Relevant and even prescient commentary on news, politics and the economy.

You read it here first, AB readers. … [Important addendum added.]

I scooped everyone!


ADDENDUM: I would note that Ruth Bader Ginsburg will turn 83 on March 15 and that, while clearly still mentally very sharp, does not appear to be in good physical health.  There’s been a lot of speculation that if the Dem nominee, very likely now Hillary Clinton, wins the general election, and the Republicans retain control of the Senate (very unlikely, in my opinion, but probably not in theirs), they will continue to refuse to allow hearings on a Supreme Court nominee to fill Scalia’s seat.

I (strongly) suspect that the Republican idea is that Ginsburg will leave the Court fairly early into the next administration because of physical disability or death, and that the two overtly political cases currently before the Court, whose clear purpose is simply to skew elections to Republicans—and which now are deadlocked 4-4, and which the Court, rather than affirming by deadlock in a non-precedential ruling the lower appellate courts’ ruling not in favor of the Republican Party’s bald political interests, will instead be reargued next term.  Voila! Precedential opinions, by a 4-3 vote, profoundly skewing elections to favor the Republican Party.

The Federalist Society has gamed this out.  Trust me.

Meanwhile, the wingnut “legal foundations” that represent the petitioners in those two cases and that regularly fabricate cases for the Supreme Court to employ by a one-vote margin as their quiet-coup mechanism, will be working overtime (no, I mean even more so than usual) cooking up other cases on the wingy to-do list.

They know that this is not sustainable forever.  But they think it is sustainable long enough for them to accomplish their top priorities.

The Dem presidential candidates should talk about this.  I call this the Republicans’ wing-and-a-prayer strategy.  The Dem candidates, and Obama as well, should call it this, too.

They also should call it this: an attempt to orchestrate a silent coup.  I’ve been wondering whether issues other than the damn culture-wars ones that are at issue in Supreme Court appointments will ever get any attention from the Dem candidates.

I don’t think Clinton has the intellectual capacity to discuss, or the interest in discussing, anything but the culture-wars issues when mentioning the importance of Supreme Court appointments.  And Sanders, unlike Clinton, has no background in law.  But he should get information about both of the current Supreme Court cases I am referring to–Evenwell v. Abbott and Friedrichs v. California Teachers Assoc.–from people who know quite a bit about them.  And then he should discuss these.  These are the very types of things that his candidacy is about.

Added 3/3 at 12:15 p.m.

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The immediate impact of the death of Justice Scalia [correction appended]

Dan Crawford emailed me shortly after the news broke about Justice Scalia’s death, asking whether I have any random thoughts about it.  Here’s what I wrote back:

I posted a comment to Bill’s post on the announcement, saying that I think everyone should take a deep breath before saying much of anything.  It’s absolutely huge, but I think those of us on the polar opposite of the ideological spectrum should cool it for a day, as a small courtesy.

But it will have a huge immediate effect: There are several cases on the court’s docket this term–cases that would have profound impact, on unions, on affirmative action, on environmental law regulation and the Paris climate-change accord, on the extent to which the executive branch can regulate anything, on the permissible reach of executive orders, including of course on immigration issues–that would have been decided 5-4, some of them altering really broad areas of law and politics.

By “on the docket,” I mean cases already argued this term, cases scheduled for argument by the end of April, and cases that the court is currently considering whether or not to hear but that very likely the court would have agreed to hear in order to upend some major area of law. Expect a slew of dismissals of cases in the first and second of those categories, and a very few cert. grants the rest of this term (cases granted going forward will be heard next term, not this term).

I think I’ll repost this email as a post.



CORRECTION: Scotusblog’s Tom Goldstein has a thorough account of what will happen in the closely divided cases: If 4-4, the court will issue an order saying that the lower court’s decision is “affirmed by an equally divided Court.”  It’s tantamount to a dismissal, but technically it is not a dismissal. Goldstein says “we should expect to see a number of such cases.”

Also, I knew there was one case of existential (for the Democratic Party) importance, but I couldn’t think of what that case is.  It’s Evenwel v. Abbott, on the meaning of the “one person, one vote” guarantee.  (Thanks, Tom Goldstein!)  And Goldstein notes something I forgot about the big affirmative action case, Fisher v. University of Texas, Austin: Elena Kagan has recused herself in the case, because when the case was heard at the court on its first go-around there (this is its second one) Kagan was involved in it as U.S. Solicitor General, representing the federal government as an amicus.  So Fisher will be decided 4-3.*

Added 2/13 at 8:51 p.m.


*Ooops. Reader C0Rev wrote in the Comments thread: “I think this: ‘So Fisher will be decided 5-3’ was meant to mean ‘So Fisher will be decided by 7 Justices.’”

Yup; that sentence really did originally say “So Fisher will be decided 5-3.”  Well, no one has ever accused me of being a mathematician.

Seriously, thanks, CoRev.

Added 2/14 at 10:00 a.m.

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Dear Greg Sargent: YOU may not know what Scalia and Alito were up to yesterday. But I do.*

The chief justice said almost nothing.

Supreme Court Appears Sharply Split in Case on Health Law, Adam Liptak, New York Times

Okay, so how well did my predictions from three days ago hold up at the argument yesterday* in King v. Burwell?

Well, I got the outcome right, but not the particulars of how it will occur.  By saying almost nothing, Roberts said everything you need to know: The ACA will remain undisturbed.  He will join with the four Dem justices in an opinion that simply invokes standard statutory-interpretation methods that the Court employs when, say, it’s the Tea Party whose interests that long-established mechanism serves. In, y’know, garbage statutes. There’s no way—seriously; there really is no way—that Roberts would sit through 80 minutes of argument, in this of all cases, almost completely silently, if he intended to vote to interpret the four-word phrase at issue as the statute’s challengers ask.

Roberts will leave Kennedy to his federalism obsession—his bizarre the-Civil-War-and-the-Reconstruction-amendments-are-figments-of-the-political-left’s-imagination claims. (Roberts shares this view, but only as a means to specific Conservative Legal Movement ends, such as nullifying the Voting Rights Acts.)  Sure, the majority opinion will invoke the fancy the-federal-government-can’t-coerce-the-states-not-even-by-subterfuge federalism ground tailored specially for Kennedy.  But it will do so only to undermine the challengers’ belated switch argument: that Congress intended that the subsidies be available only in states that had set up and run their own websites, and that the purpose of the provision in the ACA that provided that the federal government would set up and run websites for individual state healthcare markets in states that do not set up and run their own was to mislead the states about the effect of a failure by the state to set up and operate its own website. (Congress knows better than to try that kind of thing and think it could get away with it! Unless, of course, it knew it wouldn’t get away with it.)  Originally, the challengers had argued that the four-word phrase at issue was an inadvertent error.

Congress’s clever ruse was predictably effective, since, as Kagan, Sotomayor, Ginsburg and Breyer noted, the federally run websites would have no products available and no customers, so the state legislators who bought the head fake weren’t really all that gullible in not catching on.

Then again, as Dahlia Lithwick reported, Scalia commented to Solicitor General Donald Verrilli: “How can the federal government establish a state exchange. That is gobbledygook.”  Which surely it is, since although each state has its own separate insurance market under the ACA, available only to residents of the respective state, the ones set up and run by the federal government were intended to have no actual insurance policies available, or customers to buy policies even if one or two policies should happen to pop up on one of those non-state exchanges.  And Scalia—no fool, he—does now recognize that that could undermine the challenger’s Plan B argument that Congress gamed this all out and decided to lull the states into a false sense that they could default to the federal government the setup and operation of the exchanges, with no ill effects.  Pun intended.  So Scalia needed a Plan B to save Plan B as something he could assert in his dissent.

But Scalia’s pointing this out wasn’t really the main gist of what he was up to yesterday. What he really was up to was having his cake and eating it too. He apparently waited until it was becoming clear that Roberts and Kennedy would do the heavy lifting for him and Thomas and Alito, and then largely reverted to his November 2014 garbage-statutes position—that is, to his pre-January 21, pre-Fair Housing Act case argument comments about how the Court normally interprets complex, multi-section federal statutes that intend to establish a coherent policy.

Well, inadvertent garbage, or instead advertent garbage; whatever. Either scenario works in this silly save-us-from-ourselves-please-while-we-protest-too-much kabuki act.  Just as Sens. Orrin Hatch, Lamar Alexander, and John Barrasso indicated in a Washington Post op-ed published last Sunday that was unabashedly directed to Roberts, Kennedy and Scalia.

Specifically, this trio opened its message with:

Wednesday, the Supreme Court will hear oral arguments about whether the Obama administration used the IRS to deliver health insurance subsidies to Americans in violation of the law. Millions of Americans may lose these subsidies if the court finds that the administration acted illegally. If that occurs, Republicans have a plan to protect Americans harmed by the administration’s actions.

Oh, okay. Republicans have a plan to protect Americans harmed by the administration’s actions that for the last year are providing them with healthcare, by enabling them to continue to have the healthcare insurance that is harming them.  In other words: Please, Supreme Court, save our party’s election chances in 2016, just as we quietly asked you a couple of months back, Antonin Scalia, to do.  But since it takes only one of you to do this for us, the rest of you don’t have to participate.  One sacrificial lamb is all that’s necessary.  The rest of you, write a dissent along the lines of … well, I’ll let Greg Sargent explain:

At oral arguments before the Supreme Court yesterday, two of the conservative justices — Samuel Alito and Antonin Scalia — both floated versions of the idea that, if the Court does strike down Obamacare subsidies in three dozen states, it might not be that big a deal, because surely lawmakers would then fix the problem and avert disruptions for millions.

This had more significance than it first appeared.

Here are the key quotes. After Solicitor General Donald Verrilli claimed that a Court decision against the law would cut off subsidies “immediately,” producing “very significant, very adverse effects” for “millions of people,” Alito suggested that the Court could side with the challengers but delay the ruling “until the end of this tax year.”

That would mean people would not abruptly lose their subsidies; the suggestion was that if the Court did this, the disruptions might not be immediate, and perhaps somehow contingency plans could come together to soften the blow for those millions of people. Verrilli suggested the Court might have this authority, but disputed whether doing this would actually make much of a difference in practice, because many of the states would be unable to set up exchanges — keeping the subsidies flowing — by the end of the year.

Whereupon this happened:

JUSTICE SCALIA: What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue. I mean, how often have we come out with a decision such as the — you know, the bankruptcy court decision? Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI: Well, this Congress, Your Honor, I — I –


That was indeed a richly comic moment! But it was also very significant. The conservative Justices implicitly suggested that the consequences of ruling with the challengers — which Scalia himself termed “disastrous,” though there may have been a hint of sarcasm there — are in fact weighing on the Court, and they themselves floated the idea that a legislative fix might mitigate those consequences.

Sargent goes on to say:

I don’t pretend to know for certain what motivated the conservative justices to say this stuff. But here’s a guess: The idea that a legislative solution might soften the disruptions could make it easier for Anthony Kennedy (who appeared torn over federalism concerns, particularly in light of the punishment that might be inflicted on states) and/or John Roberts (who seemed at least open to the idea that Chevron deference should be accorded to the government) to rule with the challengers.

Okay, well, unlike Sargent, I do pretend to know for certain what motivated the conservative justices to say this stuff.  Or at least what motivated Scalia.  He just enjoys cake.  It’s his favorite dessert.  Despite all those calories.  Especially when he has the cake and eats it too.

Kennedy will join the majority’s ruling only in its bottom line: the ACA survives in its current interpretation.  He’ll write a concurring opinion explaining that this is a necessary outcome, in order to avoid so offending the sovereign dignity of 36 states that, in self-defense, they would enter into a military treaty with Russia and attack Washington using an allied force comprised of the Armed Forces of the Russian Federation and the states’ national guard units.  Which itself would violate the Constitution’s design because it obviously would have the effect of coercing the states into increasing their own military budgets significantly.

But Kennedy’s concurrence will be a sideshow.

Laughter.  Applause.  Curtain.


*Typo-corrected to reflect the day that the post was posted (Thursday), rather than the day when I began writing it, which was Wednesday, the day of the argument. The post also has been edited slightly (and typo-corrected elsewhere) for clarity.

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How the Supreme Court’s King v. Burwell Debacle Will End [Addendum added]

I have known for the last five weeks—since January 27, to be exact—that the Supreme Court will uphold the Administration’s interpretation of the federal-subsidies provisions in the ACA when it issues its decision in the infamous King v. Burwell case whose argument date at the Court is Wednesday.  I also have known since then that the opinion will be unanimous, or nearly so, and that Antonin Scalia is likely to write it but if not will join it.

I considered revealing this to AB readers earlier, but feared an F.B.I. inquiry into suspicions that I hacked into the computer system in Scalia’s chambers, so I hesitated.  But it’s now or never—Scalia will make his position clear at the argument, and then I will have lost my one chance, ever, for a career as a Vegas oddsmaker—and I think I can persuade the F.B.I. that I received my information not illegally but instead from a report recounting extensive, pointed comments Scalia made in open court on January 21, in a case that is not about the ACA but is, like King, about the methods the Court uses to interpret lengthy, highly complex federal statutes with multiple interconnecting sections and subsections whose purpose is to establish a cohesive policy.

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Cynthia Lummis’s (Stunningly) Glib Fraud

The big news story of the last 24 hours, of course, is the Senate Intelligence Committee’s sickening torture report.  But you might also have heard about Wyo. Rep. Cynthia Lummis’s dramatic statement yesterday as a member of Darrell Issa’s Committee on Oversight and Government Reform’s Jonathan Gruber/Marilyn Tavenner Obamacare hearing.

The purpose of the hearing was, naturally … well, you know.  But something surprising did happen at the hearing.  In short, Lummis, the chairwoman of the Republican Study Committee’s Obamacare-repeal subcommittee, claimed that her 65-year-old Medicare-eligible husband failed to get a physician-recommended medical test to diagnose the cause of his chest pains because he was told incorrectly that he and his wife “were not covered by Obamacare”.

Even if you did hear about this, you might have missed Washington Post political blogger Nia-Malika Henderson’s precious take on it as “the most moving moment of the Gruber hearing.”:

Jonathan Gruber, the MIT economist who said that the stupidity of the American public played a major role in the passage of the  Affordable Care Act, came to Capitol Hill on Tuesday to be verbally flogged by members of Congress. Amid the predictable litany of “stupid” references, Wyoming Republican Rep. Cynthia Lummis (R-Wyo.) provided a poignant moment. Here’s what she said:

“On October 24, the week before election, my husband went to sleep and never woke up. He had a massive heart attack in his sleep at age 65.  A perfectly, by all accounts, healthy man. Come to find out, in a conversation with his physician after he died, he chose not to have one of the tests, the last tests, his doctor told him to have. This happened to coincide with the time that we were told that we were not covered by Obamacare. I’m not telling you that my husband died because of Obamacare.  He died because he had a massive heart attack in his sleep.

Lummis’s husband was Alvin Wiederspahn, a former Democratic state legislator and a lawyer and rancher. They married in 1983. When he died, Lummis released this statement, which mentions the couple’s only child: ‘Last night, my husband, Al, passed away peacefully in his sleep in our home in Cheyenne. Annaliese and I know that God has taken Al home to heaven, but right now our hearts are broken.’

“Her statement about her husband in the Gruber hearing wasn’t so much a question as much as it was a raw accusation about the Affordable Care Act, a statement she ended by asking for some compassion. ‘I want to suggest that regardless of what happened to me personally, that there have been so many glitches in the passage and implementation of Obamacare that have real-life consequences on peoples’ lives,’ she said, almost choking up. ‘The so-called glibness that has been referenced today has direct consequences for real American people. So get over your damn glibness.’”

“Centers for Medicare and Medicaid Services Administrator Marilyn Tavenner tried to offer Lummis some sympathy, but was cut off by outgoing chairman Darrell Issa (R-Calif.)”

Hearings like this are always political.  But they don’t usually offer such deeply-felt personal stories from lawmakers.

Apparently, it didn’t occur to Henderson, nor for that matter to Tavenner, to mention that Lummis’ husband surely was covered by Medicare.  For the record, Mr. Wiederspahn, according to his own Wikipedia page, was born on January 18, 1949, so he turned 65 a full 10 months before his death.

Also for the record, Lummis and her husband had a net worth of between $20 million and $75 million, including three Wyoming ranches.  Although Mr. Wiederspahn himself came from a prominent Cheyenne family and was a successful lawyer, the couple, who met when they were young across-the-political-aisle colleagues in the state legislature, inherited most of their extensive wealth from Lummis’s family.

Lummis said at that hearing that her husband had had several routine heart-health tests, presumably months or at least weeks before he died, and had submitted payment claims to “Obamacare,” but was told, erroneously, by “Obamacare” that the two of them were not were not covered, even though they had purchased a plan through the DC exchange website.  She said he resubmitted the bills and was told again that he and his wife weren’t covered.  But he was covered primarily by Medicare. And of course he knew that. Lummis didn’t mention that, but she did say that he had been having chest pains yet declined to have that final diagnostic test.

Lummis ran unsuccessfully in September to chair the Republican Study Committee, and she heads its legislative-repeal subcommittee. Her story was not a deeply-felt personal one but instead a deeply-felt ideological one.  The chance is nil that her husband delayed getting that final diagnostic test for fear that he might have to pay out-of-pocket some relatively small portion of the cost for the test–the portion that Medicare would not pay. Or that he thought the insurance error would not be corrected.

Her claim is a fraud.  Call her the “‘Jackie’, the-University-of-Virginia-fraternity-gang-rape-victim” of the Obamacare-horror-story crowd.  By which I mean that, theoretically at least, her fabrication in order to try to serve her cause may prove to have the opposite effect.  But only if the news media reports the credibility issues.  And because this is not about sex but instead about Obamacare, the news media probably won’t.

And, no, I’m not being glib.  Lives indeed are at stake.

And while it may be unfair to analogize Henderson to Rolling Stone journalist Sabrina Rubin Erdely, the author of the infamous UVa-fraternity-gang-rape article—Henderson, after all, was just extemporaneously reacting to what she had just seen on CSPAN, not writing an ostensibly extensively-investigated in-depth news article—I’ll draw the analogy anyway, albeit while noting that important distinction.

But Henderson certainly is correct on her last point: Congressional hearings don’t usually offer such deeply-felt personal stories—real ones or fake ones—from lawmakers. Nor, of course, was this lawmaker actually testifying.  Not under oath, anyway.

But to Henderson’s observation, I’ll add one of my own: There has, at least to my knowledge, never been a House or Senate hearing at which, say, a surviving spouse of someone who died because of lack of access to diagnostic tests or to treatment because of the family could not afford healthcare insurance on the private market on the pair’s minimum-wage jobs, or because the spouse had a pre-existing condition detailed this.  Nor, to my knowledge, has there been testimony by a witness who alone or along with a spouse filed for bankruptcy, or completed lifelong savings and retirement accounts, because of huge and possibly ongoing medical bills that far exceeded the pre-Obamacare annual benefit cap on the family’s Blue Cross plan.

For that matter, there has been no Congressional-hearing testimony by people who will lose access to healthcare insurance if Antonin Scalia brings along with him next spring the votes of four other justices to interpret the ACA as containing an antidisestablishmentarian clause that bars insurance-premium subsidies under that statute in states that have allowed the federal government to set up and run their state’s insurance exchange website, as per the ACA, rather than set one up and run it itself.  During a little-publicized private speech to the Appellate Judges Education Institute Summit last month, Scalia decided to tamp down public speculation that in the ACA cases, King v. Burwell and Halbig v. Burwell, he might adhere to the rule of statutory construction that he announced for the Court last June in a ruling favoring a who’s-who cadre of anti-environmental-regulations Republican campaign finance benefactors, and against the EPA.  Scalia reportedly told his audience that judges don’t have the power to interpret “garbage” statutes enacted by Congress to avoid an undesired outcome. (Scalia and four of his colleagues do believe, however, as they demonstrate regularly these days, that they have the power to interpret non-garbage statutes and statutory procedural rules as garbage statutes, but apparently he didn’t mention that in his speech.)

And there has been no Congressional testimony by anyone who, notwithstanding a very moderate annual income ($11,670 to $29,175 a year for an individual), this year has enjoyed excellent healthcare insurance through an ACA provision that has remained almost secret because it requires a separate budget appropriation that the Republicans have blocked. HHS has used funds appropriated for the tax subsidies to fund the program this year, but the professional-anti-Obamacare-litigation industrial complex is challenging the legality of this in the courts.  New York Times healthcare reporter Robert Pear explained on November 29:

In mounting the latest court challenge to the Affordable Care Act, House Republicans are focusing on a little­-noticed provision of the law that offers financial assistance to low­ and moderate­ income people.

Under this part of the law, insurance companies must reduce copayments, deductibles and other out-­of­pocket costs for some people in health plans purchased through the new public insurance exchanges. The federal government reimburses insurers for the “cost-­sharing reductions.”

Nor has there been Congressional testimony by anyone who is deeply grateful for the dramatic slowing of the decades-long virulently-rising annual increase in healthcare insurance costs for private-employer-based insurance, although surely there are many, many millions who are.

I want to suggest that regardless of what happened to Lummis personally, that although there have been so many glitches in the passage and implementation of Obamacare, the actual real-life consequences of Obamacare on peoples’ lives are that it mitigates to some extent but by no means fully the profoundly harsh and quite-often deadly American healthcare-access/healthcare-coverage system, and that Lummis is fraudulently invoking her husband’s untimely death in the service of trying to strip millions of spouses, parents, and children of their newfound, very-long-in-coming access to diagnostic tests, treatments, and preventative medical care.  That—unlike her false indictment of the ACA in her husband’s death—is a fact.

Lummis’s husband, whether or not he remained a Democrat throughout his life, did remain someone whose heart was in the right place.  He reportedly played a large role in obtaining financial support for Cheyenne’s largest homeless shelter.  His widow should have let him rest in peace, rather than glibly invoking his death in a cause whose purpose is to deny access to healthcare insurance to massive numbers of people.  His widow’s glibness was intended to have direct consequences for real American people, of exactly the sort that her husband (who surely knew that at the least he was covered by Medicare) did not face.  It is not Gruber, but Lummis, whose glibness will kill, as is its intention.

Yes, Henderson really did title her blog post “This was the most moving moment of the Gruber hearing.”  Once Obamacare has been repealed root-and branch, as Mitch McConnell has vowed, or just branch-but-not root, by the Supreme Court, as Scalia is hinting, there will be many possible moving moments, superficially similar but substantively different than Lummis’s, although of course not by lawmakers.  There still is a difference between staged theater and real life; at least I think so.  So I suppose we’ve seen the last of the moving moments, at Congressional hearings, concerning spousal deaths due to lack of health insurance coverage.

Lummis surely mourns her husband.  Deeply.  But she also made him her unwitting stage prop yesterday.



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The appalling failure today of Sonia Sotomayor, Elena Kagan, Stephen Breyer, Anthony Kennedy, John Roberts and Samuel Alito [Updated]

This speaks for itself.  I’m sure that Kennedy, Roberts and Alito call this ‘freedom’.  I won’t guess at what Sotomayor and Kagan call it.  But what Breyer calls it, or should, is conflict of interest.  Back when Breyer was lead counsel for the Senate Judiciary Committee, he helped draft the Federal Sentencing Guidelines—a really appalling policy—and has spent the remainder of his career serving as rear-guard protector of it.

Breyer makes me sick. Then again, so does Kagan (nothing new there) and now Sotomayor.

But let’s hear it for Ginsburg, Scalia and Thomas.


UPDATE: Anyone who’s interested in this subject–and anyone who’s interested in the broader subject of an increasingly important chasm between rightwing libertarianism that is limited solely to taxes/economic-regulation/the-47% schtick and right-wing libertarianism that actually also considers the issue of denial of actual physical freedom to be within the definition of Freedom! Liberty!, presumably even when the denial of physical freedom is by a state or local government rather than by the federal gummint–should read this blog post on the rightwing-libertatian Cato Institute’s web site, about this “cert.” denial.

Of particular interest to me is the comment about Kagan’s decision (evident throughout her tenure on the Court) to be part of the “pragmatic” wing.  As the Cato post implies, Kagan has a pretty curious idea of “pragmatism.”

The case at issue, Jones v. United States, was a case prosecuted federal court and subject to the Federal Sentencing Guidelines.  But the ground on which cert. was sought was one under the Sixth Amendment, and a ruling finding the judicial practice at issue unconstitutional would have applied to state prosecutions as well as to federal ones.

10/16 at 12:25 p.m.

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First-Reaction Thoughts About Hobby Lobby and Harris v. Quinn

I haven’t read the opinions, concurrence, or dissents in either Hobby Lobby or Harris v. Quinn, so these comments are based on news summaries and quick commentaries by others.  But the biggest surprise in Hobby Lobby, I think, is the express approval, in the opinion and in Kennedy’s concurrence, of HHS’s on-the-fly setup devised in (I think) 2012 as a workaround to allow nonprofit religious organizations (e.g., Catholic colleges) to avoid directly providing the insurance coverage while still enabling the employees to receive the coverage.

The 5-4 outcome of the case apparently relied on this; it was not dictum. Kennedy’ concurrence makes that clear.  (Which is itself a surprise, given Kennedy’s virulent dissent two years ago to Roberts’ opinion upholding much of the ACA itself.)

This is really important, not just as it applies to the contraception issue but also because the HHS-devised workaround has, of course, been attacked by the right as exceeding the authority of the ACA.  As have the other several HHS-promulgated tweaks to the substance of the statute and to its implementation (for example, delays in requiring certain mandates). The Hobby Lobby opinion effectively accepts as legally permissible these substantive and timing HHS-created modifications by HHS to the ACA.

The other thing that strikes me is that, although one commentator writing a few minutes after the release of the opinion thinks otherwise, the opinion does, I think, open the door to diminished corporate-veil protections.

The opinion did not address the First Amendment free-exercise-of-religion clause.  Instead, it interpreted a statute, the Religious Freedom Restoration ACT (RFRA) as protecting closely held for-profit corporations.  The statute provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”  The opinion holds that corporations are “persons” within the meaning of the statute.

The commentator–one of the SCOTUSblog folks writing on their live blog as the Court was in session this morning; I can’t remember who, though–pointed out in answer to a question that the opinion interprets a federal statute and that corporate-structure/corporate-veil statutes are state statutes. The opinion doesn’t alter those state statutes.

But it does, I would think, enable and even invite other incursions through the corporate veil, via federal or state statute or state-court interpretation of rights of potential litigants.

The opinion also apparently tacitly acknowledges, without actually deciding, that First Amendment rights of corporations are solely derivative of their owners’ First Amendment rights, and therefore cannot be treated as though delegated to the personal choices of the CEO.  Thus, the ruling in Hobby Lobby is limited to very-closely-held for-profit corporations.  This obviously is a concession to the dismay expressed by many, many people (certainly myself included, here at AB) at Citizens United’s cavalier delegation of individual publicly-held-corporate shareholders’ First Amendment speech rights to the corporation’s CEO for purposes of donating corporate money to political campaigns. Corporate shareholders, including pension funds, are now entitled to sue to block corporate political donations.

Although Alito wrote the majority opinion in both Hobby Lobby and the other case decided today, Harris v. Quinn, neither opinion reflects what he had hoped for.  Harris, like Hobby Lobby, was decided on as narrow grounds as possible–on grounds that avoid constitutional interpretation and that are decided on other grounds limited in scope to, really, the specific facts in the case.

In my post yesterday on Harris, I suggested the possibility (albeit remote, I thought) that Harris could follow somewhat in the footsteps of an opinion in a case called Bond v. United States, decided on June 2.

The majority voted to hear Bond, intending to use it to make a sweeping Conservative-Movement-cause constitutional pronouncement and overrule a longstanding Supreme Court precedent.  But instead, somewhere along the way after the case was argued and John Roberts had assigned himself to write the opinion, one of the five Republicans–I suspect that it was Roberts himself–had a change of heart. Roberts’s opinion has vestiges of the original draft, but decides the case on other (liberal, actually) grounds.  What was intended initially as a major federalism (i.e., states’ rights to violate federal constitutional rights that the political right don’t care about) ruling based upon the alleged structure of the Constitution ended up as a blow to rampant abuse of prosecutorial discretion.  Hooray.

In Harris, the Conservative-movement cause was not neo-federalism but instead the decimation of labor unions, especially of public-employee ones.  The mechanism was to be the First Amendment speech clause, and Alito, who openly coveted the assignment to write the opinion–earlier, in another case, he said he wanted to overrule a 1977 Court opinion, Abood v. Detroit Board of Education, that was the foundation of the relevant aspect of current labor law–had indicated at the argument in January that he thinks the very existence of public-employee unions violate the First Amendment.

But the best-laid plans went somewhat awry again, and this time apparently it was Scalia (of all people) who threw the first wrench. Scalia reportedly made it known at the argument that the First Amendment speech challenge to the “agency fee” concept in union representation of non-union employees in “union shops”  just doesn’t make sense, in his opinion, even if the union is a public-employee one.

My guess is that Scalia originally agreed only with the bare outcome, but on the limited grounds on which Alito’s opinion ultimately rests: that under the specific Illinois law at issue, the 1977 opinion that approved the “agency fees” didn’t apply to the employees at issue in Harris–home healthcare employees paid by the state’s Medicaid system–because they are employees partially of the state and partially of the customer. My guess also is that somewhere along the way, Alito lost another vote for what was to be his four-justice plurality opinion; one of the four jumped ship and joined Scalia. Alito then was compelled to effectively adopt Scalia’s concurrence as the bottom line–the ruling–in his opinion, but was not compelled to remove the reams of dictum from it that Kagan, in her dissent reportedly mocks at length.*

If my speculation is correct, the substance of the Harris opinion bearing Alito’s name was dictated, literally, by Scalia. In any event, this wasn’t quite the day of victory for Alito & Friends that they had envisioned.  Really, it wasn’t even close to that.


*Typo in sentence corrected, 7/1 at 1:34 p.m. 

UPDATE: Most of what I wrote in this post based on the early summaries and analyses of the opinions, but before I had read the opinions themselves, holds up surprisingly well, I think.  I don’t think you can read the opinion in Harris without recognizing the real likelihood that most of Alito’s opinion was written as one overturning Abood, maybe as a plurality or maybe as a majority opinion, and then one or two of the justices who had signed on to overturning Abood changed his mind.

I hope to write an update post later today, though. 7/1 at 1:37 p.m.

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Ah, federalism. Which is in the eye of the beholders. The beholders being Clarence Thomas, Antonin Scalia, Samuel Alito, Anthony Kennedy, John Roberts … and the Koch brothers.

(Correction appended.)

(Clarence Thomas in his separate concurrence]* adds that in his view the First Amendment religion clauses don’t apply to the states in the first place. And it only probably bars the establishment of a national church—leaving open the question for another day.

Let Us Pray:The Supreme Court gives its blessing for prayer at town meetings. Get ready for a lot more Jesus in your life., Dahlia Lithwick, Slate, yesterday

That’s right; the First Amendment religion clauses don’t apply to the states in the first place. No Sir. No way. No how. It’s only the First Amendment’s speech clause that applies to states in the first place.

In the last two years, Thomas and Scalia have voted with their three compadres to strike down Montana and Arizona campaign-finance laws as violative of the First Amendment’s speech clause–in the Montana case in a summary reversal of a ruling by the Montana Supreme Court; that is, without briefing and argument.  The vaunted freedom conferred by federalism (a.k.a., states’ rights!) is somewhat temperamental.  But, whatever.

I strongly recommend the entire Lithwick article, which discusses several parts of the Kennedy plurality opinion, a concurring opinion by Alito, and the Thomas concurrence.  The statements these people make go well beyond the issue in that case, and are truly breathtaking.


*CORRECTION: Originally this post said that Scalia joined Thomas’s concurrence in full. That was incorrect; he joined all of it except the part in which Thomas repeats his belief that the First Amendment’s two religion clauses are not properly viewed as applying limitations to states via the Fourteenth Amendment, through what’s known as “the incorporation doctrine.”  Thomas is the only justice, to my knowledge, to express or support such a view–ever.

As I understand Thomas’s claim, it’s that the Framers’ intent in drafting the religion clauses was to prevent the federal government from stopping the states from adopting a state-sponsored religion. It’s utter nonsense–absolutely fanciful–but it is part and parcel of a key premise of the Conservative Legal Movement’s “federalism” claim: that the very structure of the Constitution itself as set forth in the original Articles is that the Constitution makes states sovereigns and that a threshold purpose of the document is to protect state’s prerogatives from incursion by the federal government–and that this includes the right of state courts in criminal and civil cases, and the right of state prosecutors, to infringe at will upon the rights of individuals.

Kennedy, in fact, actually has written that the structure of the original Constitution trumps Amendments that alter the relationship between the states and the federal government.  Roberts,for his part, made clear last year in his opinion striking down a key section of the Voting Rights Act that he agrees wholeheartedly with this; his opinion in that case, Shelby County, Ala. v. Holder, effectively holds that these folks’ concept of the structure of the original Articles trumps Section 2 of the Fifteenth Amendment.  And it explains the bizarre juggernaut that I wrote about here.

We’re witnessing here a concerted, unremitting restructuring of fundamental parts of American law under the guise of constitutional interpretation, employing medicine-man semantics gimmicks and other such tactics, including baldly false, disorienting declarations stating what others’ opinions are.  The Articles of the Constitution are viewed as really the Articles of Confederation, except when that would limit rather than advance this crowd’s lawmaking or outright partisan agenda.** And they’re getting away with it–and will until the Democrats actually start making it an issue.  My suggestion: that the Dems run ads this election year actually quoting from the opinion in McCutcheon v. FEC and also note the striking down of Arizona’s and, especially, Montana’s campaign-finance laws.  Montana’s statute was enacted in the early part of the last century. – 4/7 at 11:04 a.m.

**I just updated this post again to add “and outright partisan” to that sentence and to link to Thomas Edsall’s terrific op-ed about this in today’s New York Times. This issue is finally getting some mainstream-media attention.  Hurray. – 4/7 at 12:57 p.m.

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If the Justices “fail to recognize where their assumptions about society and technology break from the norm—or indeed, where they are making assumptions in the first place—we’re all in trouble.” Indeed.

  • At Crooks and Liars, Parker Higgins focuses on comments made by Chief Justice John Roberts during the oral argument in the cellphone privacy cases, in which the Chief Justice expressed skepticism that many law-abiding people carry more than one cellphone.  Higgins suggests that if the Justices “fail to recognize where their assumptions about society and technology break from the norm—or indeed, where they are making assumptions in the first place—we’re all in trouble.”

    — Monday Roundup, Amy Howe, SCOTUSblog, today

Via me; H/T this post by run75441 a.k.a. Bill H.

An important find, Bill.  And now maybe some people who actually matter will read Higgins’ post.

That’s quite a “money” quote. It transcends the issue in the two cellphone-privacy cases, and technology cases in general, and cuts to the heart of what’s wrong with the current Supreme Court. As things stand now, all of us who know that it’s no longer the 1980s or even the ’90s are in trouble.


NOTE: The Court’s argument schedule is completed for this term, and the Court is not scheduled to “sit” again until May 19, so unless it announces an opinion-release session that is not currently scheduled–which probably won’t happen, because these folks probably have full speaking/interview schedules until then–we get a two-week break from this stuff.

Thank heavens.  I mean, praise the Lord.


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