Lithwick valiantly tries to explain what Newt was up to. In addition to the fact that he’s envisioning himself as president, I think it’s also a example of how a little history is a dangerous thing. Newt is very vain about his very modest intellectual achievements, and yes indeedy FDR did try to pack the courts and Jefferson did succeed in getting federal circuit courts abolished with Supreme Court approval.* But we may want to go a step further and inquire how these plans worked out, and whether established constitutional norms would still permit them.
In addition, of course, I’m sure Lithwick is right that Newt is trying to specifically pander to Iowa voters. But I think the instincts of his opponents are sounder on this one. Attacking individual “activist” judges is much more effective than attacking the judiciary as a whole. But, then, I think a couple years from now we’ll be looking back at the two or three weeks when Gingrch was actually taken seriously as a potential presidential nominee with puzzlement. (I can’t agree that his collapse is “ahead of schedule.” The only surprising thing is that the bubble ever inflated in the first place.)
*As we know now from private correspondence, the Marshall Court didn’t uphold the legislation abolishing circuit courts because they actually believed this was constitutional, but because it was that or be impeached. A good indication of how Marshall felt is that he recused himself. He didn’t recuse himself in Marbury v. Madison — although his failure to deliver the commission was what triggered the lawsuit. I should also note, in fairness to the Jeffersonians, that these particular circuit courts also involved taking advantage of an obvious defect in Our Perfect Constitution — allowing a lame duck Congress and president to make major institutional changes after losing an election. The remedy was problematic but they had legitimate reason to be angry.
I have a piece up at the Prospect about the attacks on the federal judiciary increasingly made by several Republican candidates, all of whom apparently have yet to be informed about the death of Earl Warren:
This returns us the question of why attacks on the federal courts have been so common in the Republican primary, when in fact the Rehnquist and Roberts Courts have largely been bonanzas for Republican interests. The four judges praised by most of the Republican candidates in the Iowa debate are not remotely deferential to the political branches. If there is any case that represents an “arrogant misreading” of the American public, it is the Citizens United decision. The public mood may have turned against corporate America, but the Roberts Court remains its best friend. And, of course, the same Republican candidates who have spent a great deal of time decrying “judicial activism” are also urging the Supreme Court to strike down the centerpiece legislation of Barack Obama’s first term on the basis of an extremely dubious legal argument….
Not only are many of the Republican attacks on the courts potentially dangerous; they also reflect a bizarre world in which Republican-dominated federal courts are seen as bastions of liberalism. As on so many other issues, wealthy, privileged Republicans have the remarkable ability to be permanently aggrieved no matter how much they’re winning.
The thing is is that, while Gingrich’s arguments are obviously unserious, I am actually not a big fan of judicial supremacy, and don’t think that all of the policy proposals being made by Republicans are unreasonable. I actively support non-renewable fixed terms of Supreme Court justices, and have no objection to a legislative override (although as a look across the northern border would make clear these changes would have much less of an effect on the institution of judicial review than the politicians making the proposals seem to understand.) Granted, I wouldn’t bring up Andrew “John Marshall has made his ruling, now let us proceed with ethnic cleansing” Jackson or Jefferson’s abolition of federal circuit courts as salutary examples, but I certainly don’t think that courts should have any kind of monopoly on constitutional interpretation. But what amazes me is that to listen to the Republican candidates you’d think it was still 1965.
I have to give Newt this one: Citizens United was indeed an arrogant misreading of the American people.
My takeaway from the debate segment on the courts is that every Republican candidate except Paul was cryogenically frozen in 1968, recently woke up, and have never been informed about the death of Earl Warren. Well, except Perry, who has never had any idea who Earl Warren is. I’m so old that I remember assertions that Bush v. Gore would end conservative lectures about “judicial activism”…
…shorter Mittens: I oppose discrimination against gays and lesbians, except when it comes to fundamental rights.
…Shorter Newt: I want to decrease abortion by radically increasing unplanned pregnancies.
And it’s far from clear to what’s going to happen. Thomas, ordinarily the staunchest states’ “rights” justice, is different in preemption. And elite Republicans don’t have monolithic views on immigration enforcement (in particular, you have to think that Kennedy might see auto executives getting detained in Alabama and think it might be time to put the brakes on.) But the Supreme Court always likes a chance to overrule the 9th Circuit and while Noonan — one of the 9CA justices who voted to strike the law — is a conservative his views on federalism are comparable to Breyer’s, so it doesn’t really tell us anything.
Another possibility I didn’t discuss in the Guardian piece is that the Supreme Court could follow the 9CA dissenter, who voted to uphold some but not all of the law. Carlos Bea would have struck down only the provision that would have made it a state crime not to carry papers and the clause that makes it illegal for an undocumented immigrant to seek work, while upholding the rest (including the crucial “show us your papers” arbitrary search provision.) I could see that appealing to Roberts in particular. But it’s hard to read the tea leaves on this one, particularly for such a potentially important case.
I have a piece up at the Prospect about the 6th Amendment case that was argued yesterday. Since Scalia and Thomas have taken pretty consistent civil libertarian positions on the Confrontation Clause, the swing votes in the case are actually Kagan and Sotomayor. I have some concerns based on Sotomayor’s 6th Amendment opinion from earlier this year:
One might think that the two precedents make Williams v. Illinois a slam-dunk, but there a couple of reasons to think that the Court might change course. As Tom Goldtsein at SCOTUS blog observes, Sotomayor’s concurrence in Bullcoming specifically argued that the issue presented in Williams was not before the Court, suggesting that she’s open to switching to the other side in the new case. In addition, another Confrontation Clause case handed down earlier this year suggests that a majority of the Court may be looking to retreat. Sotomayor wrote an opinion allowing hearsay evidence given by a victim who was in the process of dying of gunshot wounds to be admitted—something that the 6th Amendment would ordinarily forbid—because it was it was not “testimonial.” In a scathing dissent, Scalia wrote that the majority’s interpretation of the victim’s remarks was “so transparently false that professing to believe it demeans this institution” and that Sotomayor’s opinion was “short on the facts, and short on the law.” Scalia’s dissent was unkind and uncivil—but it wasn’t wrong.
It will be interesting to see how this one comes out.
Irin Carmon’s overview is extremely useful. The real threat under the current Supreme Court configuration isn’t so much the “personhood amendments” that clearly contravene Casey and aren’t popular even in anti-choice outliers, but incremental innovations like “fetal pain” laws that keep expanding the state’s role and pushing the line where abortions are easily available back. Of course, “fetal pain” laws that ban abortion after 18 weeks should also be unconstitutional under Casey, but it’s unlikely the current Court would agree. As one eminent scholar is quoted, “[t]he fetal pain thing is complete bullshit, but Kennedy has already proven that he doesn’t care what the evidence is.” For those who don’t understand the reference, I note this classic quote from his embarrassing-on-every-level opinion in Carhart II:
Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.
I particularly like the way the piece emphasizes the fact that the rationale for “centrist” abortion regulations collapses on itself. On the one hand, abortion “centrists” like to focus on regulating late-term abortions, but on the other hand they favor all kinds of arbitrary regulations that make pre-viability abortions much harder to obtain. It’s a nice racket — if you don’t actually care about the reproductive rights of women.
Although it’s sort of touching that they think governors and prosecutors will take scientific findings showing evidence to be unreliable into account if appellate courts can’t. The other salient fact about the case is Kagan joining the majority.
Michael Bailey and Forest Maltzman have a piece up at the Prospect arguing that the best political science modelling suggests that the Supreme Court will uphold the ACA. I don’t necessarily disagree with their conclusion, but I’m skeptical about some aspects of their specific argument. To summarize, 1)I don’t really buy the argument that Kennedy is particularly likely to feel constrained by precedent, and 2)even if I did since he can get around precedents by interpreting them the way a majority of Republican federal court appointees have interpreted them rather than the way Laurence Silberman interpreted them it’s moot. (In addition, we don’t know how Silberman would have ruled if he was on the Supreme Court; one problem with framing this as a conflict between “law” and “politics” is that it’s not bad legal practice for Supreme Court majorities to overrule or narrowly interpret their own precedents, even if one assumes arguendo that Wickard and Raich compel the upholding of the ACA.)
In this specific case, I actually think that straightforward, less sophisticated attitudinal measures tell us the most; Kennedy is more moderate than his Republican-appointed colleagues and is more likely to vote to uphold the ACA than they are, but there are enough competing imperatives that it’s impossible to predict his vote with any confidence. More complex strategic factors may well influence the final vote count and how the opinions are written, but I don’t think they will have much influence on the bottom-line outcome.
Simon Lazurus and Dahlia Lithwick note that as part of the 5 1/2 hours of oral argument the Supreme Court is holding over the constitutionality of the Affordable Care Act the Supreme Court will be entertaining an argument even more radical than the claim that the individual mandate exceeds the powers of Congress under the Commerce Clause. The Court will also be addressing the question of whether the expansion of Medicaid in the ACA is unconstitutional. The mechanism Congress used is a bog-standard one: the states have to agree to cover certain people in order to qualify for federal subsidies. Some states are arguing against this well-settled doctrine, arguing that the conditions attached to the subsidies are coercive and hence violate states’ rights.
It is hard to imagine that the Supreme Court will clearly overturn decades of precedent and restrict the power of the federal government so severely. In the landmark case in which the Supreme Court upheld the use of transportation funds to create a national
speed limit drinking age, Antonin Scalia (the only current member of the Court who participated) joined the majority, which was written by William Rehnquist. As Lazurus and Lithwick say, even the judges who held the mandate unconstitutional didn’t buy it. But at this point I wouldn’t be surprised by anything — maybe they want to make extra sure that Congress can’t pass the mythical broccoli mandate…
As Paul mentioned, as expected the Supreme Court will be hearing the case. Perhaps the most interesting thing is that the Court will be having a longer-than-usual argument about the severability issue alone. I think this should make clear that there is a very real chance that the Supreme Court will strike down at least part of the bill, and also that the possibility of striking down the whole bill is in play.
The stakes of this issue are huge — I believe you would have to go back to the New Deal to find a central part of the domestic agenda of a new President struck down so quickly. More thoughts on this tomorrow.
...typically valuable summary by Liptak.
According to Scalia the latest new “Dred Scott” is Kelo, a perfectly straightforward application of precedent perfectly consistent with the text of the Constitution. It seems worth noting at this point that 1)Roe v. Wade is very popular, 2)it will enter its fourth decade next year having been supported by the vast majority of Supreme Court justices to have hear the issue, and 3)Scalia’s view that the Constitution does not have an implicit protection of privacy rights is so popular that justices who share his view can only get confirmed to the Supreme Court if they dissemble about their views during confirmation hearings.
The punchline, of course, is the guy who not only joined Bush v. Gore but wrote the stay opinion in is willing to call other Supreme Court decisions “stretches beyond the Constitution” in public. For that matter, it’s amazing the guy who wrote the stay opinion in Bush v. Gore is even willing to show his face in public.
I’m about to take the worst kind of red-eye flight, i.e. the one that leaves at 6 so you don’t get any sleep but it’s morning when you land. But I will end up in Ireland,so even if it’s a mostly working trip no complaints! In the meantime, I have pieces about the latest Roberts Court opportunity to insure that nobody in the New Orleans DA’s office is held accountable for systematic evidence suppression and a piece about the constitutional implications of prison privatization for your reading pleasure.