by destroying their budgets (Friedrichs v. California Teachers Association), to kill Obama’s immigration policy (United States v. Texas (docket 15-674)), and to impose new restrictions on abortion (Whole Woman’s Health v. Cole). If all that that wasn’t enough, Roberts might even be able to say that as a Justice he had to apply the law on ObamaCare, but as President he’d work to repeal it.

Of course, the Chief would have to step down temporarily from the Court, but after he helped create a new Republican majority, surely Roberts’s GOP successor as President would appoint him to the first available opening.

Good thing that when the Chief Justice said recently that he would not run for President he did not take a Sherman.

Then again, Roberts is pretty smart. He may figure he has more power where he is.

Posted in 2016 Election, Law: The Supremes | 2 Comments

Obamacare Decision Harbinger?

“Our job is to follow the text even if doing so will supposedly undercut a basic objective of the statute,” says a five-Justice majority in Baker Botts v. ASARCO, LLC, slip op. at 13 (quoting from the dissent!). Justice Sotomayor concurred in the opinion — except as to that section. Breyer, Ginsburg, and Kagan dissented.

Is this an indication of the likely result in King v. Burwell, the Obamacare decision due in the next few days? That case turns on whether to read one line out of context of the rest of the statute. (Non-jargony summary of the issues here.)

Justice Kennedy, the swing vote, signed on to the formalist view in yesterday’s bankruptcy decision. On the other hand, there was less evidence that Congress intended to let the Bankruptcy bar bill for defending fee petitions than there is about the intentions of Congress in the Affordable Care Act — if, that is, you are willing to read beyond the clause at issue.

Posted in Law: The Supremes | 16 Comments

Keep Guessing

Ruthann Robson runs through the options as to whether today’s immigration/marriage case allows us to predict much about the coming same-sex marriage case.

You’d think it might…but she’s persuasive that it doesn’t…necessarily…

In United States Supreme Court’s fragmented and closely divided decision in Kerry v. Din, the majority rejected the procedural due process argument of a naturalized American citizen to an explanation of the reasons supporting a denial of a visa to her noncitizen husband.  Justice Scalia, writing for the plurality and joined by Thomas and Chief Justice Roberts, concluded that she had no cognizable liberty interest attributable to her marriage.  Justice Kennedy, joined by Alito, would not reach the liberty interest issue because the process here was all that was due.  Justice Breyer, dissenting, and joined by Ginsburg, Sotomayor, and Kagan, would affirm the Ninth Circuit and find that she had a cognizable liberty interest and that more process was due in the form of a more precise and factual explanation.

So what might this mean for Obergefell?  Most obviously, the dissenting opinion by Breyer, and joined by Ginsburg, Sotomayor, and Kagan, articulates an expansive liberty interest in marriage under the Due Process Clause that could be easily imported into Obergefell.  On Justice Kennedy’s concurrence, joined by Alito, the clear signal is that Justice Scalia’s refusal to recognize a liberty interest in marriage is not one to which they are subscribing – – – in this case.  Given that Justice Kennedy, as author of the Court’s opinions Windsor, Lawrence, and Romer v. Evans, is being closely watched as potential author of an opinion in favor of Obergefell, there is nothing in Din that would mitigate that judgment. As for the plurality, Justice Scalia’s derogation of substantive due process has a familiar ring that might be echoed in his opinion in Obergefell, with an emphasis on history.  While Justice Thomas is widely expected to agree with Scalia’s position, does the Chief Justice’s joining of Scalia’s opinion in Kerry v. Din signal a disapproval of recognizing any liberty interest in marriage?  Perhaps.  But perhaps not. 

Lots of good explanation follows.

Posted in Law: Con Law: Marriage, Law: The Supremes | Leave a comment