In a Swiftian proposal at The Week, Michael Brendan Dougherty suggests a punishment for Kim Davis, currently released by the Federal Judge who jailed her due to her deputies issuing licenses to gays to marriage, something Kim Davis has vowed to halt:
The Supreme Court had to know it would come to this. It had to know that in taking away the authority of states and the people to define marriage as a conjugal union, some force would be necessary to compel obedience.
A conflict about religious liberty and the authority of the state was bound to happen around marriage issues, just as it did nearly five centuries ago during the Reformation. Whatever we say about the separation of church and state, marriage is an institution that acts as a bridge between them. Religious institutions define the moral purpose and eligibility for marriage, while the state used juridical power to guarantee that stability of the institution.
So it’s not a surprise that Justice Kennedy’s opinion in Obergefell v. Hodges, which redefined marriage nationwide to include same-sex couples, reads more like a religious confession than a legal opinion. Instead of concerning itself with merely the legal consequences of marriage, it reaches outward to commend people to its “transcendent purposes” and “highest meaning.” It projected backward the true meaning of the 14th Amendment based on developments in psychology a century later, just the way religious scholars read Old Testament prophecies in light of the new. It offered miraculous contradictions of the evidence of our eyes by saying that legal developments in recent centuries represent new insights, and “[t]hese new insights have strengthened, not weakened, the institution of marriage.” It also offered an incorrect story of the entire history of the institution:
For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman.
It also, like a 13th century papal bull, constricted the rights of non-conformists, when it assured religious believers that they may “advocate” for their beliefs and believe them, just not act on them and exercise them in the public square.
Kennedy’s decision is only the latest in a long series of decisions in which the state progressively usurps the role of religion in defining the eligibility of individuals, moral purpose, eschatological meaning, and “transcendent purpose” for the institution of marriage. Notice even the subtle way the Griswold decision evokes but revises marriage indissolubility. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” (Emphasis mine.) Davis’ protest, however confused about the legal consequences it risks, is properly understood as a religious one.
So let me suggest, modestly, that instead of the National Guard or a jail cell, she should be handed a more properly religious punishment, one that honors America’s evolving understanding of the separation of church and state. Before the sentence for contempt was handed down, Brian Beutler wrote in The New Republic that “she should be put behind bars until she relents one way or another.”
Any attempt to force her hand risks making her a bigger martyr on the religious right than she already is, but that risk is small compared to the risk that allowing her to continue abusing her power without consequence will create a terrible precedent. There are surely other religious clerks in the South and elsewhere who’d love to get away with discriminating against gays and lesbians, in defiance of the country’s highest court. [The New Republic]
What Beutler advocates here is making of Davis a “fearful example,” often used to compel conformity in doctrine. He’s after people’s hearts, hoping to change those who would dissent. But he doesn’t go far enough.
True, no GoFundMe campaign can restore days of life lost in a jail cell. But Davis has already indicated that jail is nothing to her compared to serving God. She’s just sitting there with the approval of her conscience!
And besides, many think that putting Davis in jail risks exciting sympathy for her and a viral donation campaign that will ultimately reward her for her intransigence. The conclusion is obvious.
Any normal punishment rewards her with the comfort of solidarity from right-wing Christians, or her own sense of moral self-approval. Therefore the only way to avoid granting her such “martyrdom” is to actually martyr her. That’s the really perverse thing about Christians who make a spectacle like this. The only way the state can really punish them is to inform them that their suffering is meaningless and proving that God doesn’t exist by sending them to the darkness of oblivion in torment. Justice Kennedy has issued his theological bull; let Kentucky officials in defiance of it be put on a pyre. Continue reading
Some quotes from Abraham Lincoln in how to react to illegitimate Supreme Court decisions. An illegitimate decision is one in which the Court arrogates to itself the power of a legislature under the mendacious guise of merely interpreting the Constitution:
1. I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit; as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government.
2. Judicial decisions have two uses-first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called “precedents” and “authorities.”
3. We think its (the Supreme Court) decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution.
4. At the same time, the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
5. Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession. Continue reading
Is winter over yet? Supposedly we’re getting somewhere between a centimeter and a foot of snow tomorrow.
– Today the Supreme Court heard oral arguments in King v. Burwell, the Obamacare subsidy case. It looks like Anthony Kennedy stuck his finger in the air and it was blowing the government’s direction today. We’ll see if the Court determines that words do, in fact, mean things.
– Stop the presses, David Brock was spinning on behalf of Hillary Clinton. His performance on MSDNC this morning was so outlandish that even co-host Mika Brzezinski was forced to sigh, ““Oh my God. I’m not sure what planet I’m on right now,” in response to one of Brock’s evasions. To paraphrase one of the commenters at NRO, when Miza Brzezinski is the voice of reason, oofta.
Looks like Brock’s gonna have his interns working double tonight to produce another 17-page document that is largely a giant tu quoque argument.
– Michele Obama’s attempts to brainwash our kids by feeding them tasteless junk is well underway. I cringe when I read things like this:
Under the complex “Healthy, Hunger-Free Kids Act” legislation, which has long been a signature issue for the first lady, participating schools take federal money but must stringently limit the number of calories and the amount of sugar, fat and sodium in every morsel of food sold at schools. Also, in what presumably falls outside the hunger-free aspect of the act, there are calorie caps.
A Maryland lawmaker is also pushing legislation that would require fast food restaurants to offer water, 100% pure juice, and low fat milk as the default beverage option for kids’ meals instead of water.
You know I don’t necessarily have a problem with the idea of government promoting healthy nutrition. What I do take issue with is them issuing mandates based on outmoded and discredited nutrition concepts. Evidently the only way children are eating healthy enough for the government is by eating tasteless vegetables and low-calorie foodstuffs.
Now, I’m fortunate enough to have children who actually like eating vegetables. I also try to prepare said vegetables in a manner that will make them more prone to eating them. If you have to add a little fat to the veggies to make them a bit tastier, so be it. There’s also no need to force feed them stuff when they might prefer other foods that have high nutritional value.
– Four lessons from the fourth season of Downton Abbey. Not sure I completely agree with all of the interpretations, but certainly some interesting food for thought.
At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
Abraham Lincoln, First Inaugural Address
God bless the Federal judiciary! After having such a smashing success in “resolving” the abortion issue by legalizing it, they have “resolved” the gay marriage debate by mandating it. Senator Ted Cruz (R.Tx.) is having none of it:
The Supreme Court’s decision to let rulings by lower court judges stand that redefine marriage is both tragic and indefensible. By refusing to rule if the States can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution. The fact that the Supreme Court Justices, without providing any explanation whatsoever, have permitted lower courts to strike down so many state marriage laws is astonishing.
This is judicial activism at its worst. The Constitution entrusts state legislatures, elected by the People, to define marriage consistent with the values and mores of their citizens. Unelected judges should not be imposing their policy preferences to subvert the considered judgments of democratically elected legislatures.
The Supreme Court is, de facto, applying an extremely broad interpretation to the 14th Amendment without saying a word – an action that is likely to have far-reaching consequences. Because of the Court’s decision today, 11 States will likely now be forced to legalize same-sex marriage: Virginia, Indiana, Wisconsin, Oklahoma, Utah, North Carolina, South Carolina, West Virginia, Kansas, Colorado, and Wyoming. And this action paves the way for laws prohibiting same-sex marriage to be overturned in any state.
It is beyond dispute that when the 14th Amendment was adopted 146 years ago, as a necessary post-Civil War era reform, it was not imagined to also mandate same-sex marriage, but that is what the Supreme Court is implying today. The Court is making the preposterous assumption that the People of the United States somehow silently redefined marriage in 1868 when they ratified the 14th Amendment.
Nothing in the text, logic, structure, or original understanding of the 14th Amendment or any other constitutional provision authorizes judges to redefine marriage for the Nation. It is for the elected representatives of the People to make the laws of marriage, acting on the basis of their own constitutional authority, and protecting it, if necessary, from usurpation by the courts.
Marriage is a question for the States. That is why I have introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage. And that is why, when Congress returns to session, I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws.
Traditional marriage is an institution whose integrity and vitality are critical to the health of any society. We should remain faithful to our moral heritage and never hesitate to defend it. Continue reading
I want to be excited about the Supreme Court’s ruling in favor of Hobby Lobby and against the blatantly illegal and unjust HHS contraception mandate. But as I said back in March, writing for Crisis:
[In the event of a Hobby Lobby win] my celebration will be muted and limited, however, because a legal victory will not address the underlying philosophical and cultural divide that brought this case before the court to begin with. Contrary to what some may believe, law is not the foundation upon which society rests; it is rather the adhesive we use to patch up broken pieces of society. The more laws, precedents, mandates, rulings and decisions we require to defend our basic interests and assert our rights, the greater indication we have of a society that is almost literally tearing itself apart.
I’m not alone in this. James C. Capretta writes in The National Review:
But even in victory, it is hard to avoid the sinking feeling that having to fight at all over this issue is something of a defeat.
That’s because the HHS mandate was always a politically contrived issue without real legitimacy…
What’s most discouraging is that millions of American voters really seemed to buy it. The absurdity of the “war on women” claim has not undermined its potency. Unfortunately, the Hobby Lobby decision, welcome and necessary as it is, ensures that the “war on women” flag will be waved incessantly in the run-up to the 2014 midterm election. The GOP will need to do a far better job this time around in framing the issue and making it clear that what the Obama administration wants is not access to contraceptives but victory in a pointless ideological crusade.
And Ross Kaminsky at The American Spectator writes:
Although the Court got it right, conservatives and libertarians alike — namely any American who understands the primacy of our Founding principles over the utilitarian approach of statists — have an uphill battle on our hands when it comes to the population overall…
Until “hearts and minds” are changed so that Court decisions such as Hobby Lobby are heralded not only as correct, but as obviously so, these small victories mean little in the longer war against a determined and patient foe.
I was fairly certain from the beginning that the Court would rule in favor of Hobby Lobby. But the reason Hobby Lobby prevailed was because the administration failed to consider the possibility of simply paying for these contraceptives itself, i.e. with our tax dollars. Though I understand that in the context of case law and precedents, there is a significant distinction between compelling direct payment/participation and simply collecting taxes, in practice it amounts to the same thing. One way or another, we will all have our pockets picked to serve the federal government’s ideological agenda.
I was prepared for the hysteria and mass psychosis of the left and the radical feminists as well. From the moment it was announced and conservatives pointed out the slam-dunk case against it, proponents of the mandate have engaged in one of the most dishonest and demented propaganda campaigns in modern history. That they would now threaten violence with impunity is not surprising either. We live in two different philosophical, moral, and semantic universes. Between them exists a chasm which rational argument cannot cross. To even engage the mindless arguments against the ruling would be beneath any of us. Ginsberg’s dissent may be worth deconstructing, but I will leave that to people with more time (besides, I think Alito and, I never thought I’d say this, Kennedy did a fine job addressing her directly in their opinions).
The enemies of the Constitution, the 1st amendment and Christianity in this country have been handed a victory even in defeat, a banner around which to rally and reinforce their collective delusions. Against this insanity, which will be used against the tottering remnants of our republic and our churches like a battering ram, sober and reasoned discourse will not stand. Our enemies are not interested in it. They do not want it, any more than the Jacobins or the Bolsheviks wanted it. They want our heads on pikes and our hearts on platters, they want to write our epitaphs in blood and erase our memory from the Earth. If you don’t believe me, check out some of the reactions for yourself.
I rarely read Hot Air much these days, though it is fortunate that I decided to take a look this afternoon or else I would have missed this insightful post from Ed Morrissey, as he absolutely nails it on two distinct issues.
First off, Morrissey calls out the Democrats for their attempt to amend the first amendment. Senator Tom Udall from New Mexico has introduced an amendment inspired by recent Supreme Court decisions that curtailed certain campaign finance restrictions. Morrissey notes that not only does this amendment not have a prayer of getting anywhere near the two-thirds vote required, it’s simply not something that very many Americans are clamoring for.
If Democrats think this will allow them to ride a wave of Occupy Wall Street populism, they’d better look again at the polling this week. Despite spending weeks on the Senate Floor ranting about the Koch Brothers, Harry Reid’s McCarthyite campaign of Kochsteria has resulted in … almost nothing. In the NBC/WSJ poll linked earlier, only 31% had an opinion about the Koch Brothers at all, and only 21% thought of them negatively in a poll where 43% of the respondents admit to voting for Obama in 2012. Michael Bloomberg, one of the left’s multibillionaire activists, got a 26% negative score, and the Democratic Party got a 37% negative score. (The GOP got 44%.) Nearly twice as many respondents think of Barack Obama negatively than they do the Koch Brothers, despite weeks of hard-sell demonization from top Democratic Party leaders.
Well, the Democrats are trying just about everything to prevent the electoral thumping that they will undoubtedly receive this Fall, and this is just one more act of desperation that will have absolutely no impact whatsoever. But at least it lets us know the truth about what they think of the first amendment.
But I’m even more impressed with Morrissey’s final paragraph, as he brings up a Supreme Court case that I’ve long contended was the impetus for all of the craziness that the federal government has spewed forth over the past seven decades.
If Democrats (and Republicans) want to act seriously to take billionaires out of the political game, they’re aiming at the wrong Supreme Court decision. They should pass an amendment repealing Wickard v Filburn‘s impact on the interstate commerce clause. That decision shifted massive political power from the states to Washington DC by defining practically everything as interstate commerce — including non-commerce. Killing Wickard would shift most regulatory power back to the states, and take the corruption out of Washington DC as the stakes would become too small for billionaire investment. Don’t expect Senate Democrats to do anything meaningful on crony capitalism, though … or anything meaningful at all, if this stunt is all they have.
Other than Roe v. Wade and Casey v. Planned Parenthood, Wickard stands out as the absolute worst decision in the history of the Court. As Ed points out, it essentially allowed the federal government to intervene in every nook and cranny of our lives under the justification of “interstate commerce,” even where the action under consideration was neither interstate or commerce.
Ed’s also correct in noting that this expansion of the federal government is the prime reason that so much money is being pumped into federal elections, lobbying, and other activities. Last week I heard Russell Simmons spouting about how all of the evils of our world are due to the corrupting influence of money, and that’s why he supported Occupy Wall Street. Yet Simmons and his ilk are the very ones seeking to augment the powers of the federal government. They don’t see the inherent contradiction in this approach. As the federal government grows and grows and grows, it only increases the avenues for monied interests to wield their influence. It is the massive expansion of the federal government that has inspired this massive spending by outside groups. Of course interested stakeholders are going to want to influence the federal government in areas that affect them. The solution to diminishing their influence is not in curtailing the first amendment, but in restoring the balance of power between the states and the federal government. The Koch brothers (and George Soros for that matter) will immediately lose interest in spreading their wealth around to hammer away at the federal government if the federal government would simply get out of everyone’s business.
Like that will ever happen.
I was going to provide an analysis of both of the Supreme Court decisions today related to gay marriage, but instead I will focus on Hollingsworth v. Perry, which was concerned with California’s Prop 8. But first a couple of thoughts about US v. Windsor, the DOMA case. The immediate short-term impact of the case is somewhat limited in scope. Federal benefits will be conferred upon same-sex couples who live in states that recognize their partnership as marriage. The long-term impact, however, is much starker, as will be explained in a moment.
Both Justices Alito and Scalia provide blistering dissents, and they should be read in full. They disagree on a technical though not insignificant point about the standing of the Bipartisan Legal Advisory Group, or BLAG (and for the record, I tend to side with Alito). First of all, Scalia properly notes that, despite the rhetoric in Kennedy’s opinion, this was not a federalism case, or at least the case was not decided on federalism grounds. In fact, contrary to exhortations of some so-called libertarians on twitter, this case has the ultimate effect of further eroding states’ rights regarding same-sex marriage. Had this case been decided on federalism (10th amendment) grounds, then the outcome would have been possibly justifiable. But the majority’s reliance on 5th and 14th amendment concerns – effectively relying on the absurd legal doctrine of substantive due process – runs completely counter to the federalism argument, and paves the way for future challenges to state laws that prohibit same-sex marriage.
Justice Scalia recognizes this farce for what it is, and reminds the public of the exchange between these two very same Justices ten years ago to the date in Lawrence v. Texas. Then Justice Kennedy assured us all that striking down anti-sodomy laws would not eventually be used as a rationale for upending traditional marriage, and Scalia scoffed at him in the dissent. Well, guess who’s looking prophetic now. Even left-wing pundit David Corn (gleefully, this case) acknowledges Scalia’s prescience. Kennedy, backed up by the obtuse Chief Justice, assures us that nothing in this decision interferes with state decision-making on marriage. Once again Scalia scoffs, and, sadly, at some point in the future he will no doubt be proven right.
As for the Prop 8 case: my what a tangled web. I have been defending Chief Justice Roberts’s decision (joined, I may remind you, by Antonin Scalia along with three of the Court’s leftists) on the grounds that had the case been decided on the merits, it is quite possible that the same 5-4 majority in Windsor would have held Prop 8 to be unconstitutional, and this would have been the Roe v. Wade of gay marriage. Now, I’m not so sure.
Admittedly, I am somewhat conflicted on the ruling on standing. The majority concludes that the petitioners did not have standing because they were not official delegates of the state, and they did not experience any harm due to the appellate court’s ruling decreeing Prop 8 to be unconstitutional. From a certain point of view, this is a perfectly acceptable legal holding. Scalia made a very good case in his Windsor dissent for a blanket denial of standing to all non-state petitioners in such cases. Scalia is acting fairly consistently, thus that explains why he voted with the majority here.
That said, the Chief Justice’s opinion is very worrisome, and not just from the standpoint of traditional marriage. As Justice Kennedy (!) explained in his dissent (joined in totality by Thomas, Alito, and Sotomayor), the petitioners here do, in effect, represent the state. In fact the state constitution all but says that when it comes to ballot initiatives, ordinary citizens are agents of the state. I would go a step further and suggest that Roberts offers up a very constrained view of who the state is. According to his logic, the “state” is nothing more than the Chief Executive and the bureaucracy. From a technical legal standpoint this is fine, but the very point of a ballot initiative is to bypass state officials whom the citizenry at large have decided are not acting in their best interests. I have written before about my concerns (to put it mildly) regarding ballot initiatives, but it is illogical to deny that the ballot initiative process changes the normal dynamics of who has legal standing.
The Chief suggests on page 8 of his opinion that once the proposition was approved and enacted, that petitioners no longer had a role in enactment. But if the executive branch of the government refuses to defend the amendment or statute, that leaves the citizens with no legal recourse.
The petitioners relied on the case of Karcher v. May to argue that they indeed had standing, but Chief Roberts denied that the the ruling there was applicable.
Far from supporting petitioners’ standing, however, Karcher is compelling precedent against it. The legislators in that case intervened in their official capacities as Speaker and President of the legislature. No one doubts that a State has a cognizable interest “in the continued enforceability” of its laws that is harmed by a judicial decision declaring a state law unconstitutional. Maine v. Taylor, 477 U. S. 131, 137 (1986). To vindicate that interest or any other, a State must be able to designate agents to represent it in federal court.
But in a case revolving around a ballot initiative, haven’t the voters themselves become, in essence, the equivalent of legislators?
Roberts’s reticence to grant standing in this case is understandable, and I can see why Scalia would join the majority. In his Windsor defense, Scalia admirably rails against the idea of an omnipotent judiciary that decrees on all constitutional issues just because it wants to. An overly broad interpretation of who has standing empowers the judiciary. But I think this is a rare case in which judicial deference actually damages the workings of the republican process. For good or ill, Californians have favored a much more directly democratic system, and the Court’s majority fails to factor that into its decision-making. By denying standing to the petitioners, the Court has said that citizens have no real redress should state executives defy their expressed wishes.
Which leads me back to my uncertainty over the rationale over the votes cast in these two cases. I’m in the odd position where I disagree with the person who I think has the cleaner motive, but agree with the person whose motives are perhaps suspect. I have no doubt that if this case had been decided on the merits, Chief Justice Roberts would have voted to uphold Prop 8, while I’m not so certain about Kennedy. Scalia acted consistently with his overall principles, as did Alito (who would have granted standing to BLAG). Thomas offered no opinion in either case, but I suspect his reasoning would be similar to that of Alito, and so he acted consistently on the standing question as did, quite frankly, Sonia Sotomayor. As for the Court’s three other left-wingers – well, they did what they always did and just voted for the right (in their minds) outcome, reasoning be damned.
No matter the rationale for Roberts’s decision, it has ill portents. If Roberts acted strategically, then he abdicated his responsibility to be an impartial arbiter of the law. If he acted earnestly, well, he was simply wrong. More importantly, we’re stuck in a situation where the actual wishes of a democratic majority are trivial concerns compared to the desires of a handful of unelected judges. No matter how they voted today, this is simply untenable, and there is no end to this judicial tyranny in sight.
Both were 5-4 decisions. Kennedy delivered the opinion of the Court on DOMA, Roberts on Prop 8. The lineups were slightly different. The dissenters on DOMA were Roberts, Alito, Scalia, and Thomas, and on Prop 8 Kennedy, Thomas, Alito, and . . . Sotomayor. Prop 8 fell because of standing and not on the merits of the legal issue, so the Court lineup actually doesn’t say much on that one. Of course the end result is that California will now recognize same-sex marriage.
I’ll be back much later with a full analysis. What the Windsor (DOMA) case means is that the federal government cannot prohibit states from recognizing same-sex marriage, and those married in states allowing SSM must receive federal benefits. States are still free to not recognize same-sex marriage, but Kennedy’ s use of the Equal Protection Clause to underpin his argument means that the handwriting is on the wall. Scalia’s dissent is a must-read, but Alito’s is perhaps more significant – particularly footnote 7.
In the meantime, here’s some happy reading for you to ponder for the rest of the day.
Update: I think my explanation of the DOMA decision’s results is a little shaky. This was never about what the states could do, but it simply relates to granting federal benefits to same sex couples who claim to be married.
This is, in a sense, a two-part post. The first part examines the decision handed down by the Court in Shelby v. Holder, and the second looks at the hysterical over-reaction.
The decision itself is fairly restrained. In a 5-4 decision, with Chief Justice Roberts delivering the opinion of the Court, the Court ruled as unconstitutional Section 4 of the Voting Rights Act of 1965. Actually, it really just ruled that Congress’s application of a 48-year old formula for determining which states and counties had to seek clearance from the federal government for any changes in its voting laws was lo longer justified. States subject to pre-clearance were those states which had poll tests and other restrictive measures in place at the time of the law’s enactment, and which also had enormous gaps in white versus black voter participation. This formula has remained unchanged for nearly half a century.
As the Chief explained in the ruling, the Court permitted a very wide abrogation of state authority in its decision upholding the Voting Rights Act (Katzenbach v. Morgan). The Court permitted what it termed “an uncommon exercise of Congressional power” due to “exceptional conditions.” As the Chief further explained, those exceptional conditions no longer applied, and indeed in those states and counties subject to pre-clearance there has been increased racial parity in terms of registration and participation. In fact, if one were to construct a list of states that should be subject to pre-clearance based on disparities in voter participation, there would be more justification in including Massachusetts instead of, say, South Carolina.
Justice Ginsburg in her dissent quips, “In the Court’s view, the very success of Section 5 of the Voting Rights Act demands its dormancy.” By the standards established by the dissenters, the formula established in Section 4 could never be deemed unconstitutional. Further, as Chief Justice Roberts says in his opinion:
The dissent treats the Act as if it were just like any other piece of legislation, but this Court has made clear from the beginning that the Voting Rights Act is far from ordinary. At the risk of repetition, Katzenbach indicated that the Act was “uncommon” and “not otherwise appropriate,” but was justified by “exceptional” and “unique” conditions. 383 U. S., at 334, 335. Multiple decisions since have reaffirmed the Act’s “extraordinary” nature. See, e.g., Northwest Austin, supra, at 211. Yet the dissent goes so far as to suggest instead that the preclearance requirement and disparate treatment of the States should be upheld into the future “unless there [is] no or almost no evidence of unconstitutional action by States.”
Ultimately, the decision is of somewhat limited scope:
Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U. S., at 500–501. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.
Of course this hasn’t stopped the left from completely over-reacting. A post on the Corner compiled the most over-the-top reactions. Melissa Harris-Perry’s tweet of “Damn, that citizenship thing was so great for awhile,” certainly was cute, but no one is touching Minnesota state rep. Ryan Winkler, who tweeted, “SCOTUS VRA majority is four accomplices to race discrimination and one Uncle Thomas. Marriage decision may blur Court’s backsliding.” Winkler soon deleted that tweet, and followed up with this whopper:
@atrupar I did not understand “Uncle Tom” as a racist term, and there seems to be some debate about it. I do apologize for it, however.
— Ryan Winkler (@RepRyanWinkler) June 25, 2013
It’s difficult to determine the most disgusting part of this exchange. Either Winkler is historically illiterate or a liar, though of course nothing necessarily precludes both being true. What’s worse, this white legislator from one of the whitest states in the Union seems to think he knows better than a black man raised in the South about how to deal with racial prejudice. Moreover, whitey has declared himself the judge of authentic blackness. Charming.
Finally, and I realize this is something of a nitpick, but the very term “Uncle Tom” is offensive not just because it carries with it the implicit notion that all African-Americans must think and act a certain way, but because the term itself is based on a character in a historical novel who was the opposite of what the term is meant to imply. I have a feeling that no one who has ever used the phrase has actually read the novel Uncle Tom’s Cabin, because if they had they would have a hard time justifying referring to the character as a race traitor. Then again, we live in a world where Al Sharpton is given legitimacy as a political analyst on a cable news network, so perhaps I underestimate the stupidity of large swathes of the American public.
If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended. If the Constitution is law, then presumably, like all other law, the meaning the lawmakers intended is as binding upon judges as it is upon legislatures and executives. There is no other sense in which the Constitution can be what article VI proclaims it to be: “Law….” This means, of course, that a judge, no matter on what court he sits, may never create new
constitutional rights or destroy old ones. Any time he does so, he violates not
only the limits to his own authority but, and for that reason, also violates the
rights of the legislature and the people….the philosophy of original understanding is thus a necessary inference from the structure of government apparent on the face of the Constitution.
Robert Bork, one of the titans of American Law, has died. The foremost expert on anti-trust, and a champion of originalism in regard to the Constitution, Bork was appointed by President Reagan to the United States Court of Appeals for the District of Columbia. In 1987 he was nominated by Reagan for the Supreme Court. In a campaign of lies and personal vilification spearheaded, fittingly enough, by Senator Edward M. Kennedy his nomination was defeated. If he had been confirmed, Roe v. Wade would now be merely a bitter memory. Continue reading
At the Bench Memos blog at National Review, Mathew Franck linked to a rather hysterical screed written by Marie Griffith. The object of Griffith’s scorn: the annual Red Mass that takes place at St. Matthew’s Cathedral in Washington, DC before the opening of the Supreme Court term. Griffith is not at all pleased that two-thirds of the Supreme Court attended the latest Red Mass a couple of weeks ago.
Last Sunday, September 30, witnessed one of the most vivid and, to many (emphasis mine), disturbing examples of this religion/politics paradox.
Right out of the gate we get some good old-fashioned intellectual dishonesty. Who are the “many” that are disturbed by this visual? I would wager that the overwhelming majority of people have no idea that this Mass even exists, and that a scant few who are aware of its existence are very bothered by it. Rather than taking ownership of an opinion and writing that she is offended by the Red Mass, Griffith assigns a feeling to a mythical many. It’s a passive aggressive trick employed when a writer either lacks the guts to openly state their feelings, or when they want to conjure up support for an opinion that is not wildly shared by actual open beings.
She continues: Continue reading
Chief Justice John Roberts’ recent decision upholding the Affordable Care Act, as well as his vote to overturn much of Arizona’s illegal immigration law, has made conservatives think that yet again a Republican president was bamboozled. Personally I think it’s a bit early to completely write off the Chief Justice. For most of his tenure he’s been a fairly reliable conservative vote, and there is still much time (presumably) before he retires. Then we will be better able to assess his legacy.
It did get me thinking, though. What are the worst Supreme Court selections in history? I’m looking at this question in terms of the president doing the selecting. Someone like Ruth Bader Ginsburg, a doctrinaire liberal, wouldn’t make the cut because no doubt she has voted in much the way Bill Clinton would have wished when he picked her. Similarly, I do not include someone like John Paul Stevens. Though over time he veered much further to the left than Gerald Ford or his Attorney General , Edward Levi (who basically made the selection) could have anticipated, Stevens’ jurisprudence was not that radically removed from Ford’s own preferences. In fact, Ford wrote of Stevens:
For I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination thrity years ago of Justice John Paul Stevens to the U.S. Supreme Court. I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case and on the constitution’s broad grant of regulatory authority to Congress. I include as well my special admiration for his charming wit and sense of humor; as evidence in his dissent in the 1986 commerce clause case of Maine v. Taylorand United States, involving the constitutionality of a Maine statute that broadly restricted any interstate trade of Maine’s minnows. In words perhaps somewhat less memorable then, “Shouting fire in a crowded theater,” Justice Stevens wrote, “There is something fishy about this case.”
He has served his nation well, at all times carrying out his judicial duties with dignity, intellect and without partisan political concerns. Justice Stevens has made me, and our fellow citizens, proud of my three decade old decision to appoint him to the Supreme Court. I wish him long life, good health and many more years on the bench.
Well, if Ford was willing to base his legacy on his choice of John Paul Stevens, then I’m happy to call Gerald Ford a miserable failure.
This, then, is a list of the biggest mistakes in Supreme Court selection. Continue reading
As bad as yesterday’s Supreme Court decision was, it doesn’t hold a candle to one handed down twenty years ago today. On this date in 1992, the Court decided the case of Casey v. Planned Parenthood. People might be disappointed with John Roberts right now, but the fury at Justices O’Connor and Kennedy, and to a lesser extent Souter, after they voted to uphold Roe v. Wade dwarfs that.
Ed Whelan links to post by Michael Stokes Paulsen in which he calls Casey the worst Supreme Court decision of all-time. Part one is here, and part two is here. I wholeheartedly agree. I also ranked Casey as the worst when compiling my list of the worst decisions of all-time. Sure, there have been several atrocious decisions handed down by the Court, and Paulsen highlights some of the worst defenders in part one. But what makes Casey so egregious is the combination of the sheer awfulness of the decision from a constitutional perspective, as well as the devastating real world impacts it had.
Paulsen details all that is wrong with the decision. The plurality opinion relied on stare decisis to reach its conclusion, treating the doctrine as though it were sacrosanct. If you listened to the plurality you would come to the conclusion that Court had never struck down a decision it considered to be wrongly decided. What’s more, the plurality opinion is simply a mess of contorted logic, rightfully mocked by Scalia in his brilliant dissent. Most damning, it ensured the continued legal protection of abortion, dooming millions more unborn children to their premature death.
I’ll leave you to read both articles in their entirety.
Roe v. Wade may have made abortion legal in all 50 states, but Casey entrenched that decision. Worse still, it did so in a way that made the Roe majority opinion seem like a masterwork of originalist logic by comparison.
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: Continue reading
Conservatives looking for some kind of victory in today’s decision in National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al. (the Obamacare case) are pointing to two aspects of Chief Justice John Roberts’s rulings. First, a majority of the Court ruled that the individual mandate was unconstitutional under the commerce clause. Second, the Court ruled that the Federal Government could not force the states to expand Medicaid coverage under the Affordable Care Act. Therefore, the Court narrowed the scope of Congressional power in two different arenas.
Indeed, 44 pages of Chief Justice Roberts’ opinion are absolutely constitutionally sound. During the course of the opinion the Chief Justice made the same argument that many individual mandate opponents have been making for months: you cannot create an economic activity in order to regulate it under the commerce clause. “The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to ‘regulate’ something included the power to create it, many of the provisions in the Constitution would be superfluous.” The Chief Justice latter adds that the individual mandate “does not regulate an existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.” Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.” Furthermore, “[a]llowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and – under the Government’s theory – empower Congress to make those decisions for him.”
Roberts further tears into the logic of those defending the mandate on commerce clause grounds by pointing out that other activity – such as people not eating a healthy diet – does far more to raise health care costs than does failure to have health insurance. Therefore, under the government’s logic, “Congress could address the diet problem by ordering everyone to buy vegetables.” Therefore, the government’s arguments with regards to the commerce clause are ultimately unsupportable.
The problem with those taking the rosy view; however, is that the Chief Justice’s opinion is 59 pages. The Chief takes a detour roughly halfway through the opinion that is so unfathomable, it almost reads as if an entirely different person wrote the opinion.
Chief Justice Roberts holds that despite the statutory language, the penalty for failure to buy health insurance can more accurately described as a tax. This, despite what the language of the bill actually says, and what President Obama himself even said. And that’s also in contradiction of what had just been argued when discussing the anti-Injunction act. As Carrie Severino puts it:
The main holding of the case is that the mandate is upheld as a proper exercise of the taxing power. This is a decidedly awkward result, as the first section of the result explains that the mandate is not a tax for the purposes of the Anti-Injunction Act. During the oral argument the courtroom erupted in laughter when the solicitor general was asked how he could argue that the mandate was not a tax on Monday but was on Tuesday. In the end, the court chose that implausible — even laughable — result in a fairly explicit attempt to hold the mandate constitutional.
Jeff Goldstein also mocks this bit of legal jujitsu. Intentionalism is a concept that he blogs about frequently, and he rightfully calls out the Chief Justice for his violation of the concept.
According to the CJ, a penalty is indeed a tax when it can be viewed as a tax for purposes of a ruling. Meaning, a penalty is a tax when a Justice decides to rewrite the law to turn a penalty into a tax. Which he justifies because the way the penalty looks to him suggests that “reasonable” people (or philosopher kings) can, if they squint — and if they ignore the intent that turned the law into law in the first place, and turned a set of marks into a set of signs, into language — see a tax. How that is “reasonable” is anyone’s guess: we know in no uncertain terms that Obama and the Dems who passed the law didn’t devise the mandate as a tax (despite what they later argued); for one to conclude that it is reasonably possible to “read” a penalty as a tax, therefore, what c0mes to count as “reasonable” must be redefined as “ignoring what we know to be true”. And that seems antithetical to “reason.”
Roberts has chosen to see a tax where a penalty was intended — thereby rewriting the law and turning it into a new text, one which he intends, though he incoherently and disingenuously suggests that he is finding meaning in the text that can “reasonably” be ascribed to it.
Roberts justifies this change in terminology by noting that the amount of the penalty that would be levied would not be punitive – in fact the cost of paying the penalty would often be less than the cost of buying health insurance. And since the so-called penalty would not be burdensome, it’s not really penalizing behavior.
But the most egregious aspect of this decision, and one which an astounding number of commentators seem to be missing, is that the Chief Justice has massively expanded the use of the taxing power. Roberts asserts that “taxes that seek to influence conduct are nothing new.” He then rattles off a list of things that are taxed heavily in order to change behavior, including cigarettes. The problem with this is that people have to buy cigarettes in order to be taxed. This “tax” is applied to people who don’t make a purchase. In other words, the federal government is taxing non-activity. It is the same exact logic that the government used to justify the mandate under the commerce clause. All Roberts has done is shift the authority under the Constitution which justifies government intervention.
Then Roberts makes the astounding claim, also amazingly echoed approvingly in certain quarters, that “While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.” (emphasis mine)
I’m actually embarrassed for the Chief Justice here. Surely he is not as incapable of making a logical progression as this statement suggests he is. But let’s make this crystal clear. If you do not purchase health insurance, you will be penalized, err, “taxed.” If you fail to pay that tax at the end of the year, what do you suppose happens to you? Does the IRS send you a series of letters pleading with you to “please, pretty please, with a cherry on top, please pay your tax?” Do they put little frowny faces at the bottom of these letters? Does the Commissioner of the IRS stand outside your window with a boom box blaring “In Your Eyes” by Peter Gabriel, the rain pelting him as he cries out “Please, just pay this tax which, by the way, should in no way be construed as a penalty?”
Oh, that’s right, you go to jail. So you totally have the right to not buy health insurance, and there’s absolutely no punishment for failure to pay the tax. This assumes, of course, you always wanted to share a very small space with a drug dealer named Zeke. Just think of this as a government-funded vacation where you may, or may not, have discomfort walking towards the end of the vacation. You see – what a bargain!
The Chief Justice makes several more spurious claims. He notes that “tax incentives already promote, for example, purchasing homes and professional education.” But tax incentives are reductions in the level of taxation for making certain purchases. Your taxes are not increased when you decide to rent a house instead of purchase one.
Roberts observes that the “Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated in the Constitution.” Really? The income tax was made allowable only through the 16th Amendment, but it’s not a tax merely for existing. It’s a tax that only applies if you earn money – in other words, it’s a tax that applies only when you engage in the activity of earning your daily bread. It’s not a “mere existence” tax, and it’s certainly not a taxation of non-activity.
According to Article I of the Constitution, Congress has the ability to issue direct taxes apportioned among the several States, but the Chief Justice himself declares that this is not a direct tax.
Section 8 of Article I states:
Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
Again, I fail to see how that justifies taxation of non-activity. The idea that this kind of tax would have been countenanced by the same people (by and large) who fought the War of Independence is laughable on its face.
Attempts to sugarcoat this opinion are wrongheaded. In many ways, Roberts’ basing his decision on the tax power is worse than if he had relied on the Commerce Clause, for he has actually expanded the reach of the federal government in a way heretofore unseen. It’s true that Roberts and the four dissenters limit the reach of the commerce clause, but in reality they haven’t done much more than what the Rehnquist Court did in the mid-90s in the Lopez and Morrison cases in limiting the scope of the Commerce Clause. No new ground has been broken, and no old precedents were over-ridden. Much the same can be said with respect to the Medicaid ruling. On the other hand, the Chief Justice has broadened the taxing power so that it can now be applied to non-activity. Long story short, the federal government has more power today than it did yesterday. That is the most chilling aspect of this decision.
I believe that the commenter cthemfly25 has it right in the comments on my previous post:
Congress can always use taxing authority to undermine the constitution. And if a tax can be used to undermine the constitution and modulate and control social behavior, then the all powerful central government can use its unmitigated taxing power to regulate religion (there is no way applying Roberts’ logic that the religious mandate could be struck down), regulate home schooling or private schooling (“taxed” for not teaching homosexual curriculum), regulate the size of families (taxed for having more than two kids), regulate food or beverage consumption (taxed based on calorie intake), regulate fuel consumption (“taxed” for excessive fuel consumption), regulate choice of consumer goods such as vehicles (“taxed” for not purchasing a “green” car),—–regulate from a central authority any human or civic activity under the rubric of “taxation”.
Perhaps the Anti-Federalist Brutus was right, after all, about the taxing power under the Constitution.
This power, exercised without limitation, will introduce itself into every comer of the city, and country — It will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take cognizance of the professional man in his office, or his study; it will watch the merchant in the counting-house, or in his store; it will follow the mechanic to his shop, and in his work, and will haunt him in his family, and in his bed; it will be a constant companion of the industrious farmer in all his labour, it will be with him in the house, and in the field, observe the toil of his hands, and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States. To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE!
The Supreme Court has ruled the individual mandate is constitutional as a tax. So the individual mandate is not a permissible use of the commerce clause; however, it is appropriate for Congress to levy a tax that essentially forces taxpayers to buy health insurance.
I will have to wait until I read the entire opinion before rendering judgment, but at first blush this looks like a terrible defeat for the rule of law.
By the way, it looks like it was a 5-4 decision. Kennedy voted with Scalia, Thomas and Alito. Let that sink in.
Correction: I am now reading that it was 6-3. Honestly, I’m reading a lot of conflicting reports, so I’ll refrain from further commentary until I read the opinions.
Correction to the Corrction: Nope, Kennedy, Alito, Thomas and Scalia would have decreed the entire act unconstitutional. It was John Roberts who saved Obamacare.
And now I offer my apologies to all those I scolded for critiquing the John Roberts selection. You were right. I’ve thus changed the post title.