Tag Archives: Supreme Court

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Health Law Not A Sure Bet In Court

by Stuart Taylor, Jr.

National Journal

Editor’s Note: This is an updated version of Stuart Taylor’s Dec. 12 Opening Argument column.

What chances of success await the lawsuits challenging the constitutionality of the new health insurance reform law filed by 14 state attorneys general this week, with more lawsuits by states, individuals, and companies in the pipeline?

Not much, according to most of the academic experts who have weighed in. They confidently predict that the Supreme Court will (if the case gets that far) uphold the new law’s major provisions. These include the much-debated mandate for individuals to buy comprehensive health insurance unless they’re already covered by employer-based plans, and also the requirement that states spend billions of dollars expanding their Medicaid programs (unless they withdraw) and administering the complex new law.

These experts cite the justices’ very broad reading since the New Deal of Congress’ powers to regulate interstate commerce and to tax and spend.

 

The need to govern an ever more interconnected nation has spawned a long line of precedents expanding the commerce power.

 

I, too, would bet on the major provisions of the 2,400-page law being upheld. But "these challenges are not frivolous," as the Washington Post said in an editorial, and "the case is not as clear-cut as many legal scholars have argued."

The fact is that the costly federal mandates that the law imposes on state governments, individuals and families are without close precedents. And the lopsided academic response is attributable partly, though not entirely, to the lopsidedly liberal policy preferences of the professoriate.

Indeed, most scholars and other analysts have virtually ignored the new law’s most vulnerable (in my opinion) major provision, which the plaintiff states say violates their sovereignty.

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Washington’s Landmark Antigay Case

by Stuart Taylor, Jr.

Newsweek

Is signing a petition a public act, like holding up a protest sign, or is it a private decision, like casting a vote? That question is before the Supreme Court next month, in a case that could have far-reaching implications for activism on both the left and right.The controversy began last year when 138,000 Washington state residents signed a petition to repeal benefits for same-sex domestic partners. The effort, which became Referendum 71, failed at the ballot box. But that wasn’t the end of

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Is signing a petition a public act, like holding up a protest sign, or is it a private decision, like casting a vote? That question is before the Supreme Court next month, in a case that could have far-reaching implications for activism on both the left and right.The controversy began last year when 138,000 Washington state residents signed a petition to repeal benefits for same-sex domestic partners. The effort, which became Referendum 71, failed at the ballot box. But that wasn’t the end of

Is signing a petition a public act, like holding up a protest sign, or is it a private decision, like casting a vote? That question is before the Supreme Court next month, in a case that could have far-reaching implications for activism on both the left and right.

The controversy began last year when 138,000 Washington state residents signed a petition to repeal benefits for same-sex domestic partners. The effort, which became Referendum 71, failed at the ballot box. But that wasn’t the end of it: Washington’s secretary of state, Sam Reed, tried to make the signers’ names public, citing state law. Fearing harassment, some signers sued to block the release of their names-setting the stage for a lose-lose decision.

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Judicial Factions And The Constitution

by Stuart Taylor, Jr.

National Journal

The news from the March 2 oral argument in the Supreme Court’s biggest pending case was that the five conservative justices seem poised to make the Second Amendment right to bear arms applicable to state and local gun controls, as well as federal. In the process, they will strike down the unusually strict handgun bans in Chicago and Oak Park, Ill. — probably in June.

But debate about the gun case, McDonald v. City of Chicago, has ranged far beyond guns. It has spawned an alliance of convenience among distinguished scholars in the progressive and conservative-libertarian camps.

Both have filed amicus briefs that take the gun-rights side while mainly seeking to expand other rights as well.

The detailed constitutional arguments show with unusual clarity why efforts to expand rights — whether favored by conservatives or liberals, or both — typically boil down to a bare-majority judicial faction using highly debatable theories to override democratic governance.

Many of the briefs in the gun case urge the Court to revive the 14th Amendment’s open-ended but long-moribund "privileges or immunities" clause and use it as a new fount of judicial power to strike down enactments imposed by majority rule. But the privileges-or-immunities alliance breaks down when its members are pressed on which laws should be struck down and which rights should be expanded or created.

Conservative libertarians who want the courts to reject economic regulations stress the considerable evidence that the authors of the privileges or immunities clause wanted to protect property and contract rights as well as gun rights.

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Conservatives Forfeit High Ground On Activism

by Stuart Taylor, Jr.

National Journal

For decades conservatives have accused liberal Supreme Court majorities of judicial activism, by which I mean sweeping aside democratically adopted laws and deeply rooted societal traditions to impose their own policy preferences based on highly debatable interpretations of the Constitution’s language and established meaning. On Thursday, the five more conservative justices — and in particular Chief Justice John Roberts and Samuel Alito, who went well beyond anything they’ve said before — forfeited whatever high ground they once held in the judicial activism debate.

I refer, of course, to the hugely important 5-4 decision freeing all corporations and, by clear implication, labor unions to spend unlimited sums supporting or opposing federal candidates.

The majority’s sweeping and unprecedented interpretation of corporations’ First Amendment rights, written by Justice Anthony Kennedy and joined by Antonin Scalia and Clarence Thomas, as well as Roberts and Alito, wiped out federal laws dating back 63 years and two major precedents.

And while the Court’s green light for "independent expenditures" of corporate funds on elections left intact the ban on direct corporate contributions to candidates, it nonetheless risked increasing the already worrisome dependence of candidates on various forms of big-business and big-labor support.

 

Kennedy all too cavalierly bats aside a compelling argument for banning executives from spending shareholder funds on elections.

 

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The End of Restraint

by Stuart Taylor, Jr.

Newsweek

The Supreme Court’s five conservatives are properly protective of American citizens’ First Amendment rights to spend as much of their money as they wish on political speech, both individually and by funding nonprofit advocacy groups. But this was no justification for the court’s blockbuster, precedent-smashing Jan. 21 decision unleashing corporate executives to pour unlimited amounts of stockholders’ money-without their consent-into ads supporting or attacking federal candidates. Indeed the 5-

The Supreme Court’s five conservatives are properly protective of American citizens’ First Amendment rights to spend as much of their money as they wish on political speech, both individually and by funding nonprofit advocacy groups. But this was no justification for the court’s blockbuster, precedent-smashing Jan. 21 decision unleashing corporate executives to pour unlimited amounts of stockholders’ money-without their consent-into ads supporting or attacking federal candidates. Indeed the 5-4 decision would allow any big company to spend a fortune attacking candidates whom many, or even most, of its stockholders would rather support. And corporations-including multinationals controlled by foreigners-will spend money on elections not to advance the political views of their stockholders, but to seek economic advantage.

So the court’s decision strikes me as a perverse interpretation of the First Amendment, one that will at best increase the already unhealthy political power of big businesses (and big unions, too), and at worst swamp our elections under a new deluge of special-interest cash. More ominously still, Citizens United v. FEC lends credence to liberal claims that all f…

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Campaign Money And The Chief Justice

by Stuart Taylor, Jr.

National Journal

The Supreme Court, especially Chief Justice John Roberts, is at a crossroads.

The immediate issue is whether to demolish Congress’s overly broad, 62-year-old ban on corporate spending in federal elections or, instead, carve out a sensible exception.

The broader question is whether Roberts and Justice Samuel Alito will aggravate the Court’s polarization and give plausibility to charges of conservative judicial activism by providing the fourth and fifth votes for demolition of the ban, and of two important precedents as well.

I fear that the two Bush appointees may be poised to do just that. In their comments during the September 9 oral argument in the big campaign finance case, Citizens United v. Federal Election Commission, they seemed to be pushing for an unnecessarily sweeping decision that would enhance the political power of big business corporations (and would almost certainly be extended to unions as well).

Roberts and Alito would thereby be passing up a golden opportunity for principled compromise held out by liberal Justice John Paul Stevens. He credited a National Rifle Association amicus brief, by conservative lawyer Charles Cooper, with suggesting (as its second-favorite outcome) what Stevens called "the wisest narrow solution of the problem before us." That would be excising with a scalpel, not a meat ax, the one serious First Amendment defect in the campaign finance rules now before the Court.

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Did Precedent Make Sotomayor Rule Against Ricci? – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

Judge Sonia Sotomayor has not defended her most widely criticized decision — the one rejecting a discrimination lawsuit by 17 white firefighters, and one Hispanic, against the city of New Haven, Conn. — as a just or fair result.

That would have been an uphill battle: Polls in June showed that huge majorities of the public wanted the Supreme Court to reverse Sotomayor’s decision.

And as I’ve explained elsewhere, although the Supreme Court split 5-4 in ruling for the firefighters in Ricci v. DeStefano, all nine justices rejected the specific legal rule applied by Sotomayor’s three-judge panel. That rule would allow employers to deny promotions after the fact to those who did best on any measure of qualifications — no matter how job-related and racially neutral — on which blacks or Hispanics did badly.

Instead of defending her panel’s quota-friendly rule and its harsh impact on the high-scoring firefighters, Sotomayor and her supporters have argued that she essentially had no choice. The rule that her panel applied had been dictated, they say, by three precedents of her own court, the U.S. Court of Appeals for the 2nd Circuit.

Some critics have expressed skepticism about this claim, but the media have shed little light on its plausibility. I seek to shed some below.

Because some of this gets technical, I’ll begin with critics’ simplest rebuttal to Sotomayor’s precedent-made-me-do-it claim:

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Sotomayor Sparks Debate Among Conservatives Over Originalism – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

"Many conservatives oppose Judge [Sonia] Sotomayor’s nomination because she does not appear to support originalism…. But when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint [by claiming] that the Constitution’s 14th Amendment mandated a policy of strict colorblindness by state and local governments…. The historical evidence that it did is weak…. To seek to invalidate laws without a strong argument that the Constitution requires doing so is precisely what conservatives usually mean by ‘judicial activism.’"

These words — which echo criticism of the Supreme Court’s conservatives by liberal scholars and Democratic senators — packed an extra wallop because they came from a leading conservative commentator, Ramesh Ponnuru of National Review.

His June 23 New York Times op-ed clashed with efforts by other conservatives to depict Sotomayor as a liberal activist and themselves as the champions of judicial restraint, provoking a lively exchange among legal experts on National Review Online.

Some reproached Ponnuru for what Roger Clegg of the Center for Equal Opportunity called "an ill-timed, ill-argued" piece implying that white people do not have the same rights as blacks to the equal protection of the laws. Wendy Long of the conservative Judicial Confirmation Network wondered whether Ponnuru had been "taken hostage by some NYT editorial page terrorists who waterboarded him until he agreed to sign that op-ed piece."

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Bumper-Sticker Judicial Philosophy – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

The bumper-sticker liberal view of constitutional interpretation might begin with President Obama’s assertions that "the Constitution… is not a static but rather a living document and must be read in the context of an ever-changing world," and that "we need somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom" or "to be poor or African-American or gay or disabled or old."

The bumper-sticker conservative view might begin with the standard denunciations of "legislating from the bench" and "judicial activism." Other formulations include: "Judges are like umpires. Umpires don’t make the rules; they apply them." "As a judge, I don’t make law…. I apply the law to facts." "Judges… don’t determine the law. Congress makes the laws. The job of a judge is to apply the law."

It’s notable that while the "umpire" analogy came from Bush nominee John Roberts in 2005, the subsequent two conservative-sounding quotes came from Obama nominee Sonia Sotomayor.

Sotomayor worked very hard last week not to sound like a liberal. So hard as to suggest that she and her White House handlers understand that the living-Constitution-plus-empathy approach is seen by many voters — fairly or unfairly — as a facade for judges rewriting the law to favor liberal constituencies and causes.

But the simplistic picture painted by many conservatives — and now by Sotomayor — of judging as a mechanical exercise with no place for moral and political values is unreal to anyone who understands the subjective nature of the choices that judges, and especially justices, must often make.

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The Lessons Of Bork – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

A Nexis search finds more than 50 mentions of "kabuki"– a form of Japanese theater that has become journalese for empty, stylized ritual — in news stories about the Senate Judiciary Committee’s hearings on Judge Sonia Sotomayor.

The most common explanation for why judicial confirmation hearings have become such empty rituals is that the Senate’s rejection of Judge Robert Bork in 1987 — after the conservative Reagan nominee had answered dozens of questions about his "originalist" judicial philosophy — proved that candor could be fatal for any nominee.

Since the Bork nomination, "the goal for judicial nominees has been to skate through by saying as little as possible as politely as possible," the New York Times observed in an editorial Tuesday.

There is much truth in this. But Bork’s fate did not prove that nominees have to hide or misrepresent their judicial philosophies in order to get confirmed.

For one thing, Bork probably would have been defeated even if he had ducked the questions about his judicial philosophy, as subsequent nominees have done.

For another, Sotomayor very probably would have been confirmed by a wide margin — albeit with a bit more difficulty — even if she had been far more forthcoming about her views of the law, and less determined to deny the apparent meaning of her controversial past statements.

It would be improper for judicial nominees to answer senators’ questions about specific issues that might come before them, for the reasons that I discussed on this blog. But there is no ethical requirement that nominees duck general questions about judicial philosophy. And it is affirmatively unethical to give deliberately deceptive answers.