Supreme Court Justice Antonin Scalia

Massachusetts Abortion Clinic Bubble Zone Law Struck Down

 

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Today a unanimous Supreme Court, in MCCULLEN ET AL. v. COAKLEY, ATTORNEY GENERAL OF MASSACHUSETTS, struck down the Massachusetts “Bubble Zone” law, keeping pro-life protestors  35 feet away from abortion clinics, as a violation of the First Amendment.  That is a good thing.  The bad thing is that it was authored by Chief Justice John Roberts, and I will let Justice Scalia explain what a limited victory for the pro-life cause this is, and what a disappointment it is that the Chief Justice wrote it.

 

JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS join, concurring in the judgment.

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion. See, e.g., Hill v. Colorado, 530 U.S. 703 (2000); Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994).

The second half of the Court’s analysis today, invalidating the law at issue because of inadequate “tailoring,” is certainly attractive to those of us who oppose an abortion-speech edition of the First Amendment . But think again. This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. That is the first half of the Court’s analysis, which concludes that a statute of this sort is not content based and hence not subject to so-called strict scrutiny. The Court reaches out to decide that question unnecessarily-or at least unnecessarily insofar as legal analysis is concerned.

I disagree with the Court’s dicta (Part III) and hence see no reason to opine on its holding (Part IV). →']);" class="more-link">Continue reading

Let’s Ignore That Pesky Constitution

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Louis Michael Seidman, a professor of Constitutional Law at Georgetown (surprise!), doesn’t think much of the Constitution as he explains in an op-ed in the New York Times:

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?       

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.       

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Of course we should still obey those parts of the Constitution that Professor Seidman likes:

This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.       

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.       

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text. ']);" class="more-link">Continue reading

The Majority Opinion that Became a Dissent

If you had told me before the day started that John Roberts and Anthony Kennedy would have penned differing opinions on the Obamacare case, and that I’d be siding with the latter’s opinion, I would have said that you were nuts. Alas, it appears that John Roberts is the new Anthony Kennedy.

Ed Whelan has speculated that Chief Justice Roberts changed his vote at the last minute, and therefore the dissenting opinion was originally the majority opinion. He has a follow-up post that posits another theory supporting that notion, which also explains how that could be logistically possible. Having now fully digested the dissenting opinion, I am just about 99 percent certain that John Roberts did indeed change his vote, and that the dissenting opinion was the majority opinion until the Chief Justice changed his mind.

Frankly, the dissent just doesn’t read like a dissent at all. As Whelan points out, the dissenting opinion repeatedly alludes to Justice Ginsburg’s opinion as the dissent. In fact, the dissenters barely alludes to the Chief Justice’s opinion at all until the very end. The final couple of pages are a scathing attack on the majority’s opinion, heretofore unmentioned. It certainly seems like the dissenting Justices felt jilted by the Chief Justice, thus the unusually harsh rhetoric of the final few paragraphs of the dissent. Another sign that the dissenters were in the majority comes on the second page: →']);" class="more-link">Continue reading

The Lemon Test Strikes Again!

 

Senior Federal District Judge Ronald Lagueux, a 1986 Reagan appointee, has ordered the Cranston High School in Cranston, Rhode Island to remove a mural, pictured above, depicting a school prayer.  The mural had been in the school since 1963.  The suit, as is usual in these modern iconoclastic cases, was brought by the American Civil Liberties Union on behalf of an atheist student and her father, Mark Ahlquist.  Jessica Ahlquist, the 16 year old atheist who brought the suit, has become an atheist celeb on atheist sites on the internet.  She doesn’t think much of the Catholic Church, is indeed a fallen away Catholic, and Cranston is 90% Catholic, so this suit was her way, actually I suspect more her father’s way, to poke a stick in the eye of local Catholics.  Go here to read the opinion.  Judge Lagueux’s decision is notable for its overall reliance on the Lemon test, and I will leave to Justice Scalia below to set forth my views of that court created doctrine.

In few areas of the law has the Constitution been more twisted and deformed than in the area of First Amendment allowance of religious expression in schools.  Justice Scalia gave a useful summary in 1993 in the Lamb’s Chapel v. Moriches Union Free School District case:

As to the Court’s invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening thelittle children and school attorneys of Center Moriches Union Free School District. ']);" class="more-link">Continue reading

Scalia on Natural Law

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I think Justice Scalia is right on target regarding his comments on the difficulty inherent in judges attempting to apply natural law in this country.  Natural law, as a legal concept to be used day to day by judges in the cases before them, only works if people are in agreement on basic morality.  Then a law writ by God on the hearts and minds of men and true for all times and true for all places is possible of discernment in application to particular cases.  Such a civilization Western Europe enjoyed from around 1000 AD to the time of the Reformation.  Our time bears little relationship to that period in history.  Now we live in a time of moral chaos, where even the right to life of an unborn child is denied by law.  In such a time of moral collapse, giving to judges the power to make determinations based on natural law is simply giving them the power to make it up as they go along, even more than they not infrequently do currently.  Bad enough results obtain when judges are supposedly bound by the text of written constitutions.  Give them a warrant to use something as vague and amorphous as natural law, and the results are completely predictable. →']);" class="more-link">Continue reading

The Right to Kill Your Kid

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Right you are Klavan on the Culture!  Abortion is a perfect example of the tranformation of a fairly low level debate state by state into a national issue that haunts the nation year after year.  As the Supreme Court succeeded so well in resolving the slavery question by the Dred Scott decision, so it has succeeded in resolving the abortion issue by the Roe v. Wade decsion.  Of course that is if “resolve” means “transform an issue into a nation wide fierce controversy that will never go away until it is resolved through other means than the courts”.

Justice Scalia put it well in his dissent in Planned Parenthood v. Casey (1992): →']);" class="more-link">Continue reading

Midterm Election Results Show The Tide Continues To Turn Toward Catholic Orthodoxy

While most political pundits mull over the stunning defeat the Democrats suffered in the 2010 midterm election (some 60 seats in the House and at least seven in the Senate,) most pundits, including Catholic pundits will not have noticed a striking phenomena.  Though practicing Catholics easily went for McCain-Palin in 2008, the entire Catholic vote went for the Obama-Biden ticket somewhere between five to eight percent. Yet, in 2010 we are told that Catholics voted over 60+% against candidates who supported the Obama agenda. I have yet to see a statistic for practicing Catholics, but we can assume it is much higher than 60%. This turnaround is unprecedented in the history of political polling. Though, I do believe the majority of this is the result of economics, we are seeing a fundamental shift among Catholics. Some Catholics have abandoned the Church (and their conscience) to secularism and to entertainment based mega churches, but many Catholics now see the wisdom of Catholic orthodoxy. After the momentous mid-term election results, what a relief it is to see an open practicing Catholic as the new Speaker of the House (John Boehner,) compared to the outgoing Speaker (Nancy Pelosi) who openly defied the Teachings of the Church and her archbishop.

However, the good news doesn’t just end with the incoming new speaker. There were some great Catholic victories and I will highlight two of them. Those Catholics who aren’t ashamed about the 2,000 year old teachings of the Church were rewarded with unabashedly Catholic politicians like Senator elect Pat Toomey in Pennsylvania and Congressman elect Sean Duffy in Wisconsin, both reliable blue states. Toomey has been a trooper for pro-life causes while Duffy and his wife Rachel Campos Duffy have been big advocates for traditional parenting. They have a growing family and have not been ashamed of standing out in a world that is often hostile to traditional religion. Both were MTV Real World partipants and Rachel was the last one cut from being on the View. One can only imagine her going toe to toe with the likes of Whoopi Goldberg and Joy Behar (probably why she wasn’t picked.)

After the liberal perfect storm victory of 2008, I found myself on the receiving end of those who said Catholic orthodoxy, and or the conservative Catholic lifestyle was going the way of the horse and buggy. However, the hangover of liberal Big Government and the moral decay that goes along with those who think every lifestyle, feeling, whim, or urge needs to be embraced has aided many Catholics to see the wisdom of the two thousand year old teachings of the Catholic Church. In addition, I am sure hearing the latest rants of Keith Olbermann and Rachel Maddow, along with reading the latest screeds against Catholic orthodoxy from the likes of Catholics like outgoing Speaker Nancy Pelosi and columnists Maureen Dowd and E J Dionne has helped many see the light.

The plummeting poll numbers of liberals coupled with a few announcements from the Holy See must have made for an eternity for the left, primarily the Catholic left. In those days leading up to election day, Pope Benedict XVI gave an address on the plight of migrants and illegal aliens. The Holy Father spoke of the compassion one must have for those on the run, but he clearly stated that nations have the right to defend their borders and accept the integrity of their nation state. This was certainly a blow to those on the Catholic left, including some clergy and even a few prelates who seemed to favor unlimited immigration.

The finishing blow for the Catholic Left occurred when it was announced that Archbishop Raymond Burke formerly of St Louis and now head of the Vatican Court was going to be made a Cardinal. If that wasn’t bad enough, Cardinal Elect Burke made one of his patented unflinching addresses on the grave sin of those Catholics who vote for politicians that support abortion and same sex marriage. It was also announced that Archbishop Donald Wuerl of Washington DC was also to be named a Cardinal. Though friends with Cardinal Elect Burke, the two have sparred over whether Catholic politicians should be banned from receiving Holy Communion, something Cardinal Elect Wuerl is against. Cardinal Elect Burke has stated that the arguments used by his brother Cardinal Elect Wuerl and others, that state banning pro abortion politicians from receiving the Eucharist would politicize the sacrament and there is still much teaching to be done on the subject, are “nonsense.”   →']);" class="more-link">Continue reading

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