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

AWESOME opinion today by Roberts in Bond v. United States!

I’ve written extensively here at AB about a two-time Supreme Court case called Bond v. United States, first three years ago when the case was heard the first time, then in the last few months as the case was heard there again.  My most recent post on it, from May 15, was called “The Supreme Court’s opinion in Bond v. U.S. will be about separation of powers.  But about separation of WHICH powers?”  I updated that post on May 17 to include an exchange between reader Mike Hansberry and me in the Comments thread to the post.

In that exchange of comments, I outlined exactly what I hoped the Court would do in the case–and how, and why.  I haven’t yet read the opinion and the concurrences in the judgment* and won’t have a chance to until later today, but SCOTUSblog’s Amy Howe and Tom Goldstein summarized it briefly on the live blog of the Court’s actions this morning, and it appears that the opinion, written by Roberts and joined by Kennedy and the four Dem appointees, is exactly what I said in that post and exchange with Hansberry that I hoped–but did not expect; no one did, best as I could tell–that the Court would do and say.  Here’s their summary from the live blog:

  • Here’s Lyle again. The third and final opinion is Bond v. US. The decision holds that Section 229 does not reach Bond’s simple assault. It is by the Chief Justice.
    by Amy Howe 10:11 AM
  • The decision of the Third Circuit is reversed. There are no dissents; there are multiple opinions, however. Scalia has concurred in the judgment, joined by Thomas and in part by Alito. Thomas filed an opinion concurring in the judgment in which Scalia joined and Alito joined in part. Alito filed an opinion concurring in the judgment.
    by Amy Howe 10:12 AM
  • The Court seems to avoid a major ruling on the Treaty power by limiting the federal criminal statute under which the defendant was charged.
    by tgoldstein 10:13 AM
  • The opinion makes clear that the Court does not interpret the scope of the international weapons treaty at issue. The state laws are sufficient to prosecute an assault like the one in this case. There is no indication in the federal law that Congress intended to abandon its traditional reluctance to define as a federal crime conduct controlled as criminal by the states.
    by Amy Howe 10:13 AM
  • The separate opinions by the other conservatives likely argue that the Treaty Power should be limited. But the Chief Justice and Justice Kennedy do not join them.
    by tgoldstein 10:13 AM
  • A quote from the Court’s opinion: “The global need to prevent chemical warfare does not require the federal government to reach into the kitchen cupboard.”
    by Amy Howe 10:14 AM
  • Here is the opinion in Bond.
    by kborkoski 10:16 AM

The surprise basis for the ruling–an actual honest consideration of what Congress’s purpose was, and the breadth Congress actually intended, in enacting the statute at issue–is similar to a ruling on May 19, in an opinion by Ginsburg, concerning a procedural statute.  This is a very good, new development for the current Court (although the three dissenters in that case, a Copyright Act case, called Petrella v. Metro-Goldwyn-Mayer, were Roberts, Kennedy and Breyer).

The other big news from the Court this morning–and this is VERY big news–is that the Court agreed to hear two cases filed respectively by the Alabama Democratic Conference and the Alabama Legislative Black Caucus, both which lost in the lower federal courts.  Amy Howe writes:

The questions at issue in the Alabama redistricting cases involve packing black voters into districts to concentrate their voting strength. In 13-1138, there is a subpart in the question that the Court agreed to hear about whether these plaintiffs have standing to bring their claims of racial gerrymandering.

And, a few minutes later:

Here’s Lyle [Denniston, at the Court]. We have one grant (technically noting of probable jurisdiction), in the two Alabama redistricting cases, Alabama Democratic Conference v. Alabama (is limited to question one), Alabama Legislative Black Caucus v. Alabama (question two only).

I probably will write a detailed post on Bond, hopefully tomorrow.  I don’t think I’ll have time today.


*Corrected to say “concurrences in the judgment” rather than “dissents.”  I was really rushed this morning when I inadvertently misstated  that these were dissents, despite Amy Howe’s clear statement that these were concurrences in the judgment, not dissents–a particularly important distinction in this case, and one that highlights the importance of the grounds the majority did choose versus the grounds that they rejected. 6/2 at 8:42

Tags: , , , , , , , , Comments (0) | |

SCOTUSblog’s Problem: It’s Not Incorporated [OK, I’m sure it is, but you get the point.]

Last week, the Senate Press Gallery denied SCOTUSblog’s application for a press pass, and advised us that it would refuse to renew the credential it had previously granted Lyle when it expires next month.  We were disappointed in that decision, and we are grateful for the support that we have received through social media, emails, and phone calls.

We thought it would be useful to write and explain the state of play regarding our credentialing.  SCOTUSblog is not now, and has never been, credentialed by the Supreme Court.  The Court’s longstanding policy was to look to credentials issued by the Senate.  We pursued a Senate credential for several years, modifying several policies of the blog to address concerns expressed by the Gallery.  Last year, we  finally succeeded – the Senate Press Gallery credentialed Lyle as a reporter for SCOTUSblog.  We then presented that credential to the Supreme Court, thinking that the issue was resolved.

But the Court declined to recognize the credential, explaining that it would instead review its credentialing policy.  The Court has not indicated when that review will conclude.

— An update on our press pass, Tom Goldstein, SCOTUSblog, this morning

I would joke about what happens to popular blogs when they start linking to blog posts by the likes of me on blogs like AB (talk about hoi polloi!)–or about SCOTUSblog’s need to incorporate so that it is an association of press citizens, or something (OK, I did do that in this post’s title)–but really, this isn’t funny.  At all.

Harry Reid, and also the Senate Judiciary Committee, should become involved the Supreme Court’s credentialing policy, which should not be left entirely to the Supreme Court to establish.

Tags: , , , Comments (9) | |

SCOTUSblog’s Tom Goldstein says a same-sex-marriage victory in DOMA almost precludes a same-sex-marriage victory in the Prop 8 case. I disagree.

Students of Windsor and Hollingsworth have always recognized a basic tension between the theories of gay-rights advocates in the cases.  The challenge to DOMA is undergirded by a sense that marriage is a matter for state rather than federal regulation.  The challenge to Proposition 8 is a direct challenge to just such a decision by a state.

Yesterday and today, the irresolvable depth of that tension in this Court became obvious. The arguments would be easier for the public to understand if they had occurred in reverse.

The arguments would be easier for the public to understand if they had occurred in reverse? Maybe.  But I think I understand them well enough to disagree the depth of that tension in this Court is irresolvable.  I say that, even recognizing that the operate words in Goldstein’s statement are “in this Court.”  By which he means, this Court with it’s membership.

Goldstein explains:

A majority of the Court seems poised in Windsor to invalidate DOMA Section 3 on the theory that the federal government has no interest in adopting a definition of marriage applicable to 1100 statutory provisions that as a practical matter alters the very nature of what it is to be “married.”  That role, the Court will rule, is historically reserved to the states.  So DOMA is a federalism [i.e., states’-rights] case. …

But if DOMA is going to be decided as a federalism case, Hollingsworth [the California Prop. 8 case] becomes a much harder case for the plaintiffs [who are challenging Prop. 8 as violative of individual rights].  That ruling in Windsor implies that California should have a parallel right to decide the definition of marriage for itself – i.e., that Proposition 8 should be upheld.

Except that that ruling in Windsor would imply that California should have a parallel right to decide the definition of marriage for itself under the Tenth Amendment, which is the main states’ rights provision of the Constitution.  Such a ruling in Windsor would say nothing at all about the Fourteenth Amendment, which is the main individual-rights provision of the Constitution vis-a-vis the states.

The Tenth Amendment does not trump or negate the Fourteenth Amendment–although I acknowledge that Kennedy and other uber-states’-rights proponents do claim sometimes that it does.  Kennedy does this, regularly, in state-prosecution criminal cases and in other lawsuits in state court when he effectively says that the Supremacy Clause exempts state judicial branches from its mandate.  But he (unlike, say, Clarence Thomas) does recognize the application of the Supremacy Clause to state legislative and executive branches.  And, presumably, to state voter referendums.  Such as Prop. 8.

I think Goldstein improperly conflates the Tenth Amendment and the Fourteenth Amendment in these cases.  The DOMA case is a Tenth Amendment case.  The Prop. 8 case is a Fourteenth Amendment case.  Just as with state criminal laws, a state law may violate the Fourteenth Amendment’s due process or equal protection guarantees to individuals, even if under the Tenth Amendment the state is entitled to enact laws within a generic genre–criminal law, family law, marriage law, for example.  The Fourteenth Amendment prohibits states from enacting laws that, although they are within those generic genres, nonetheless violate individuals’ rights conferred by the Fourteenth Amendment or some other part of the Constitution that establishes individuals’ rights.  

Kennedy does understand that. It was the basis for his opinion in Lawrence v. Texas, the state-criminal-sodomy-statute case in 2003.

Tags: , , , , , , Comments (2) | |

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.  

Tags: , , , , , Comments (7) | |