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.
Litwhwick’s depressing account of the oral arguments in Perry v. New Hampshire makes it pretty clear that the Supreme Court is disinclined to require any changes to how courts deal with eyewitness testimony despite extensive evidence that its unreliability is particularly likely to lead to miscarriages of justice:
In his rebuttal, Guerriero tries to explain again that the reason you want to take fallible eyewitness identifications away from the jury is precisely because eyewitness testimony is both powerful and wrong: “The witness’s sincerity has a powerful effect on the jury,” he explains. But it’s clear that this court will either dismiss or slide right past the old precedents that suggest that eyewitness evidence is uniquely dangerous. Oddly enough, the fact that other compelling evidence may prove equally untrustworthy seems to have immunized all the bad eyewitness evidence.
See also Liptak.
I have a piece up at Alternet about the myth of Robert Bork. Nocera’s representative whining notwithstanding, the defeat of Bork wasn’t unprecedented, it wasn’t obstructionist, it was justified, and it was crucial to maintaining fundamental constitutional rights. And there’s a reason why so many hacks just quote the Ted Kennedy speech without bothering to point out why it was wrong:
Nocera is typical in that he quotes Kennedy as if his comments were self-evidently dishonest, without bothering to cite anything in the speech that was factually wrong. This is understandable because everything in Kennedy’s speech was based on Bork’s public writings. Bork did write an article for the New Republic denouncing the Civil Rights Act as unconstitutional and “based on a principle of unsurpassed ugliness.” (Nor was Bork’s opposition to the Civil Rights Act purely an academic exercise; according to Rick Perlstein’s Before the Storm, Bork was instrumental in convincing Republican presidential candidate Barry Goldwater to oppose it.) Bork was a critic of the exclusionary rule – which prevents the state from profiting from illegal searches and hence inhibits them. He wrote a widely discussed article in 1971 that the free speech clauses of the First Amendment should “not cover scientific, educational, commercial or literary expressions as such.” He was a long-standing critic not only of Roe v. Wade but the right to privacy in general, and whether opponents of reproductive rights wish to acknowledge it or not bans on abortion lead to women getting maimed or killed by back-alley abortions.
The point about Roe is particularly crucial, because the Senate’s rejection of Bork saved Roe. In 1992, the Supreme Court re-affirmed Roe by a 5-4 vote, with Bork’s replacement Anthony Kennedy as the swing vote in the majority. Had Bork confirmed, abortion would be illegal in a significant number of states, and important extensions of the right to privacy to gays and lesbians would have been thwarted.
It’s also worth noting that Bork also believed that not only the landmark Afrcian-American disenfranchisement case Baker v. Carr but the housing discrimination case Shelley v. Kramer were wrongly decided. Bork, in other words, on civil rights was to the right of a unanimous Supreme Court from 1948. We’re supposed to see his defeat in 1987 as some massive outrage against human decency?
Part of what’s going on is the phenomenon Krugman recently discussed: allegedly the dirtiest political tactic there could ever be is to discuss the consequences of conservative policies. Apparently, one can only discuss motivations and assume that conservative motivations are pure as spring water. This went double for Bork, since the many ugly consequences of his views were allegedly just unintended consequences of Deeply Held Legal Principles. But the problem, as the Ackerman piece I discussed the other day makes very well, is that Bork’s “originalism” doesn’t even rise to the level of law-office history. He spent most of his academic career as a theory-driven law-and-economics libertarian, and made his late switch to “originalism” without developing any substantial depth of historical knowledge. The “originalism” in The Tempting of America consists almost entirely of question-begging and bare assertion that happens in virtually every case of ongoing controversy to line up with Republican policy preferences. The idea that it was beyond the pale to note the consequences of Bork’s confirmation was absurd then and it still is.
Looks like we’ll know by November 14th. Like Denniston, I think it’s overwhelmingly likely that it will.
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