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Tag: "Supreme Court"

ACA Argument Postmortem

[ 97 ] March 28, 2012 |

After going back and forth for a year I ended up being somewhat more pessimistic than a lot of liberal observers before the argument, so I perhaps wasn’t as shaken as they were. (I agree with Jon Cohn did the oral argument did not at all make it clear that Kennedy will vote to strike the ACA, although it made clear that he was seriously entertaining the possibility.) So I’m about where I was — it comes down to Kennedy, and I don’t see how anyone can claim to know what he’ll do. But I do think that some pundits, especially on the political side, misunderstood the role precedent will play in the case:

First of all, I think (particularly among political writers) there’s an important misunderstanding. Even if we concede that the ACA is unquestionably constitutional under the Court’s precedents—something that I don’t think is strictly accurate, although they strongly point in that direction—it’s important to remember that the Supreme Court is not bound by its own precedents. Lower courts are, and for that reason some of the District Court opinions striking down the ACA were embarrassingly feeble. But the Supreme Court does not violate any legal practice by limiting or overruling its own precedents. The law allows enough discretion for the Court to use its powers unwisely in this case, and it might. It is true that even if it is legally permitted to do so, the Supreme Court is very reluctant to overrule major precedents. Even after four decades of Republican-dominated Supreme Courts, the major precedents of the Warren and early Burger Courts remain good law. There is no question in my mind that if the argument being made against the ACA required the Supreme Court to overrule Wickard v. Filburn and return the country to a pre-New Deal conception of the Commerce Clause, it would not do so. But the genius of the argument concocted by the ACA’s opponents is that it does not require the Court to explicitly overrule any existing precedent. I think that the distinction between “activity” and “inactivity” is utterly nonsensical as applied to the healthcare market, and Steven Breyer did a good job of explaining why at yesterday’s oral argument. But it provides a way for the Court to strike down this particular bill without threatening the fundamental structure of the New Deal.

So nothing prevents the Court from striking the law if they want to, and a majority might want to. Hopefully Kennedy will step back from the brink.

Meanwhile, if you want to get into the weeds of the oral arguments, I probably don’t need to tell you this but Lithwick has been brilliant (day one, day two.)

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So We Agree!

[ 124 ] March 28, 2012 |

Paul Clement is so good that he started his argument today with a devastating rebuttal of his own argument that the mandate is unconstitutional:

If the individual mandate is unconstitutional, then the rest of the Act cannot stand. As Congress found and the Federal Government concedes, the community-rating and guaranteed-issue provisions of the Act cannot stand without the individual mandate. Congress found that the individual mandate was essential to their operation.

And not only can guaranteed-issue and community-rating not stand, not operate in the manner that Congress intended, they would actually counteract Congress’s basic goal of providing patient protection but also affordable care.

Absolutely correct! In other words, the mandate is a necessary and proper part of a regulatory framework all parties concede is constitutional, and hence should be upheld. I’m glad we’ve reached a consensus here.

The Broccoli Menace

[ 72 ] March 28, 2012 |

While I’m waiting for my other piece on yesterday’s argument, since it’s relevant again I thought I’d dip into my nostalgia file and link to my piece about why the slippery slope arguments against the ACA are really dumb. Namely, 1)there’s a lot of traction on that slope, and 2)in any case the fact that the government could do a dumb thing with a given power isn’t actually an argument that the power is unconstitutional because it applies to every valid power.

By the way, it seems odd that a required purchase of broccoli is the most frightening reductio ad absurdum they can come up with for the ad hoc arguments against a policy nobody but the most radical libertarians thought was unconstitutional four years ago. I think the anti-New Dealers are ignoring Belle Waring’s dictum that wishes are totally free. If you’re going to come up with a SCARY exercise of government power that has no chance of ever happening, can’t you do better than the forced purchase of a reasonably tasty, very nutritious food? How about, “the government might force you to buy every movie Tom Shadyac and Michael Bay have ever directed in every available format and check to make sure that you watch them!” Or “the government could force you to buy a an expensive annotated edition of the Complete Works of Jonah Goldberg and make you read it!” Hell, I’d start to wonder if maybe getting rid of the Articles of Confederation was a mistake myself…

The Limiting Principle

[ 84 ] March 27, 2012 |

Some thoughts about day 2.

The key to Kennedy’s vote, evidently, is whether he can be convinced that there’s a limiting principle. Kennedy, unlike the other conservatives, does seem to understand that the health care market is different:

But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.

That’s my concern in the case.

But despite this, it’s clear elsewhere that he also feels the pull of the broccoli mandate crap. It’s hard to say which way he’ll go.

I also agree with Adam that if this was debate judging the ACA would be utterly doomed; despite starting with the stronger hand Verrilli was completely overmatched. He was puzzlingly weak even facing predictable questions with obviously better answers. Carvin wasn’t terribly good either, but Clement was about as good as you can be given the arguments he had to work with. Fortunately, it’s not a debate and oral argument will matter only modestly if at all, but Verrilli sure didn’t help.

Specious Argument Theater, With Nino Scalia

[ 145 ] March 27, 2012 |

Much more later about today’s argument, but I’d like to address this particular slippery slope hypothetical from Scalia, responding to the government’s argument about the necessity of the mandate to the plainly constitutional regulatory framework established by the rest of the act:

General Verrilli, you -you could say that about buying a car. If — if people don’t buy cars, the price that those who do buy cars pay will have to be higher. So you could say in order to bring the price down, you are hurting these other people by not buying a car.

I’m sure most of you have spotted the problem here, but there’s an obvious difference: the taxpayers aren’t obligated to buy you a care if you need one. You can choose to not participate in the market for cars; you can’t choose to not to participate in the market for health care because emergency rooms have to treat you.

Not that I think the slippery slope argument would prove much of anything even if the analogy was valid, but it’s not.

ACA Oral Arguments: Day 1 Recap

[ 19 ] March 27, 2012 |

Since I was skeptical about whether the Court was seriously considering using a jurisdictional ruling to dodge the constitutional issue ex ante, the oral arguments yesterday certainly did nothing to dissuade me.

Looking around, this seems to be the consensus. Had a lower court not bought the anti-injunction argument, I doubt the Court would have even asked for the question to be briefed.

Looking forward to tomorrow, Sarah Kliff’s primer is very useful.

The Aggressive-Aggressive Virtues

[ 86 ] March 26, 2012 |

The hot argument based on today’s argument is likely to be the idea that the Supreme Court will just duck the question of the ACA’s constitutionality using a jurisdictional dodge. It’s possible, but I actually don’t think it’s very likely. How I read history differently is that I see the courts ducking cases where a ruling would lack significant political support, not ducking “politically divisive” cases per se. To cite another example, the Court invented a (legally erroneous) reason to duck an interracial marriage case in the mid 50s, for example, because they didn’t want to uphold bans on interracial marriage but striking it down would have been enormously unpopular, and not just in the Jim Crow states. In this case, conversely, the Court would have more than sufficient political and public support if they vote to strike down the ACA; they have no reason to duck the case unless they want to on the merits anyway.

The Roberts Court and the War On Women

[ 37 ] March 22, 2012 |

I have a piece on the latest “sovereign immunity” atrocity up.

One additional note: in a footnote, Ginsburg reiterated (correctly) that Congress should be able to abrogate “sovereign immunity” in such cases for any reason it sees fit.   Sotomayor and Kagan, however, didn’t join the footnote.   It’s not the biggest deal in the world — if the votes were otherwise there to overrule this bad line of precedent they might do so anyway — but there’s no reason to acquiesce.

He Thought Plessy Was Right And Should Be Reaffirmed

[ 9 ] March 21, 2012 |

As I wrote about at some length during the dark ages of the blog, I think the evidence that William Rehnquist’s infamous memo urging Robert Jackson to uphold Plessy represented his own views was already definitive.   But in case you weren’t quite convinced, here you go.

Today In Great Dissents

[ 29 ] March 20, 2012 |

Say it, Justice Ginsburg.

Much more on this travesty imminently. The short version is that Supreme Court has joined the War on Women by combining a “federalist” doctrine that is embarrassing nonsense even by Rehnquist/Roberts Court standards with a denial of Congress’s explicit powers to enforce the Fourteenth Amendment unless it meets some unintelligibly arbitrary standards invented by the Court.

Also, given the Republican reluctance to reauthorize the Violence Against Women Act, it’s worth remembering that another case in which a bare majority of Supreme Court conservatives acted to read Section 5 of the Fourteenth Amendment out of the Constitution involved striking down a part of the Violence Against Women Act and immunizing a gang rapist from a civil suit.

Lawrence, Gideon, and Legal Storytelling

[ 4 ] March 6, 2012 |

I’m still waiting for my copy of Dale Carpenter’s book, but Dahlia Lithwick’s review is a beautifully written and important piece in its own right.    Lithwick’s piece focuses on a central irony of the case.  Kennedy’s opinion famously focused on the importance of relationships and intimacy, but Lawrence and Garner — the two men who were arrested for violating Texas’s sodomy laws, leading to the legal landmark — were not in a relationship and never had sex.   (Of the two of four policemen who claimed to see Lawrence and Garner engaged in sexual relations, one suggested that they were engaged in oral sex and one said they engaged in anal sex.   Were it not for the broader issues involved, it seems safe to say that the charge would have had trouble holding up even in a Texas court.)    Lawrence and Garner were not plaintiffs with the kind of story who get movies made about them, a necessity created by the fact that a couple in a same-sex relationship with children would have had too much to lose:

That’s the punch line: the case that affirmed the right of gay couples to have consensual sex in private spaces seems to have involved two men who were neither a couple nor having sex. In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story. Nobody had to know that the gay-rights case of the century was actually about three or four men getting drunk in front of a television in a Harris County apartment decorated with bad James Dean erotica.

Although this wasn’t the case LBGT rights litigators would have chosen, it worked — because the Supreme Court wanted to act and had a story it wanted to tell.

Another example of this phenomenon, which worked from the other direction, is Gideon v. Wainwright, the 1963 case that held that the 6th Amendment’s right to counsel was applicable to the states. Clarence Earl Gideon was also living on the economic margins, but his basic story — a very possibly innocent man, denied a fair trial, who scrawled an in forma pauperis petition in longhand from his jail cell and got his rights vindicated by the Supreme Court of the United States — is different. Unlike the tale of Lawrence and Garner, this is an inherently compelling legal story. Gideon was literally portrayed by Henry Fonda in a movie based on the excellent bestselling book about his case that remains in print.

And yet, as Scot Powe’s classic history of the Warren Court makes clear Gideon v. Wainwright was in its own way a Court-created story as much as Lawrence. (For that matter, in its details, the Anthony Lewis book does as well.) As Powe says, Gideon isn’t exactly the story of a lone defendant triumphing against insurmountable odds, as the fact that his case was argued at the Supreme Court by LBJ’s personal legal fixer and future two-time Supreme Court nominee would make readily apparent:

Somewhat less well-known are the facts that twenty-two states filed amicus briefs on Gideon’s side and that Florida could gain the amicus support of only Alabama and North Carolina for its claim that an accused could be validly convicted without the aid of counsel; Mississippi and South Carolina were the only other states not offering counsel — hardly, especially in 1963, a stellar lineup. Moreover, hitherto unmined files in the Clark and Douglas Papers reveal that five of the eight justices had already joined an opinion in another case holding that a defendant was entitled to counsel on appeal even if he could not afford a lawyer. If there is a right to counsel after trial, there is surely a right to counsel at trial. That opinion, however, was not published at the time because the case was put over to the next term so that Fortas could win Gideon. (pp.179-80.)

Lewis didn’t have access to the information about the case Powe discusses at the time, but as Powe says the conference vote ironically meant that Gideon himself could have argued his case in front of the Supreme Court and won. In addition to that case, the Court could easily have used the 1962 case Carnley v. Cochran to incorporate the right to counsel. But the Court decided that case on narrow procedural grounds because Warren’s clerks had already found Gideon and the Court preferred to announce the overruling of a major precedent in a case involving someone who was possibly innocent of a minor burglary rather than in a case involving someone who was probably guilty of incest and child molestation.

I don’t mean to suggest that this means that the selection of plaintiffs and case facts isn’t important; it certainly is. But courts can often find a way to tell the story they want to tell.

By the way, the sad conclusion to the Lithwick review:

At a press conference after the decision was announced, Lawrence read a brief prepared statement and Garner said nothing. Some advocates hoped that Garner might have a career as a gay-rights spokesman. After he gave a drunken speech at a black-tie dinner in the plaintiffs’ honor, that idea was scratched. The case is called Lawrence v. Texas. John Lawrence died last November. Almost no one took note. Garner died five years earlier, at the age of thirty-nine. When Lambda Legal proved unable to raise funds for a proper memorial or burial, Harris County cremated him and sent his ashes home to his family in a plastic bag. There was no funeral.

I’m glad Carpenter has chosen to tell their story, and I’m looking forward to his book.

The End of Grutter?

[ 24 ] February 22, 2012 |

I would like to buck the conventional wisdom, but I agree with everybody that the grant of cert in Fisher v. UT Austin is almost certainly the end of affirmative action in higher education. Certainly, four of the necessary votes are not in question:

The bad news is that Kagan’s recusal probably doesn’t matter because her vote will be irrelevant. Everything points to there being five votes to overrule Grutter. Antonin Scalia and Clarence Thomas are sure votes—not only did they dissent in Grutter, they have consistently held that all affirmative action programs are unconstitutional (even though this is flagrantly inconsistent with the “originalism” they claim guides their interpretation of the Constitution). Samuel Alito and John Roberts were not on the Court when Grutter was decided in 2003, but the 2007 Parents Involved ruling, authored by Roberts and joined by Alito, is an ominous sign. Chief Justice Roberts’s Young Republican debate society koan “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race” strongly suggests that the two George W. Bush appointees will adhere to the Scalia/Thomas absolutist position.

So this leaves us with Kennedy, who as Liptak notes, “has never voted to uphold an affirmative action program.” So I think we know where this is headed.

I think this is a good time to cite Stevens in Parents Involved:

There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education. The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.

The Chief Justice rejects the conclusion that the racial classifications at issue here should be viewed differently than others, because they do not impose burdens on one race alone and do not stigmatize or exclude…

[…]

If we look at cases decided during the interim between Brown and Adarand, we can see how a rigid adherence to tiers of scrutiny obscures Brown’s clear message. Perhaps the best example is provided by our approval of the decision of the Supreme Judicial Court of Massachusetts in 1967 upholding a state statute mandating racial integration in that State’s school system. Rejecting arguments comparable to those that the plurality accepts today, that court noted: “It would be the height of irony if the racial imbalance act, enacted as it was with the laudable purpose of achieving equal educational opportunities, should, by prescribing school pupil allocations based on race, founder on unsuspected shoals in the Fourteenth Amendment.”

Admittedly, I don’t agree with the vote-counting at the end of Stevens’s dissent (“It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”) After all, William “Plessy was right and should be reaffirmed” Rehnquist was on the Court then, and he’s always been at the forefront of tying to stand Brown on its head. But, otherwise, Stevens is right. Alas, on a Court dominated by Republicans the silly idea that as soon as a centuries-old caste system is formally disbanded formal equality is sufficient to provide real equality of opportunity will hold sway.

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