Category Archives: Law: The Supremes

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 | 1 Comment

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

John Oliver Makes Supreme Court Oral Argument Much More Interesting to Watch

Do not watch while drinking coffee.

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UnderStanding the Sting in Hollingsworth v. Perry

I’m of course happy that the Supreme Court today issued two rulings that affirm the validity of state-sanctioned same-sex marriage. The full texts are at US v. Windsor and Hollingsworth v. Perry.

But I have to say that there is some bitter wrapped up in the sweet. Chief Justice Roberts’s opinion in Hollingsworth has a pretty bad sting, one well laid-out in Justice Kennedy’s dissent. The issue for me goes back to a key standing decision, Lujan v. Defenders of Wildlife, 504 U. S. 555 (1992). That decision held open the door to ‘bounty’ statutes creating standing: thus if Congress, or a state legislature, wanted to create generalized standing, it need only create a small dollar prize for vindicating a right. At that point, there’s a financial interest, and anyone can bring the case. (Thus, for example, qui tam actions.) As a general matter, liberals have wanted to expand access to courts, and conservatives have sought to narrow it — although one might question the political wisdom of the liberal strategy since the current Court is, IMHO, merely regressing to a historic mean; the Warren Court was a rare departure from the generally conservative, even reactionary, bent which is almost a structural feature of a life-tenured judiciary staffed primarily by older lawyers.

The key move in Hollingsworth, per Roberts with the votes of Scalia and (perhaps unfortunately?) the Court’s moderates and liberals, is to say that California’s state law practice of saying that proponents of a ballot initiative have standing to sue to vindicate it does not cut any ice in federal court. I hope this does not come back to bite us, but I’m fairly sure that it will in future standing cases.

Update: Mark Tushnet is worried about this too. In Perry and the Constitutionalization of Agency Law he writes:

The question then is, What other state-law entitlements are constrained by Article III for standing purposes? (Here “state-law” is a shorthand for “entitlements created by law outside Article III,” so the principle applies to congressionally-determined entitlements as well.) Akins says that Congress can create a right to information merely to satisfy the requestor’s curiosity; Lujan says that Congress can’t create a right to ensure that “the law” be adhered to. Perry is somewhere in between, but who knows exactly where. Maybe the technical problem in Perry is that the California Supreme Court didn’t use the right magic words to describe the initiative proponents as “really, really” agents of the people.

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

Happy Flag Day

Harold Wasserman has a nice Flag Day post, celebrating the 70th anniversary of West Virginia State Bd. of Educ. v. Barnette. He calls it “a high point in U.S. Supreme Court history.”

Posted in Law: Free Speech, Law: The Supremes | Leave a comment


Justice Sonia Sotomayor issued a blistering statement today concurring in the denial of cert in Calhoun v. US. While agreeing with the Supreme Court’s decision on procedural grounds, Sotomayor — with (only) Breyer joining in — tore into the prosecutor in the underlying case for making an “argument[] calculated to appeal to the prejudices of the jury” and tapping “a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation.”

The statement is powerful stuff. Justice Sotomayor mercifully does not name the prosecutor in her statement, thus saving him or her a lifetime of Internet-search-aided indignity.

Posted in Law: The Supremes | 7 Comments