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Pro-business decisions

New York Times points us to a new study on the Robert’s Supreme Court decisions and ‘pro-business’.

NOT long after 10 a.m. on March 27, a restless audience waited for the Supreme Court to hear arguments in the second of two historic cases involving same-sex marriage. First, however, Justice Antonin Scalia attended to another matter. He announced that the court was throwing out an antitrust class action that subscribers brought against Comcast, the nation’s largest cable company.

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Heightened Scrutiny of John Roberts: He Says He Will Vote to Uphold the University of Texas Affirmative Action Admissions Policy Because White Applicants Have Political Power. Seriously.

WASHINGTON — As the justices of the Supreme Court struggled with the question of same-sex marriage this week, politicians in Congress kept handing down their own verdict. One after another, a series of lawmakers in recent days endorsed allowing gay men and lesbians to wed.

But momentum in the political world for gay rights could actually limit momentum in the legal world. While the court may throw out a federal law defining marriage as the union of a man and a woman, the justices signaled over two days of arguments that they might not feel compelled to intervene further, since the democratic process seems to be playing out on its own, state by state, elected official by elected official.

The prospect that gay rights advocates may become a victim of their own political success was underscored during arguments on Wednesday over the constitutionality of the Defense of Marriage Act. Opponents of the law were left to make the paradoxical argument that the nation has come to accept that gay men and lesbians deserve the same right to marriage as heterosexuals while maintaining that they are a politically oppressed class deserving the protection of the courts.

Chief Justice John G. Roberts Jr. pressed that point with the lawyer for the plaintiff, a New York woman suing to recover federal estate taxes she would not have had to pay had her spouse been a man.

“You don’t doubt that the lobby supporting the enactment of same-sex marriage laws in different states is politically powerful, do you?” he asked the lawyer.

For purposes of the law, said the lawyer, Roberta Kaplan, “I would, your honor.”

“Really?” the chief justice asked skeptically. “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”

Success on Political Front Can Be Setback in Gay Rights, Peter Baker, New York Times, yesterday

The movement-conservative legal crowd that began to gain a stranglehold on the federal court system the early 1980s, and that is now represented by four, and in deeply important respects five, Supreme Court justices, has thoroughly transformed the law and court system.  It has done so mostly under the public’s radar screen and so has had a nearly unfettered free ride.  But now, little by little–albeit by too little–the free ride is becoming slightly less unfettered, as the Supreme Court, if not the lower federal courts, is garnering meaningful and detailed attention in some important respects.  

Call it heightened scrutiny.  Or maybe even strict scrutiny.  In any event, at least with respect to culture-wars cases at the Supreme Court, it no longer is rational-basis scrutiny.  All of these are terms that, although unfamiliar to non-lawyers, are quite familiar to John Roberts. And they explain, as I will below, the purpose of that above-quoted colloquy.  

There is now some cost in public opinion, not only to the overt jaw-dropping statements made by Antonin Scalia but also to the slightly more subtle (yet equally stunning to those who know the code) declarations by our Supreme Court’s chief justice during oral arguments.  Statements jolting enough to garner publicity and therefore to provide public insight into the true, hell-bent goals of this movement.  

Scalia and Roberts are the Paul Ryan of the federal judicial branch.  They and their compadres have a roadmap, and Roberts has now joined Scalia in openly revealing its intended final destination.  Except that this duo is remarkably careless in presuming that they can control that final destination.  They can’t.

Here’s what Roberts was getting at: Under the Supreme Court’s longstanding equal protection jurisprudence, there are three levels of equal-protection “scrutiny” that courts must accord laws, government policies or government officials’ actions that discriminate against particular groups or individuals, or that favor one or another group.  The highest level of scrutiny is–or, more accurately, originally was–reserved for “invidious” groups, such as racial, ethnic, or religious minorities, that suffered broad societal discrimination. Laws or government policies or actions that discriminated against these groups would be subject to “strict” constitutional scrutiny, which means that they would pass constitutional muster only if there was a “compelling governmental interest” that the law or policy furthered.  That standard is almost impossible to meet, so most such laws or policies were stricken as unconstitutionally discriminatory.  

Strict scrutiny also is the level of constitutional scrutiny applied to laws that infringe upon what are considered “fundamental” rights–rights that are stated expressly and specifically in the Constitution, and rights that the Supreme Court has recognized under a doctrine derived from the Fifth and Fourteenth amendments, called “substantive due process.”

An intermediate level of scrutiny–”heightened” scrutiny–applies to government discrimination (denials of equal protection of the laws) for less invidious groups that nonetheless do suffer societal discrimination.  Age discrimination, for example.  And gender discrimination.

Government discrimination that does not fall into one of those two categories is accorded, and permitted, very little scrutiny.  Specifically, any stated “rational basis” for the law or policy will suffice as sufficiently constitutional.  

An early justification by the Supreme Court for categorizing a group as protected from discriminatory laws or government policies or actions under strict, or even heightened, constitutional scrutiny was that –you guessed it–the group lacked political power and therefore could not fend off discriminatory legislation or policies through the political system.  Thus, the Roberts comments above.

But, mainly thanks to the efforts of the movement-conservative legal crowd of which John Roberts has always been a charter member, the importance of a group’s political power–or lack thereof–is most certainly no longer a consideration in applying strict or heightened scrutiny to discriminatory government actions.  Unless, of course, white high school seniors or white government-contractor applicants have no political power because, well, they’re white.  Or unless Christian evangelicals and Catholics have no political power because they are Christian evangelical or Catholic.  Or because they are religious.

And, yes, a favorite genre of the current movement-conservative law folks during the last three decades has been the novel use of equal protection law as a means to circumvent the First Amendment’s Establishment clause–the clause in the Constitution that bars the government from favoring one religion over others, or from favoring religion in general.  The First Amendment’s Free Exercise clause wasn’t sufficient, because, well, there really isn’t a First Amendment right to commandeer the government in the service of your own practice of religion.  But if the government is going to allow non-religious groups to do something in particular, it must allow religious groups to do the same, as long as doing the same doesn’t force others to participate in, or be present at, your religious exercise, courtesy of the government.  Even if the government has a rational basis for not allowing it.  

So John Roberts wants to reinstate the lack-of-political-clout requirement for any level of equal protection scrutiny other than the rubber-stamp rational-basis level of equal protection scrutiny.  But only for the purpose of denying same-sex couples federal spousal benefits such as estate tax exemptions and Social Security survivors’ benefits.  And for the purpose of allowing states to prohibit same-sex marriage.  But rest assured that Abigail Fisher, the unsuccessful University of Texas applicant who is white and hails from an upscale Houston suburb, and who probably was not asked to show a birth certificate when she registered to vote at the age of 18, will not lose her case because political figures are falling over themselves to endorse her side of the case, and have been, for decades longer than political figures have been falling over themselves to endorse the same-sex-marriage plaintiffs’ side of their case.  That is, for decades before, say, a month or two ago.

It’s John Roberts’ bad luck that the affirmative action case will be decided within weeks, or perhaps just days, of the same-sex-marriage cases.  I do think there’s another name, though, for Roberts’ luck, if not for Roberts himself: poetic justice.

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Tom Goldstein of SCOTUSblog tweets, during the short break after the first hour of argument in the California Prop 8 case, that …

Breaking: 1st update- #prop8 unlikely to be upheld; either struck down or #scotus won’t decide case. More in 30 mins.
This is the more important of the two gay-marriage cases.  Tomorrow’s argument will be on the constitutionality of the federal Defense of Marriage Act (DOMA), but almost no one (best as I can tell), thinks the Court will uphold the constitutionality of that Act.  The real suspense* is in the Prop 8 case.  So ….

UPDATE: Here’s Tom Goldstein’s post-argument report.

SECOND UPDATE: This one’s from Reuters. It seems to me that the Roberts comment quoted in the article is very significant. In a good way.

THIRD (and final, for at least a few hours) UPDATE: Here’s SCOTUSblog’s Lyle Denniston’s take.  He’s my (and many, many others’) go-to guy on all things Supreme. He seems to think that they’ll simply dismiss the Supreme Court case, saying that the petition grant was “improvidently granted,” leaving the Ninth Circuit opinion intact.

That would leave intact the Ninth Circuit ruling–which was that, because California already had been allowing same-sex marriage before Prop. 8 was approved in 2006, in localities that approved it, the state could not suddenly render those marriages null and void.  Doing so would violate the Fourteenth Amendment’s Due Process clause.  And since some gays already were allowed to be married, and their marriages would continue to be recognized by the state, refusing to allow other gays to marry would violate the Fourteenth Amendment’s Equal Protection clause. That’s the ruling that would remain in effect if the Supreme Court rules that the Prop. 8 petitioners have no legal standing to be a party to the case.  

That now seems more likely to me than the other option that would allow them to avoid deciding on whether same-sex marriage is a constitutional right.  That other option would be to rule that “the petitioners”–the group that earlier asked the Ninth Circuit, and then asked the Supreme Court, to “vacate” the lower-court rulings and uphold the constitutionality of Prop. 8–don’t have “standing” to be a party to the lawsuit, because they would have no injury from a court ruling striking down Prop. 8 that is sufficiently direct and significant to meet the Article III standing requirement.  

If they go the “no standing” route, that would leave intact not the Ninth Circuit ruling based on narrow grounds but instead the lower, trial-court judge’s ruling, which was based on much broader grounds.  The effect would be somewhat, but not entirely the same, whichever of these two options they choose.

As I understand it, if they choose the option that leaves the Ninth Circuit opinion in place, that would mean that localities in California would have the option to allow same-sex marriage but would  not be required to allow it, although all government entities throughout the state would have to recognize any same-sex marriage as legal. If they instead choose the option that vacates the Ninth Circuit opinion and restores the lower, trial-court ruling, by ruling that the petitioners have, and had, no legal standing to appeal from the trial-court ruling either in the Ninth Circuit Court of Appeals or in the Supreme Court, that would mean that, for now, in central California, within the trial-court level federal court district where the case was filed and where the trial-court ruling was issued, Prop. 8 would be invalid and all localities within that court district would be required to allow same-sex marriage.


*Originally, I used the word “action,” but changed it to “suspense” because, if the Court strikes down DOMA as unconstitutional, that would be big, important action. I really meant “suspense,” because I do think the striking of DOMA is highly likely; not much suspense on that. But tomorrow’s argument will give some hint about whether I’m right.

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John Roberts’ Curious Voting-Statistics Sophism Misconstrues The Census Report’s Statistics by Failing to Consider Key Statistical Deviation Facts and Fails To Consider WHY Massachusetts Blacks Might Be Voting In Lower Percentages Than Mississippi Blacks Are, Even IF They Are. [UPDATED]

In a blog post titled “In Voting Rights Arguments, Chief Justice Misconstrued Census Data” on NPR’s website, veteran NPR Supreme Court correspondent Nina Totenberg deconstructs a sophism offered by John Roberts at the oral argument on Wednesday on the continued constitutionality of a key section of the Voting Rights Act of 1965, which Congress has extended several times, the last time, overwhelmingly, in 2006.  Totenberg writes:

At the voting rights argument in the Supreme Court on Wednesday, Chief Justice John Roberts tore into Solicitor General Donald Verrilli, grilling him on his knowledge of voting statistics.
The point the chief justice was trying to make was that Massachusetts, which is not covered by the preclearance section of the Voting Rights Act, has a far worse record in black voter registration and turnout than Mississippi, which is covered by Section 5 of the act.

But a close look at census statistics indicates the chief justice was wrong, or at least that he did not look at the totality of the numbers.

Totenberg goes on to say that the statistics Roberts used were taken from a lower-court dissenting opinion, statistics that in turn were taken from a 2010 census report.  “But,” Totenberg says, “upon close examination, the numbers are less than reliable, according to the Census Bureau itself.”  She explains:

Here’s the deal. The Census Bureau does voting surveys to look at voting patterns nationwide, but the survey is based on a very small sample. Most recently, in 2010, the survey looked at 94,208 voters nationwide. Break that up into roughly proportional samples in each state, Census officials say, and it is really not possible to compare states because those with relatively low minority populations have a much higher margin of error.

The number of black citizens eligible to vote in Massachusetts is 236,000, while it is 721,000 in Mississippi, more than three times that number. Therefore, according to Census officials, when looking at the estimated turnout rate in Massachusetts, the voting percentage for African-Americans at first blush is estimated at 39.3 percent. But the margin of error is 11.5 percentage points, meaning that the black voter turnout actually could be as high as 50.8 percent (or, conversely, as low as 27.8 percent). 

Now, look at Mississippi, where black turnout is listed at 48.7 percent. But because of the large size of the African-American population that was sampled, the margin of error is only 5.4 percentage points.

That means that factoring in the margin of error, the black turnout rate in Mississippi could be as high as 54.1 percent, or as low as 43.3 percent.

So, if you factor in the margins of error at their extremes — with Mississippi at the low end and Massachusetts at the high end — Mississippi could have had a black voter turnout rate that was 7.5 percentage points lower than Massachusetts.

Bottom line, as Census officials told me, these numbers are simply not reliable for state-by-state comparisons because of the high margins of error in some states.

Yep, John Roberts, it turns out, is no statistician.  But neither is he, well, a social scientist. Or even a moderately sharp observer of politics.  At least, not of Massachusetts politics. Where, y’know, Democrats usually win with lopsided victories in, say, House races in predominantly black Congressional and state-legislative districts; where the outcome of the state’s electoral college presence in presidential elections has not been in doubt for decades; and where neither Ted Kennedy’s nor John Kerry’s reelection was even remotely in doubt since, I guess, the 1994 Ted Kennedy/Mitt Romney campaign. Totenberg’s report makes clear that voting in the hotly-contested statewide race to replace Kennedy, who died in office–a special election in late 2009–was not part of the census report, which measures voting only in national elections.  

So, might not the question of what’s at stake in a particular election matter, even when you’re a Supreme Court justice who’s spent decades wanting to see the Voting Rights Act’s demise and will not be fussy about the grounds you state for your decision?  I mean, just to make it look sorta rational?

Most of the media attention concerning that oral argument focused on what were truly shocking comments by Scalia in which he said both that voting rights are a racial entitlement and, equally stunningly, although gaining less attention, that the motive of members of Congress in voting to “perpetuate” that “racial entitlement” in extending the Voting Rights Act–political reasons, he said–is appropriate reason for the Supreme Court to refuse to give the usual “deference” (here, legalese for benefit of the doubt) to Congress’s legislative decision after weighing extensive evidence, even if the motive was itself not unconstitutional.  

This latter–that the motive of members of Congress, which in this case no one claims was an unconstitutional motive (e.g., a racist motive or a religious-discrimination motive)–purports to give the Court the constitutional authority to reject Congress’s legislative choices–is so obviously bizarre and dangerous that, in this case, it likely won’t garner agreement by any other justice. But that oral argument was the second time in less than a year that Scalia offered this argument, and the first time he did so, he was joined by three other justices.

The case in which this occurred was the ACA (Obamacare) case.  In his dissenting opinion, he claimed that because a majority of the Court was voting to strike down as unconstitutional one section of the statute–the section concerning the consequences to states of refusing to agree to accept the expansion of Medicaid–the Court must strike down the rest of the statute, not because a majority thought the rest of the statute also was unconstitutional (a majority did not), but because a few members of Congress who voted for the statute might not have voted for the statute if that Medicaid-expansion part was not part of it.  The ACA passed the Senate with no votes to spare, see, so, well, I mean, who’s to say that without the Medicaid-expansion part, the statute would have passed at all?!

Rest assured, though, that this, like sooooo many other movement-conservative gimmicks, would be entirely discretionary with the justices, or lower-court judges, case by case.  A budget bill that conservatives favor, and that’s enacted in a close vote, would not be strikeable in its entirely even if it contained some part that a majority of the Court thinks is unconstitutional.  But a budget bill that disfavored by conservatives, and enacted in a close vote, might be strikeable in its entirety if one part is deemed unconstitutional, since ya never know whether it was that log-rolling of the sort that Scalia, Kennedy, Alito and Thomas objected to in the ACA, and that involved the unconstitutional provision, that enabled the passage of the budget bill.

This, by the way, apparently was the bridge-too-far that began Roberts on the road to a change of heart, and change of vote, on the constitutionality of the individual-mandate provision. Reportedly, it really offended and scared him.  But it got the votes of four of the nine justices.

This time around, though–in the Voting Rights Act case–Scalia’s apparently trying only to use this motive-matters argument to strike down a key section of the Act, not the whole thing. Which makes sense, since log-rolling wasn’t the reason for the 2006 reenactment of the law, and, as I said, the law was reenacted by overwhelming votes in each house; 98-0 in the Senate. But luckily for Scalia and friends, among them Roberts this time, there is that census report.  

And Nate Silver hasn’t been asked to analyze it. And he probably won’t be.

UPDATE: OH. WOW.  Politico reported last night, in an article titled Massachusetts official slams chief justice’s comments on Voting Rights Act:

The problem, Massachusetts Secretary of State William Galvin says, is that the data does not back up Roberts’s claim.

“It’s just disturbing that the chief justice of the United States would spew this kind of misinformation,” Galvin told POLITICO.

Galvin’s office assumes that Roberts was going off U.S. Census Bureau data, which is one of the only national datasets on voter turnout by race, but they say the 2010 numbers don’t support what Roberts is saying.

“He’s wrong, and in fact what’s truly disturbing is not just the doctrinaire way he presented by the assertion, but when we went searching for an data that could substantiate what he was saying, the only thing we could find was a census survey pulled from 2010 … which speaks of noncitizen blacks,” Galvin said. “We have an immigrant population of black folks and many other folks. Mississippi has no noncitizen blacks, so to reach his conclusion, you have to rely on clearly flawed information.”

The 2010 tables show that Massachusetts does have a high discrepancy between turnout of white and black voters, but is in line with several other states, including Minnesota, Kansas and Washington, which actually has a wider ratio. The states are also similar on registration numbers. Additionally, the margin of error on each of these states’ data is over 10 percentage points, and many states on the list had populations of blacks so small, data wasn’t even available.
“We reached out to academics at many institutions … and they could find no record either, they were puzzled by [Roberts’s] reference,” Galvin said.

So Roberts was gamed by an incompetent or intellectually dishonest lower-court judge, from whose dissenting opinion Roberts took the bait, the hook, the line–and the sinker. It’s fairly commonplace for lower-court judges to misstate or omit key evidence.  Sometimes, it’s because the law clerk they’ve assigned to do their work for them doesn’t bother to actually nail down or verify facts put into briefs, and sometimes it’s just that they know how they want to rule, and just cherry-pick truncated statements of fact to support their chosen conclusion.  And sometimes–and believe me; this is true–they just fabricate a fact out of nowhere.

But, really–the chief justice of the U.S. Supreme Court using a statistic on voting that includes non-citizens as eligible to vote, because he just lifted a surprising statistic from a lower-court judge’s dissenting opinion, without first looking into its plausibility, much less its actual accuracy?

What’s next? The chief justice relying unquestioningly on a Bob Woodward report?

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Yes. Yes! YES!!!!: “New Subcommittee to Focus on Federal Courts and Bankruptcy System.” [With correction]*

Well, well, well.

The Senate Judiciary Committee has created a new subcommittee this year to specifically oversee the federal courts and the nation’s bankruptcy system, including administration and management, judicial rules, the creation of new judgeships.
Last session’s Administrative Oversight and the Courts Subcommittee has been split into two separate subcommittees for this session. Senator Richard Blumenthal will chair the new Oversight, Federal Rights and Agency Action Subcommittee, while Senator Chris Coons (D-Del.) will become the chairman of the new Bankruptcy and the Courts Subcommittee.
Coons, a lawyer and the main proponent of a bill last year that reauthorized expired bankruptcy judgeships, said he will focus on a wide range of issues in his subcommittee hearings. “We have a judicial vacancy crisis in many parts of this country, and I’d like to look at what can be done to address it,” Coons said in a written statement.

“Our federal courts have traditionally been the last bastion for many Americans to assert their civil rights, but recent federal court decisions have made it harder to not only enforce federal civil rights, but also rights that people may have as a consumer or as an employee under state law,” Coons said. “That has to change.”
New Subcommittee to Focus on Federal Courts and Bankruptcy System, Todd Ruger, The Blog of LegalTimes, today.

Oooooooohhhhh, yah!  Might we finally see an end to, say, the Rooker-Feldman doctrine? [Don’t ask.] And the Younger doctrine?  [Don’t ask.]  And the Supreme Courts’ Orwellian conflation of “liberty” and state “sovereignty” in federal habeas corpus law concerning criminal convictions if state court? [Pleeease don’t ask.]  

Okay, I’ll just say this much, since I know you’re asking even though I’ve asked you not to: The Rooker-Feldman and Younger doctrines are the civil-litigation equivalent of federal habeas corpus law concerning criminal convictions if state court.  Got that? I thought so. 

Except that in the latter, the justices, good textualists/originalists that they are, distort an actual existing federal “jurisdictional” statute in a manner that renders it flagrantly in violation of, um, the Fourteenth Amendment and the Supremacy Clause.  (States’ rights! Liberty! Er, liberty for states to violate individuals’ constitutional rights, as long as those rights aren’t, say, Second Amendment ones, or Fifth Amendment “takings” ones!)  But in the former, the civil-litigation “jurisdiction” “doctrines,” they’re not even purporting to interpret a jurisdictional statute; they’re creating their own “jurisdictional” law in contravention of federal jurisdictional statute.  (The Rooker-Feldman doctrine was created in a 5-4 opinion in 1983 that purported to interpret a part of the main federal-court jurisdictional statute that was repealed, at William Rehnquist’s request, three years later. No matter, the doctrine has only metastasized since then.)

Funny, how that separation-of-powers thing matters only when the Republican-appointed justices want it to. Y’know, that thing in Article III about it being only the Congress that has the authority to write court-jurisdiction laws (which the Supreme Court can declare unconstitutional but has no constitutional authority otherwise to create court-jurisdiction “doctrines”)? Aw, never mind.

Also, maybe now we’ll get some changes to the statutes and court Rules whose court filing fees and private-printing-of-say-cert. petition fees, and outrageous cost-shifting from plaintiffs to governments and mega-corporations for the government’s or mega-corporation’s litigation expenses, sometimes willy-nilly including their (the civil-litigation defendant’s) attorneys’ fees but in any event routinely including thousands of dollars in non-attorney-fees “costs–usually because the lawsuit was tossed out of court on some procedural/jurisdictional gimmick.  When there isn’t an already-existing procedural/jurisdictional ground that can be distorted to dismiss the lawsuit, one can always be created just for that occasion.  (And you thought this happened only to Al Gore!)

But I’ve saved the best for last: Now, maybe–maybe–we’ll finally get a law establishing an Office of Inspector General to review judicial-misconduct complaints and lifting the (yep, you guessed it) the prohibition against the complainant’s public disclosure of the fact that a complaint was filed.  Upon pain of dismissal of the misconduct complaint. Which, in one case I know of, involving a bizarre ex parte communication between a federal trial-level judge and a federal appellate judge in another region of the country (the trial-level judge jaw-droppingly implied in an  order he issued dismissing the lawsuit that he was doing so at the private urging of the appellate judge; seriously) would mean that, sometime during the now-28 months* in which the misconduct complaint has been pending–and before the two judges involved retire (one will be eligible this May; the other will be eligible later in the year)–the public might already know about what to of their esteemed judicial servants were up to back in 2007-08. And so might the Public Integrity Section of the Criminal Division of the Justice Department.

I would greatly appreciate it if anyone who knows what I’m referring to not post anything here about it.  This isn’t the time.  Or the place.  Seriously. Thank you.  

And anyway, that’s just one of many, many instances of truly blatant abuse of the current the-law-allows-us-to-circle-the-wagons-almost-no-matter-what system.  I know of other jaw-dropping instances, including one directly related to the one I’ve somewhat described. All for one, and one for all!

But this is the time, and one of the places, to begin to urge that Congress not–yet again– be cowed by the Supreme Court justices’ cries of  “ But … but … judicial independence!”  

Yeah, judicial independence.  And interdependence. That’s my point, as well as theirs.

I think that these are all things that both liberals and Tea Partiers can, and will, join together on.  We’ll see.

Nowwww we’re talkin’.  Maybe. We’ll see.  

It’s time now.  Really.

*Initially this post said incorrectly that the judicial misconduct complaint has been pending for 25 months. It has been pending for 28 months. Corrected 2/4.

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The Rightwing Supreme Court Justices’ Fair-Weather "State Sovereignty” Canard

Two days ago, Dan posted an entry by run75441 titled “SCOTUS Chastises Congress and the Executive Branch.”  The post’s title wasn’t quite accurate; run’s post was about Chief Justice John Roberts’ annual state-of-the-judicial-branch report, in which he was writing in his capacity as administrative head of that branch, not in his actual judicial capacity, and not for the other justices.

Run (who didn’t title the post; Dan did) deeply criticized Roberts for bragging about the austerity of the federal courts in recent years, including his own court, which, he also bragged, had decided on 64 cases in its last term.  That was down from, I think, 70 the term before, and the main reason for that reduction was that the ACA case consumed a full week of oral-argument slots– the full week at issue normally consisting of arguments in six–count ‘em, six!–cases; some full weeks consist of four arguments, leaving the justices slightly less exhausted than they are after the six-argument work weeks.

Roberts implied–he did not say so, expressly, but he did imply–that Congress and the White House take a cue from the justices and force the federal government to make do with less money.  To which I suggest that the justices really lead by example, and get rid of their four-justices-apiece law clerks, who do most of their work for them and start doing their legally-mandated jobs themselves.  After all, the federal government at least doesn’t pay salaries to congressional lobbyists–the equivalent of Supreme Court law clerks.

Anyway, I posted a comment to run’s post, and then asked Dan to add it as an update to run’s post, which he did.  My comment said:

The Supreme Court is rarely in session.  It’s seasonal, part-time work.  They usually hear argument in 10 cases a month, seven months a year.  In December, they didn’t hear even that many.
There’s really sooo much that can, and should, be said about the issue of (virtually universal lack of) access to the Supreme Court, and its repercussions.  Roberts’ bizarre, cutesy annual report is … oh … I don’t know …characteristically hubristic?

Run responded to my comment, and I then responded to his, writing:

What’s especially outrageous is the type of situation you’re talking about [a federal habeas corpus case challenging the constitutionality of aspects of the proceedings in a state-court criminal case]: The Supreme Court almost never agrees to hear cases on “direct appeal” (a legal term of art) from state supreme courts, in criminal or civil cases, with the major exception that they do often agree to do so in criminal cases when it is the state (i.e., the prosecution) that is asking them to hear hear the case in order to overrule a (rare) state supreme court ruling in favor of the criminal defendant. In state-court criminal cases, when it is the defendant who is asking the Supreme Court to hear the case in order to overturn a conviction, on constitutional grounds, the Supreme Court seems to figure that the criminal defendant can file a habeas corpus petition in a lower federal court.
Which they can, but the Supreme court has made that right an all-but-empty one–just a shell game, really–by interpreting a 1996 “jurisdictional” statute in a way that bars the lower federal courts from throwing out the state-court conviction on constitutional grounds in almost every case. With each passing Supreme Court term, the right to federal habeas review becomes even narrower, a seeming impossibility until it happens. In the last two years, the Supreme Court has treated that right as all but nonexistent. So the almost-total lack of access to the Supreme Court on direct appeal by state-court criminal defendants effectively removes access to constitutional review in federal court.
This is even truer in civil cases [including some that involve incredibly important, truly fundamental rights of the sort protected under international human rights laws, although they have nothing at all to do with, say, prison inmates; really–trust me on this], thanks to a set of perverse, gimmicky Supreme Court-created “jurisdictional” doctrines, which the Supreme Court has stood by and watched metastasize to remove any access to federal court in order to make a constitutional challenge, except for ExxonMobil, which asked the Supreme Court to limit the doctrine at issue, which the Court did, so narrowly as to apply in almost no other case, especially since the other, related doctrine actually bars access in the circumstance in which ExxonMobil was allowed to have it. (Sort of like Bush v. Gore.)
Anthony Kennedy, the leader of this state-courts-have-sovereignty-and-dignity! juggernaut, likes to say this is done in the name of liberty. (Isn’t everything the rightwing wants done in the name of liberty?!) Which reminds me of a political science class I once took on Maoism. [Maoism] included, basically, the routine use of Orwellian language, in which everything is the opposite of what its name or description indicates.
Of course, the current Supreme Court’s goal–the goal of the legal right since the early 1980s–is to turn the law into nothing but circuitous yellow-brick-road procedure: a dead-end labyrinth whose very purpose is its circuitry and fruitlessness. They’ve come incredibly close to succeeding.

There’s a whole lot more about this that can, and should, be said, and I plan to write in more depth about it.  Which will make me the only one writing for public consumption about it; the general news media covers only “substantive” legal issues (“substantive” being another legal term of art; legal issues are either “substantive” or “procedural.”)  And rarely covers even substantive issues that aren’t part of the culture wars debate.  Which is really nice for the legal right, because their justices and judges can, and do, do just about anything they want, completely under the radar.

But for now, I’ll just add that the judicial right, lead on this by Kennedy and Clarence Thomas, conflate state sovereignty with freedom, but, at least regarding those two and their wingy three colleagues and some (but not all of their lower-court compadres), do so only with respect (pun most definitely intended) to state courts.  To them, state legislative- and executive-branch actions (e.g., state statutes) are fair game for constitutional challenges, and they harbor no inhibition whatsoever about impinging upon state “sovereignty” in recognizing the Constitution’s Supremacy Clause when striking down as unconstitutional state statutes that the political right doesn’t care much for; Texas’s colleague-admissions affirmative action law, say.  (Sit tight for the upcoming oral argument there in that case.)  And their summary reversal of the Montana Supreme Court’s ruling late last year upholding the constitutionality of Montana’s longstanding campaign-finance statute is another example that comes (very) quickly to mind.  My mind, anyway.

To be fair to Kennedy, and certainly to his credit, he–and he alone, among the Fab Five–does extend this principle to state statutes that liberals don’t like.  Texas’s criminal anti-sodomy statute is one example, but there are other important ones as well.

But, in what appears to me to be nothing more than just old-fashioned professional courtesy, Kennedy effectively exempts state judicial branches from Supremacy Clause mandates to honor constitutional rights of individuals.  And state courts violate individual procedural and substantive rights, in criminal cases and in certain types of civil cases, with absolute abandon, comfortable in the knowledge that they can.  The result, far, far more often than not, is the very antithesis of freedom.  Except in the Matter Hatter-esque language that the legal right has found so useful.

So, next time Kennedy or Thomas writes an opinion singing the praises of state sovereignty–by which they almost always just mean state-court sovereignty–as advancing “freedom,” ask them (rhetorically, of course; they won’t actually hear you unless you retain Paul Clement to speak to them for you, which was basically run75441’s point) whether they think that, say, German Jews in the mid- and late 1930s were freer because Germany was a sovereign state.

I will, anyway.  Or maybe I’ll just ask the Mad Hatter. Orwell lives. These days, though, in this country it’s called “federalism.”


Occasionally, one of my AB posts goes viral (relatively speaking), racking up a couple thousand views on statcounter.  This is one that I hope does.  Actually, I hope it gets a million hits.

Yeah. A million hits would be good.

Is there such a thing as hitting the Supreme Court in effigy?

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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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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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