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John Roberts and Elena Kagan: Mirror Images of Each Other

The second biggest surprise of the day, after the survival of the Affordable Care Act, is that we’ve never really gotten over our collective crush on John Roberts. How else to explain today’s outpouring of praise, not merely for the decision but for the man himself, for his statesmanship and judicial modesty? All these years, it now appears, we’ve held it in our hearts; we’ve written it in our diaries, remembering every one of those sweet nothings he once whispered about “common ground” and “humility.” No, we never really gave up on Roberts. Not during that long judicial bender he took with the boys—Nino, Clarence, Tony, and Sam; not during the Citizens United argument, when he called the government “big brother”; not when he swept away a century’s worth of campaign finance regulations. So complete is our swoon, in the afterglow of the ACA ruling, that Bob Shrum has written that if Roberts had been Chief Justice in 2000, Bush v. Gore might have gone the other way.

To which I posted the following comment:

I write on legal and political issue issues for a left-of-center blog and have indicated there that I detest and really fear John Roberts because of his deeply diabolical nature and his checklist of ‘80s-era Federalist Society things-to-do.   Linda Greenhouse has written several columns, two or three of them within the last few months, highlighting those two quintessential John Roberts traits.  But Greenhouse, and I, predicted that Roberts would save the ACA because the case is so high-profile and the grounds for striking down the statute so utterly artificial that it would place more public scrutiny on the types of things he and his cadre normally get away with with virtually no public awareness.  I don’t think he did what he did out of a sense of statesmanship, nor in order to gut the Commerce Clause; I think the Commerce Clause ruling will have almost no practical effect, and he could have done the same thing with it simply by joining the other four conservatives in a 5-4 ruling striking down the ACA. 

I think he’s, in a way, the mirror image of Elena Kagan, who in high-profile cases usually votes liberal but who, best as I can tell, almost never goes out on a limb for the “nobody” “cert” petitioner and actually fights to get a “cert grant,” as Sotomayor does, and who I’d bet doesn’t even vote very often to hear such cases.  Her priorities seem to be her own public image and being buddies with the “in” crowd on the Court, whereas Roberts’ priority is making as many dramatic changes to the law as he can, but doing so as much under the public’s radar as possible.  (I also think Kagan is a bit naïve on some issues because of her unfamiliarity with them—see, e.g.: federal habeas review of state-court convictions—and fairly easily snowed.)

So I agree with Ken Houghton in his post below that John Roberts is not the friend of progressives.  I disagree with Ken, though, that Roberts has set up some trap through which he will later orchestrate the striking down of the ACA as a violation of equal protection because of the way in which the Medicaid expansion is administered (if I understand Ken correctly) is nil.  Roberts ended his opinion with a statement saying that the proper manner in which to determine the ultimate fate of the ACA is through the political process, not the judicial process—and I think he means it.  There are two parts of Roberts’ opinion—the part concerning Congress’s regulatory powers under the Commerce Clause and the part concerning Congress’s power to enact federal-state partnership legislation a la Medicaid—that raise serious concerns about the impact on otherlegislation.  I wrote separate posts yesterday about each of these, and I’ll be writing another one on Medicaid issue later today. 

But any lawsuits concerning some aspect of how the law is working in practice, once it gets underway, would result in the possible tweaking of an HHS regulation or in the manner in which a particular state is implementing the Act, but I just don’t foresee a successful attack on the constitutionality of some provision in the Act itself. 

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Thank you, Judge Posner

The chief justice, echoing Justice Scalia’s “broccoli” comment at the oral argument, rejected (as did the four dissenters, and so that is now the view of a majority of the justices) the Commerce Clause ground for the mandate, saying that to accept that ground would mean that “Congress could address the diet problem by ordering everyone to buy vegetables.” This argument, reassuring though it is to our obese population, confuses separate constitutional provisions. The Commerce Clause would empower Congress to order everyone to buy vegetables, because the market for most vegetables is interstate, but the “liberty” protected against the federal government by the Fifth Amendment would doubtless be interpreted to forbid such an imposition, just as it would be interpreted to forbid a federal law requiring everyone to be in bed with the lights out by 10 p.m. in order to economize on the use of electricity and, by doing so, reduce carbon emissions from electrical generating plants.

— Judge Richard A. Posner, on Slate, 5:38 p.m. today


Justices Ginsburg, Breyer, Sotomayor and Kagan also made that point, in their concurrence today.

I’m thrilled to be in such exalted company.

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My opinion: Almost no practical limiting effect on Congress’s regulatory powers

Some people think Roberts cleverly used this case to severely limit Congress’s regulatory powers.  Others strongly disagree.

I’m with the others.

I think that as a practical matter, this will have almost no limiting effect at all on Congress’s regulatory powers.  I can’t think of any circumstance in which this limitation would apply and in which there would be no other enumerated power under which Congress could enact the law.  In this case, the other enumerated power is the taxing power.  In the case of, say, the Selective Service Act, the enumerated power is the power to provide for the national defense.  Etc.

The reason that this limitation is insignificant is that the Commerce Clause argument was really a disguised Fifth Amendment due process (liberty! broccoli!) argument, and Roberts flatly rejected that.  He said, no, the Commerce power doesn’t allow this but the taxing power does—and, no, it doesn’t violate fundamental constitutional concepts of freedom, of liberty!  There may be other things that could be compelled under the taxing power—broccoli purchases, maybe—that would violate Fifth Amendment due process concepts (freedom! liberty!) and thus be unconstitutional on that basis, just as there are things that could be compelled under the Commerce power that would violate that concept of due process and thus be unconstitutional on that basis.  But this does not violate that concept of due process (freedom! liberty!). 

No, Roberts didn’t specifically separate the two concepts—Commerce Clause limitations and Fifth Amendment due process—and, yes, he does almost seem to conflate them the language Scocca quotes.  But the bottom line is that he found no due process (freedom! liberty!) problem with the mandate and penalty, and therefore no slippery slope to broccoli in this instance, even though he says the Commerce power isn’t broad enough to authorize the statute.  

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The hint of the outcome during the first day of oral argument (on the impact of the Anti-Injunction Act on the Court’s jurisdiction to hear the ACA case)

I think there was a clue to Roberts’ thinking during the first day of argument—during the argument on the applicability of the Anti-Injunction Act, an obscure “jurisdictional” statute, which precludes courts from ruling on the constitutionality of a federal tax until after the statute becomes effective and the tax actually is due.  Roberts really indicated during that argument that he was interested in finding a way to rule that the penalty was a tax for purposes of Congress’s taxing power but not a tax for purposes of the Anti-Injunction Act.  That would remove the issue of whether the mandate was within Congress’s Commerce power, since if it is a tax, the mandate and penalty/tax are within Congress’s taxing power.  And then the only issue would be whether this violated the Fifth Amendment’s due process clause (liberty! broccoli!).

Late in the argument on the mandate issue the next day, under questioning by Sotomayor, the challengers’ lawyer, Paul Clement, conceded that under its taxing power, Congress could do pretty much the same thing as it did under what Congress thought its Commerce power allowed it to do.  That effectively killed the due process (liberty! broccoli!) argument, since for purposes of that argument, it made no difference which Congress’s powers authorized it to enact the mandate and the related penalty.  

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The difference between Social Security/Medicare and Medicaid under the Spending Clause, in light of the ACA opinion

While the Court’s upholding the mandate is deservedly taking front stage in the media coverage, the Court’s decision to strike down a part of the Medicaid expansion may ultimately have broader jurisdprudential consequence.  That, at least, will be a subject of debate among lawyers and academics in the days and weeks to come.  This is the first time (as far as I know) that the Court has actually found a Spending Clause condition unconstitutionally coercive.  Whether it establishes principles that make many other programs vulnerable is a question that will require further analysis and debate.  Lyle Dennisten will start that analysis in an post later today or tomorrow morning.

— Kevin Russell, Medicaid holding may have broadimplications, SCOTUSblog

I one of the many updates to my initial post this morning, mentioned this exchange between Lyle Denniston and Tom Goldstein (SCOTUSblog’s publisher:

Lyle: The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.

Tom: I dissent from Lyle’s view that the Commerce Clause ruling is a major blow to social welfare legislation. I think that piece of the decision will be read pretty narrowly.

 I wrote:

I’m almost always in agreement with Lyle’s analyses (as is, I’m sure, Tom Goldstein, who is the blog’s publisher and also a major Supreme Court litigator; Amy Howe, also a lawyer, is Goldstein’s wife).  But, like Goldstein, I disagree with Lyle on this one.  In order for the Court to interpret this opinion as limiting Congress’s authority to enact social welfare legislation, the Court would have to place in question a slew of current, longstanding social welfare programs.  I don’t think that was Roberts’ intent—really, I don’t—and I don’t think the opinion will be viewed that way.  Unless, of course, Romney wins and appoints a wingnut to replace, say, Ginsburg if her health does not hold out.  

Here’s what I think will happen: 

But first, I need to point out that Medicaid, unlike Social Security and Medicare, are programs structured as partnerships between the respective states and the federal government, each paying some portion of the cost, and that Medicaid has always contained a provision that makes state participation voluntary and that allows states to remove themselves from the program if they want to.  Social Security and Medicare, by contrast, are solely federally-funded and federally-run programs. 

The 26 states that challenged the ACA’s Medicaid provision argued that a provision in the Medicaid section of the ACA allows the federal government to withdraw all federal funds for a state’s entire Medicaid program—that is, the money it already is receiving—if a state opts out of the Medicaid-expansion part of the ACA.  The states argued that this was too coercive and therefore violates principles of state sovereignty.  Seven justices—the four dissenters, Roberts, Breyer and Kagan—agreed with that claim, and so they ruled that, while the federal government can put conditions on its funding of the new expansion, and can withdraw the money for that expansion if a state doesn’t comply with the conditions, the federal government can’twithdraw funding also for the earlier parts of Medicaid that the state already was receiving.
Sooo …. this ruling certainly (in my opinion) appears to have no effect whatsoever on any program funded entirely through, and administered by, the federal government.  And i tappears to have no effect on any social welfare program that is a partnership between states and the federal government as long as there is no threat by the federal government to withdraw funds already being given to the state for something else, in order to get the state to agree to participate in the new partnership, or in the new part of the part of the partnership.

I just don’t see how this restricts in any significant way Congress’s ability to enact social welfare programs.  I think that ruling is really very narrow.

As an aside, I want to mention the four dissents who wanted to strike down the entire ACA tried to at least persuade Roberts that the entire Medicaid-expansion part of the statute simply because that one provision in that part of the Act was ruled unconstitutional—even though, as Roberts points out, the Act includes what’s known as a “severability” provision providing that if any particular section of the Act is ruled unconstitutional, the section should be severed from the remainder of the statute, and the remainder should remain in force.  This let’s-see-if-we-can-get-the-tail-to-wag-the-dog-and-win-on-this-part-at-least tack of the minority was so transparently inappropriate that Roberts, in responding to it in his opinion, seems downright offended by it.  Good for him.  

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From SCOTUSblog: The individual mandate survives as a tax. OH. MY. GOD!!!! — REPEATEDLY UPDATED (seven updates so far)

UPDATE: From SCOTUSblog: “The bottom line: the entire ACA is upheld, with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.”


SECOND UPDATE: The opinion is 5-4, with Roberts voting with the Dem appointees and writing the opinion, and Kennedy writing the main dissent.

Here’s more from SCOTUSblog:

The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.


The court reinforces that individuals can simply refuse to pay the tax and not comply with the mandate.


“Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.” (p. 55)

And (added after second update was posted):

Another way to think about Medicaid: the Constitution requires that states have a choice about whether to participate in the expansion of eligibility; if they decide not to, they can continue to receive funds for the rest of the program.

The most talked-about part surely will be “individuals can simply refuse to pay the tax and not comply with the mandate” part.  Is it really a mandate at all if there’s no penalty for refusal to comply?  So maybe it’s not a total victory, after all.  But it’s still a big, big victory.  

(The Medicaid part of the ruling has no effect on the breadth or implementation of the law at all.)


Correction from SCOTUSblog (and HT to buffpilot in the comment to my post):

Apologies – you can’t refuse to pay the tax; typo. The only effect of not complying with the mandate is that you pay the tax.  

Looks like everything revolves on it being a tax.  

Ah-hah!! It IS a TOTAL, TOTAL victory.  !!!


Again from SCOTUSblog:

In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.  

Yup. Total, total victory.  


From SCOTUSblog:

The Court holds that the mandate violates the Commerce Clause, but that doesn’t matter b/c there are five votes for the mandate to be constitutional under the taxing power.

Well, kudos, to … um … me.  I called it pretty nearly spot-on.  I began to sort of wonder in the last few days whether in fact I really was onto something, because my post from June 15 laying that out (again) kept getting more and more “hits” as the days went by.  Usually my posts stop getting “hits” a few days after I post them.  I actually began (almost) thinking it was possible that a few people from within the Court itself—i.e., law clerks to the justices—were clicking the post after possibly being told of it by someone who reads, maybe, Business Insider.  If so, that would seem to indicate that I actually had called it right.  But I dared not really think that Supreme Court law clerks were reading my post.

Btw, in a comment to a blog conversation on Slate on Monday, I wrote:

Hmm.  Well, having gone out on a limb 10 days ago on a blog I write for, posting an article that discusses as one of the more likely possible healthcare-case results the tax-law outcome that Savage suggests in his LA Times article today, I’m feeling ever-so-slightly less lonely out on that tree branch.  At least now I’ll have someone to cling to on Thursday as the limb falls to the ground. 

The blog conversation is ongoing there.  The current latest entry (from last night) is here, should any AB readers be interested. 

Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Monday upheld the constitutionality of the crucial – and most controversial — feature of the Affordable Care Act.   By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t.  That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed.  The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form.

Since President Obama signed the new law, it has been understood by almost everyone that the expansion of health care coverage to tens of millions of Americans without it could work — economically — only if the health insurance companies were guaranteed a large pool of customers.   The mandate to buy health insurance by 2014 was the method Congress chose to supply that pool.   It is not immediately clear whether the Court’s approach will produce as large a pool of new customers.   The ACA’s key provision now amounts to an invitation to buy insurance, rather than an order to do so, with a not-very-big tax penalty for going without.

Those are the first two paragraphs of Lyle’s (I love him, and can refer to him by his first name if I want to) three-paragraph initial article on the regular blog (as opposed to the live blog).  He’s sure to post updates to the article later today.

Earlier, on the live blog, Amy Howe wrote:

Take a quick look at Footnote 11, which is on page 44 of the slip opinion: Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing that they may not lawfully do is not buy health insurance and not pay the resulting tax.

And for those of you who remember my writing about an obscure court-jurisdiction statute called the Anti-Injunction Act, which was a subject of controversy in the case, Lyle, writing earlier on the live blog, wrote:

Interesting, at least to scholars, that while the mandate and its attached penalty are a tax for purposes of its constitutionality, but not for the Anti-Injunction Act. If it were a tax for AIA purposes, this case would not have been decided re the mandate.

Also on the live blog, Lyle wrote:

The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.

Tom Goldstein then wrote:

I dissent from Lyle’s view that the Commerce Clause ruling is a major blow to social welfare legislation. I think that piece of the decision will be read pretty narrowly.

I’m almost always in agreement with Lyle’s analyses (as is, I’m sure, Tom Goldstein, who is the blog’s publisher and also a major Supreme Court litigator; Amy Howe, also a lawyer, is Goldstein’s wife).  But, like Goldstein, I disagree with Lyle on this one.  In order for the Court to interpret this opinion as limiting Congress’s authority to enact social welfare legislation, the Court would have to place in question a slew of current, longstanding social welfare programs.  I don’t think that was Roberts’ intent—really, I don’t—and I don’t think the opinion will be viewed that way.  Unless, of course, Romney wins and appoints a wingnut to replace, say, Ginsburg if her health does not hold out.  


This one’s not from SCOTUSblog.  It’s from Ginsburg’s concurrence, joined by Breyer, Sotomayor and Kagan:

At bottom, THE  CHIEF  JUSTICE’s and the joint dissenters’ “view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that [is] more redolent of Due Process Clause arguments.”  SevenSky, 661 F. 3d, at 19.  See also  Troxel v.  Granville, 530 U. S. 57, 65 (2000) (plurality opinion) (“The [Due Process] Clause also includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests.” (internal quotation marks omitted)).  Plaintiffs have abandoned any argument pinned to substantive due process, however, see 648 F. 3d 1235, 1291, n. 93 (CA11 2011), and now concede that the provisions here at issue do not offend the Due Process Clause.8

Footnote 8 says:

8. Some adherents to the joint dissent have questioned the existence of substantive due process rights.  See McDonald v.  Chicago, 561 U. S. ___, ___ (2010) (THOMAS, J., concurring) (slip op., at 7) (The notion that the Due Process Clause “could define the substance of th[e] righ[t to liberty] strains credulity.”); Albright v. Oliver, 510 U. S. 266, 275 (1994) (SCALIA, J., concurring) (“I reject the proposition that the Due Process Clause guarantees certain (unspecified) liberties[.]”).  Given these Justices’ reluctance to interpret the Due Process Clause as guaranteeing liberty interests, their willingness to plant such protections in the Commerce Clause is striking.

The SevenSky opinion, SevenSky v. Holder, that Ginsburg quotes from was written last November by Lawrence Silberman, a Reagan appointee to the federal Court of Appeals for the District of Columbia, and one of the most respected (in conservative legal circles) federal appellate judges, in one of the ACA cases. As for Ginsburg’s footnote 8, she says something I’ve wondered about all along: Substantive due process is legal doctrine under which Roe v. Wadeand, before that, the opinion striking down  a Connecticut law that prohibited the sale and use of contraceptives, were based.  Lawrence v. Texas, the 2003 Kennedy opinion invalidating Texas’s sodomy statute also was based on that doctrine.  Thomas and Scalia routinely lambaste the doctrine, as do many other tea partier folks. 

So the question is: Do these people now concede the appropriateness of the legal doctrine underlying those cases they hate so much?

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No Healthcare Ruling—But Three Other Very Important Rulings—Today

The Court will announce its healthcare ruling on Thursday.  Tom Goldstein, founder of Scotusblog, said after this morning’s opinions were issued that, in light of the Court’s informal division-of-labor routine, and based on which justice wrote which of today’s majority opinions, it looks pretty clear that (as everyone has been predicting all along) Roberts will write the majority opinion in the healthcare case, possibly (Goldstein said) with assistance from Kennedy.  In other words, it’s likely that Roberts will write the part of the majority opinion that addresses the individual mandate and related penalty and that Kennedy may write the majority opinion on at least one of the other three issues in the case. 

Interestingly, at least to me, veteran LA Times Supreme Court correspondent David Savage has an article today in which he offers the possibility that—er—I’m right.  Here’s the relevant excerpt from Savage’s article:

The healthcare case has been fiercely debated as a test of whether Congress can require individuals to buy health insurance under its power to regulate commerce. Opponents have likened it to forcing Americans to buy healthy food, such as vegetables.

Lurking in the background is a way to decide the case on tax law grounds. No one can be prosecuted, punished or fined for violating the mandate. In fact, the word “mandate” does not appear in the law. In “practical operation,” the administration argued, it’s just a tax law.

If the mandate is really just a tax, that would be supported by the Constitution, which says Congress “shall have the power to lay and collect taxes … to provide for the common defense and general welfare.”

So, in the end, the justices could agree the law’s required tax payments are constitutional, while also making clear the government does not have broad power to mandate purchases.

Late last year, Judge Brett Kavanaugh of the U.S. Court of Appeals in Washington, an influential appointee of President George W. Bush and a friend of the chief justice, wrote an opinion arguing for treating the mandate as a tax law, not a regulation of commerce.

During oral arguments in March, the conservative justices sounded highly skeptical of giving the government the power to mandate purchases. But at one point, liberal Justice Sonia Sotomayorasked whether it would be constitutional for Congress to assess a tax for health insurance and include an exemption for everyone who had insurance.

“The government might be able to do that,” said Paul D. Clement, the lawyer for the Republican states suing to overturn the healthcare law. If so, the liberals asked, why can’t Congress require people to have private insurance or pay a tax penalty?

Having the law upheld on tax grounds would be a big win for the president.

(In my June 15 post, I paraphrased Sotomayor’s question and erroneously attributed it to either Roberts or Kennedy.  I said I couldn’t remember which of the two had asked the question, which is no surprise since neither of them did.  Ah; I should have known.)

Now on to today’s big rulings.  The most significant—and it is huge—is a big surprise.  In a 5-3 opinion (Kagan did not participate) written by Kennedy and joined by Roberts in Arizona v. United States, the Court struck down on “federal preemption” grounds almost all of the major provisions in Arizona’s stop/demand-citizenship-papers/detain-upon-suspicion-of-being-an-illegal-alien all Hispanic-looking-or-sounding-folks law.  “Federal preemption” is a legal doctrine, based on the Constitution’s Supremacy Clause, that bars states from enacting laws that conflict with a federal statute or that intrude into a policy area in which the Constitution grants the federal government sole control (e.g., national defense and foreign policy) or in which a federal statute indicates Congress’s intent to make federal statute the sole arbiter in that area of policy. 

On the only remaining major provision—which appears to allow the detention by state prison officials of anyone arrested on other grounds, in order to allow the officials to verify the person’s citizenship—the Court rule that it is too early to know whether or not federal law preempts that provision, because the state courts have not yet “interpreted” it.  The opinion makes clear, though, that if the state court interprets the provision to permit a detention or an extension of a detention in order to enable the citizenship check, this provision, too, likely would be preempted.  And the opinion says explicitly that even if the state court interprets the provision narrowly enough to survive preemption on the grounds argued in this case, the provision may be preempted on other grounds or it may violate another provision of the Constitution.  In a separate lawsuit, the law is being challenged on Fourteenth Amendment equal protection (racial profiling) and due process grounds.

UPDATE: Here’s an outstanding discussion of the Arizona-statute opinion at Scotusblog.

The other major ruling today in a fully briefed and argued case—two cases, actually; one from Alabama, the other from Arkansas—extended the Eight Amendment’s bar to cruel and unusual punishment to strike down as unconstitutional state statutes that mandate life imprisonment without possibility of parole when the statute is applied to minors.  This was a 5-4 opinion written by Kagan and joined by Kennedy.

In the final ruling of broad significance, the Fab Five summarily reversed (i.e., without full briefing and oral argument) the Montana Supreme Court in the case in which that court had upheld the constitutionality of a longstanding Montana campaign-finance statute despite Citizens United.  I had called this one wrong in postings on AB, saying that I thought the Court would agree to hear the case, but a week ago I realized that I probably was wrong.  The Court had initially scheduled its decision for last Monday on whether or not it would hear the case next term.  When it put off its announcement until today, I knew what that meant.

The dissent, written by Breyer and joined by the other Dem appointees, says that while they had the minimum number of votes (four) to force full briefing and oral argument, the four decided not to do so because they recognized that there was no chance that any of the other five would vote differently if the case were argued.  I think the four should have forced full argument next term, not because there was a chance that one of the five would switch sides—there was not—but because this case would have educated the public about a critical fact that most of the public probably does not know: that in Citizens United, the 5-4 majority didn’t hold that the First Amendment speech grounds are absolute—a ruling that would have required them to expressly overrule the Court’s longstanding election-law precedents—but instead based its ruling on a “finding” of utterly fabricated and baseless fact.  The 5-4 majority simply declared, based on nothing at all, that they “find” that unlimited campaign “expenditures” by outside individuals, groups and corporations does not “give rise” to corruption or to the appearance of corruption.

Had the Court been forced to have a full hearing on the Montana case, complete with oral argument, the public would have learned that in election-law cases, this 5-4 majority simply fabricates facts and casually varies the standard under which the Court can strike down a statute as unconstitutional, depending on what is required for the majority rule in a way that (significantly) helps Republican candidates.  In CitizensUnited, for example, the majority not only decided on its own to raise the issue of the constitutionality of the campaign-expenditure limitations in the McCain-Feingold law, a tactic that violates the Court’s own procedural norms and, in that instance, its own Article III “jurisdictional” precedents;* they also required that Congress have vast, specific evidence that unlimited expenditures cause corruption or the appearance of corruption, and then denied the government the opportunity to gather and present that evidence, instead simply coopting for themselves the writing of the “facts.”  Yet, in a case a few years ago that challenged the constitutionality of a state law that required a government-issued photo ID in order to prevent voter fraud, the 5-4 majority required no evidence whatsoever by the state that widespread voter fraud existed—and ignored the evidence that such voter fraud is almost nonexistent. 

In my opinion, it is this aggressive but quiet altering of procedural and standard-of-review law in cases that could affect election outcomes, in a manner that baldly favors Republican candidates either directly or indirectly, that makes this 5-4 majority so dangerous.  But for the moment, I’ll rejoice in the outcome of the two opinions in argued cases that I discussed above.
And on Thursday, we’ll learn whether Savage and I are right or whether instead almost everyone else is.

*The part of that sentence that reads “a tactic that violates the Court’s own procedural norms and, in that instance, its own Article III “jurisdictional” precedents” was added for clarity on 6/26.

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Sorta Interesting … (Updated!)*

Thought y’all would enjoy this post, on one of THE BIG DEAL law-profs’ blogs.  It’s bloggers are right- to center-right libertarians, all (or at least most) of them former law clerks to one of the conservative Supreme Court justices.

Ah. And this is even moreinteresting.  Woo-hoo!

UPDATE: Welll.  Hmmm.  As I said earlier today in a comment in response to JackD’s comment about my post, I was surprised to read the original law-prof blogger’s interpretation of Ginsburg’s weekend comments, because on Monday I had concluded the opposite after reading a quote from Ginsburg’s speech. 

The quote was:

As one may expect, many of the most controversial cases remain pending. So it is likely that the sharp disagreement rate will go up next week and the week after.

As I noted in my comment to Jack, “Sharp disagreement,” in Supreme Court coverage, usually means 5-4 decisions, although sometimes it means “fractured,” as in, there were a zillion separate concurring and dissenting opinions, and no one can actually figure out what the hell the actual result was. 

As I also said, the ACA case, of course, isn’t the only high-profile case the Court will decide in the next 10 days or so.  But I still read that comment as suggesting a 5-4 result in the ACA case.  The CW is that if the ACA is stricken down, it will be 5-4, but that if it’s upheld it will be 6-3.  But Kerr could be right.  Ginsburg might have just been sending out a red herring.  Who knows?  Or: Oh, what the hell.

Ooooh.  This is more nerve-wracking than betting on your Kentucky Derby favorite, who’s no one else’s favorite; your odds are even worse. And there’s no “place” or “show” here.  Unless ….

As I also said in responding to comments to my post—JackD’s and run’s—the impact of the poll I linked to in the last sentence of my post is, I think, that it suggests that, contrary to the CW of the last two years, the healthcare-insurance issue could be a big positive, rather than a negative, for the Dems in November, if the Court does strike down the entire ACA or the mandate part of it.  (And even if it doesn’t, since by the election most people finally will actually know what’s in the law, what’s not in the law, and what the purpose of the mandate is and how it relates to the preexisting-conditions provision.)  The Repubs want the status quo.  The Dems and a substantial majority of the public don’t.

*In response to a comment by Gary, in the Comments to this post, asking what “CW” is, I wrote:

Conventional wisdom.  I’m sorry.  I did exactly what I hate when other people do that.  Especially mainstream-media bloggers like Matthew Yglesias, who regularly drops names of people I’ve never heard of, and the like, on his blog on Slate.  I guess now I qualify to blog on Slate.    
Again, sorry.

Beverly, 6/21

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Linda Greenhouse’s ACA-Litigation-Outcome Tea-Leave Reading (And Why I Think She’s Right)

In an email exchange between Dan and me on Tuesday, I wrote:

Btw, the Supreme Court has been amazingly slow this term in issuing opinions in high-profile cases.  Most of the opinions they’ve issued recently are on pretty esoteric issues; they’re important, but pretty inside-baseball.  A good example is an opinion they issued yesterday.  Here’s a great article on it at SCOTUSblog….  If you read it, I think you’ll see what I mean by esoteric and inside-baseball.  I do have to say—as the author of the article does—that Alito’s dissent is spot-on.  And, as the author says, it’s downright baffling that five justices signed on to Thomas’s wacky opinion.  The article indicates that Thomas apparently flipped Scalia after the oral argument.  Scalia had it right the first time.

In an op-ed piece yesterday in the New York Times, Linda Greenhouse, that paper’s longtime Supreme Court correspondent, who retired three or four years ago but still writes two or three op-ed commentaries a month there, mentioned the Court’s slow pace in issuing its “big” opinions this term.  Then she discusses an opinion that the Court issued on June 4 that, like most Supreme Court opinions, got little attention in the mainstream press but is nonetheless important. 

Most Supreme Court opinions decide “procedural,” “jurisdictional” or “standard-of-judicial-review” questions, which sometimes involve constitutional questions, often under the guise of statutory-interpretation ones.  Often, the court treats these cases as though they present only issues of interpretation of a federal statute and pretend that the case does not implicate constitutional law even if really does.  But the case Greenhouse discussed, Amour v. City of Indianapolis, was squarely a constitutional-law case involving the Fourteen Amendment’s equal protection clause, and did not involve a federal statute but instead a Supreme Court-created standard of judicial review of the constitutionality of a government policy or law that has the effect of discriminating against some class of people. 

Under the Court’s longtime equal-protection jurisprudence, the law is more tolerant of certain types of government discrimination than of other types of discrimination.  Laws or policies whose purpose is purely fiscal are among the types of government actions entitled to the most tolerant, or most “deferential,” level of judicial “scrutiny.”  Courts are not entitled to bar those laws or policies as violative of the equal protection clause unless there is no conceivable legally legitimate “rational basis” for the discrimination.   Greenhouse observes (as most liberal court watchers have recognized) that the conservative justices select out a few favorite conservative causes—most notably, the cause of George W. Bush becoming president instead of Al Gore, but also challenges to government affirmative action programs, and issues concerning religious speech in public schools (which Greenhouse doesn’t mention), and property-rights and tax cases—in which to champion the right of equal protection, while otherwise normally accepting virtually any stated basis for government discrimination as a sufficiently rational one to pass constitutional muster.  Of these conservative-favored types of cases, the deferential “rational basis”—i.e., almost anything goes—standard is applied only to the property and tax-type cases.  Conservative legal-movement types hatethat it is.

Armourconcerned a sewer improvement assessment in an Indianapolis subdivision.  Greenhouse summarizes:

The city gave the 180 property owners affected a choice of how to pay the $9,278 assessment: in a lump sum, or over time with interest. Most chose to pay over 10, 20 or 30 years. Three dozen paid up front, and the city then played them for suckers, announcing a year later that it was changing the way it financed sewer improvements and would issue bonds to cover most of the cost. It would forgive the indebtedness of the installment-payers. But the city refused to give the full-payers any of the refund they demanded.

The full-payers sued for a refund of all but the first year’s pro-rated assessment.  In a 6-3 opinion written by Breyer, the majority accepted as a sufficiently legitimate rational basis the city’s claim that the refund process would be difficult administratively and that the city then also would probably have to make similar refunds in other parts of the city.  Roberts wrote a strong dissent, but, as Greenhouse points out, it was fact-based rather than an attempt to change the law itself.  Roberts, joined by Scalia and Alito, said that the city’s proffered basis was not sufficiently legitimate under the rational-basis to pass equal protection muster.  But he did not advocate a change in equal protection legal doctrine itself; he did not suggest that the Court should abandon the rational-basis test for property-rights and other fiscal cases.  And Kennedy joined Breyer’s majority opinion.

Which Greenhouse interprets as potentially indicative of the outcome of the Affordable Care Act case.  I do too, although I’d already concluded more than two months ago that Roberts and Kennedy probably would vote to uphold the individual-mandate provision.  I based that in part on an earlier Greenhouse op-ed in the Times, in which she discussed a comment by Kennedy late in the oral argument on the challenge to the individual mandate, and a comment by Roberts.  Neither comment had gotten much attention in the press coverage immediately following the argument (and I hadn’t read the lengthy transcript of the argument).  I also concluded once the dust had settled two or three weeks after the argument, and I’d read many articles and commentaries about it, that the majority might tacitly and effectively uphold the mandate’s constitutionality, by not formally making that ruling at this time but making it clear that eventually they will.  I still think that’s a possibility, but one that, because of recent historical findings by a Harvard professor published a few weeks after the argument, is less likely now. 

In several posts on AB beginning about a year ago, I argued that the challengers’ Commerce Clause argument—that in enacting the ACA, Congress’ exceed its power under the Commerce Clause—was really a disguised Fifth Amendment “substantive due process” argument (liberty! freedom!), not a Commerce Clause argument at all.  Under the Supreme Court’s Commerce Clause jurisprudence, beginning in the mid-1930s with cases challenging the constitutionality of some of the New Deal legislation, and including a high-profile opinion issued in 2005, the ACA appears comfortably within the authority of Congress’s Commerce power.  It was that darned liberty thing that really was at issue: the slippery slope to Congress’s requiring the purchase of broccoli.   That is, this is a Fifth Amendment substantive due process argument, not a Commerce Clause argument.  As I pointed out, the “freedom” issue would be the same whether Congress achieved the end through it Commerce power or instead through its taxing power. 

And, in fact, the ACA’s enforcement mechanism—the penalty for not obtaining medical insurance arguably is a tax.  And since that’s the only enforcement mechanism—there is no provision for arrest and imprisonment, for example—the taxing power would suffice.  But that still would leave the issue of freedom! liberty!  And that slippery slope to broccoli-purchase mandates.  Unless, of course, the ACA mandate is no different, in a liberty! freedom! sense, whether enacted through the Commerce power or instead through the taxing power, than, say, Medicare and Social Security, but that a broccoli mandate, whether enacted through the Commerce power or instead through the taxing power is very different, and would be a violation of Fifth Amendment substantive due process (personal choice, liberty). 

Shortly after I wrote my first AB post making this argument, the first of two appellate-court opinions upholding the law under a virtually identical analysis was issued, both of them written by conservative-movement leading lights.  In the second of the two, issued last August, another leading-light movement-conservative judge dissented, but only from the determination that the law was within Congress’s Commerce Clause power, not from the conclusion that the law unconstitutionality infringed upon individual liberty.  That judge said that had Congress tweaked the statute even just slightly, enacting through the taxing power rather than through the commerce-regulating power, running the mandated insurance purchase through the government, the statute would be constitutional, both in that Congress would have the authority to enact it and that the mandate would not violate constitutional precepts of individual liberty.  And it turns out that the lawyer for the statute’s challengers agrees, as (apparently) does either Kennedy or Roberts (I can’t remember which).  And probably both do.

It was a third appellate case that the Supreme Court agreed to hear.  In that case, the Obama administration originally argued that the ACA’s penalty provisions was a tax, that the ACA was enacted under both the Commerce power and the taxing power—and that under a federal “jurisdictional” statute known as the Tax Anti-Injunction Act, which bars the courts from hearing a constitutional challenge to a federal taxing statute until after the tax is due, the courts lacked “jurisdiction” (legal authority) to consider the constitutional challenge at all until April 2015, when the first penalties under the ACA would be due.  But when that case on appeal, the administration reversed its position and said the penalty was, well, just a penalty, not a tax, and that the ACA was enacted solely under Congress’s Commerce power.  If so, the courts could hear the challenges to the Act.  That appellate court agreed, and in a split opinion held the mandate provision unconstitutional under what the majority said was a finding that Congress exceeded its Commerce power authority but what, the language of the opinion made clear, was really a finding that the mandate violated Fifth Amendment due process, or individual liberty, rights.  This, although the opinion didn’t mention the Fifth Amendment or due process.

When the Supreme Court agreed to hear that case, it decided to hear as a threshold issue, although neither side had asked it to do so, whether the penalty is really a tax and therefore its constitutionality cannot be decided until 2015.  That issue was argued on the first of the three days of argument.  The next day, late in the argument on the mandate issue, Kennedy or Roberts asked the lawyer for the challengers whether an insurance mandate enacted under Congress’s taxing power would be constitutional—that is, whether Congress not only had the authority to enact such a mandate through the taxing power but also whether such a mandate would be constitutional; in other words, whether it wouldn’t violate a due process liberty right and lead to the possible forced purchase of broccoli. The lawyer said Congress could enact such a mandate through its taxing power, and apparently the justices didn’t dispute this. 

So if a majority of the Court concludes that the mandate penalty is a tax, they can postpone an actual ruling on its constitutionality until after April 2015, while  strongly suggesting in its opinion this month that the mandate and its enforcement-mechanism penalty do not unconstitutionally violate individual liberty. 

But I don’t think they’ll do that.  In an article titled “IfHealth Insurance Mandates Are Unconstitutional, Why Did the Founding FathersBack Them?”, published in the New Republic in mid-April (three weeks after the Supreme Court arguments), Harvard law professor Einer Elhauge pointed out that on two occasions in this country’s earliest days, Congress, whose members the included several drafters of the Constitution, enacted statutes mandating that certain citizens purchase a private product.  In one instance the product was guns, in the service of a creating a citizens’ militia.  In the other instance, the product was medical insurance, which ship owners were required to buy for their seamen, enacted apparently under Congress’s Commerce power.  Neither law was thought to violate constitutional concepts of individual liberty.

Which creates sort of an obstacle for the conservative “originalist” justices.  And which causes me to think that a majority will uphold the mandate as authorized under the Commerce power and that the penalty is, after all, not a tax but instead just a penalty.

Which in turn causes me to disclaim my prediction before I’m even proven wrong.  After all, this type of prediction is worth the cost of the paper it’s not even written on. If that.

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