Category Archives: Law: The Supremes

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.

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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.”

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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.

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Adam Winkler, The Roberts Court is Born:

Roberts may have voted to save healthcare because he wants to preserve the Court’s capital to take on other big issues heading toward the Court. Legal experts predict the Roberts Court will invalidate a key provision of one of the most important laws in American history, the Voting Rights Act, next term. And the Court is set to end affirmative action in public education. Both policies have been centerpieces of America’s commitment to civil rights for over forty years.

The Voting Rights Act? Really?

Robert E. Malchman, John Roberts, evil genius:

[T]he survival of the Affordable Care Act eliminates any clamor for real, progressive health care reform, whether universal Medicare or for the creation of a public insurance option. Such programs are anathema to conservatives who want most things privatized — either for ideological reasons or so that their corporate masters can further enrich themselves.

Roberts has permitted the implementation of a conservative health-care regime, energized the Republican base, preserved his ability to vote against liberal congressional measures as violating the commerce clause and aggrandized himself as an apolitical Chief Justice. I tip my hat to his evil genius.

Steve Benen, How far the four dissenters were willing to go:

The four dissenters demanded that the Supreme Court effectively throw out the entirety of the law — the mandate, the consumer protections, the tax cuts, the subsidies, the benefits, everything.

To reach this conclusion, these four not only had to reject a century of Commerce Clause jurisprudence, they also had ignore the Necessary and Proper clause, and Congress’ taxation power. …

Roberts’ motivations notwithstanding, it’s important that Americans understand that there are now four justices on the Supreme Court who effectively want to overturn the 20th century. Based on the flimsiest of arguments, the four dissenters want to kill progressive legislation basically because their political ideologies tell them to do so.

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When Is a Tax Not a Tax?

The Supreme Court has upheld the very large majority of the health care bill. In particular, it upheld the individual mandate 5-4 (with Roberts, without Kennedy) on the grounds that it is a tax — having rejected it as a valid application of the Commerce Clause.

But for purposes of the anti-Injunction Act (always my favorite grounds for decision, but pretty clearly not a winner after its reception below not to mention the oral argument and the Administration’s attempt to disclaim the argument), the individual mandate is not a tax.

That sounds odd. But the opinions are long, and I need to read them to see how that happened.

Update: The answer seems to be statutory interpretation — Congress gets to say when things (tax or not) are covered by the anti-injunction act, and the five Justices in the majority don’t see Congress as intending that result here given the choice of the word “penalty” for the mandate’s fines while “tax” was used elsewhere. The principle asserted is that for Constitutional purposes the Court must look through Congressional labels to see what things really are, but that for statutory interpretation involving the interplay of different statutes, in principle Congress gets to call things whatever it likes and here the Court is reading in the not-a-tax-for-anti-injunction-purposes meaning from the statutory word choices.

Posted in Law: Constitutional Law, Law: The Supremes | Leave a comment

It’s SCOTUSBlog’s Health Care Moment

Like much of the US legal world, I’ll be following the liveblog at SCOTUSBlog this morning to see what the Supreme Court does to representative government. SCOTUSBlog says they spent $25,000 just beefing it up to handle the slashdotting they expect to get around 10am today.

Fortunately, there’s a way to turn off the horrible little clicking noise their liveblog makes ever time one of the participants posts something.

I don’t know if I’ll have anything to say about the decision after it issues; that depends in part on what it says. Given the mountain of instant commentary there surely will be, I rather suspect I may not have much to add.

On pure precedent, the case should be a no-brainer for upholding the statute. The strongest case for anything less is that Wickard, one of the best cases for upholding it, is something of an outlier. It’s possible to see Wickard as an unwelcome guest at the Commerce Clause table, as the rule in that case seems so broad that there are almost no limits on the Commerce Clause. My own view, however, is that even without Wickard, the health care law passes muster because I think Chief Justice Marshall set us on that path when he tied the Commerce Clause’s reach to the reach of the national market. As the nation’s markets have become truly national in more and more areas, Congressional power has, I believe, grown with it.

I am not that interested in the debate over whether this is what the Framers, or the Ratifiers, expected. I think that John Marshall’s views in this area have become, and should be, authoritative and are hallowed by time even if they may have represented something of a Federalist coup (or time bomb) when delivered. I would say the same about Marbury v. Madison. I do not mean to suggest here that Marshall’s views can never be overruled, only that there has yet been no good reason to do so, and this is not it. Indeed, principles of subsidiarity counsel that national issues should be regulated nationally; health care is clearly such an issue given its economic impact and the national effect of both failures of health care (e.g. epidemics) and of health care financing.

A purely political ruling, whatever its nature, would be a sad thing for the Nation. We have in the past decade or so eaten a great deal of our moral and intellectual seed corn, a fact reflected in poll results showing declining confidence in our institutions. Bush v. Gore has made me unwilling to teach Constitutional Law, and makes even Administrative Law harder at root. Legitimation is valuable; legitimation crises are painful.

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