Supreme Court

The Left Suddenly Uncomfortable with Concept of Judicial Review

Don has covered President Obama’s not too subtle threat to the Court that it not dare strike down all or even part of Obamacare.  Yesterday he somewhat toned down his remarks, but still managed to step in it.

At an appearance this afternoon, a reporter asked Obama a question following up on yesterday’s comments: “Mr. President, you said yesterday that it would be ‘unprecedented’ for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the court’s done during its entire existence. If the court were to overturn the individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?”

Obama’s answer to the question was that he expects to win in court, and “as a consequence, we’re not spending a whole bunch of time planning for contingencies.” He went on to talk at some length about the “human element”–that is, people who would supposedly suffer in the absence of ObamaCare. Message: Obama cares, though not enough to spend “a whole bunch of time planning for contingencies.”

But the most interesting part of his answer was the beginning, in which he tried to walk back, or at least clarify, his statement from yesterday. He spoke slowly, with long pauses, giving the sense that he was speaking with great thought and precision: “Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner,right? So we’re going back to the ’30s, pre-New Deal.”

As James Taranto points out, this response is wrong on multiple levels.  The case that Obama cites in fact pre-dates the New Deal by a good thirty year.  Second, the full title of the case – Lochner vs. New York – tells us that this was a case involving state law, not federal legislation.  As Taranto further explains, there have been plenty of Supreme Court cases in which the high court struck down state laws, some dealing with economic matters.  And there of course have been plenty of cases where the Court has in fact declared federal statutes unconstitutional.  In fact two cases in the late 90s – US v. Lopez and US v. Morrison – directly implicated the commerce clause, and in both cases the Court rendered a 5-4 decision overturning acts of Congress which relied upon the commerce clause for their justification.

But other than that, I guess Obama was spot on.

The broader issue, other than Obama’s seeming ignorance of constitutional law, is that the left has suddenly decided that they don’t much care for this concept of judicial review. Continue reading

Hollow Victories

There is some excitement that oral arguments are going well for opponents of Obamacare.  Though oral arguments are not perfectly indicative of how the Supreme Court will vote in the end, there is some cause for guarded optimism.  That being said, even if the Court completely strikes down Obamacare, it will be something of a hollow victory.

Don’t get me wrong.  There is no other correct course of action for the Court to take than to strike down the individual mandate and thus effectively kill Obamacare.  It is one of those remarkable monstrosities that happens to be both bad policy and unconstitutional.  The problem is that something this monumental is essentially being decided on the whims of a single Justice.  How did we reach the point where our basic liberties come down to what Anthony Kennedy may have had for breakfast one day?

I don’t mean to be flip, but it feels like we’ve taken a very wrong turn somewhere along the line.  Continue reading

Assessing Potential Supreme Court Vacancies

Supreme Court appointments have been a relatively muted issue during the campaign.  It might be worth taking a look at the Court and in order to see where we might be headed over the course of the next presidential term.  I will be listing Justices in order from least to most likely to retire over the next four years.  Letter in parentheses indicates party of the president under which they were appointed.

John Roberts (R), Samuel Alito (R), Sonia Sotomayor (D), Elana Kagan (D):  All recent appointments, and all relatively young.  None of these guys are going anywhere anytime soon barring a catastrophic health crisis.

Clarence Thomas (R): Even though he recently started his third decade on the Court, Thomas is still fairly young, as he won’t turn 70 until 2018.  He is the Justice most committed to completely overturning decades of bad precedents, and I have a hunch he’d like to be on the Court to help shape those future rulings.  There is a tiny sliver of a chance he could retire if a Republican wins the presidency, but it would be a fairly big surprise.

Antonin Scalia (R), Stephen Breyer (D): Scalia and Breyer are fairly close in age.  Scalia turns 80 at the end of the next presidential term, and Breyer is two years his junior.  Scalia would also be completing his 30th year on the Court in 2016.  Both are still vigorous and active.  Neither will retire if a member of the opposite party wins the forthcoming election, and I would put the odds of retirement at just under 50/50 if someone from their party wins.  I would imagine Scalia would share some of Thomas’s desire to be able to shape opinions, so he might hang on through the next term.

Anthony Kennedy (R):  The Court’s swing vote, he is just a few months younger than Scalia and has served just one less year on the Court.  His retirement would be the game changer, and whoever gets to pick his replacement could be altering the course of the Court for the next thirty years.  It doesn’t matter which party controls the White House, the confirmation fight over his replacement will be a bloodbath, and I would fully expect a filibuster effort.

Will he retire, and will he peg his retirement to whoever is in the White House?  He’s a moderate, but he was appointed by a Republican.  Ultimately Kennedy will probably decide upon his retirement in the same manner as he decides most of his votes: by flipping a coin.

Ruth Bader Ginsburg (D): The only one of the eight clear ideoloigical justices who could retire during an administration of the opposite party.  She is the oldest member of the Court, and she has had some health problems in recent years.  I personally have seen her up close a couple of times, and she looked incredibly frail – and this was several years ago.  But she is still fairly vigorous, even travelling to Egpyt in order to tell the Egyptians how rotten our Constitution is.  She has evidently indicated a willingness to retire at 82, the same age as Louis Brandeis.  That would occur in 2015.

If Barack Obama wins re-election, I would put the odds at just about 100 percent that she will retire over the next four years.  Even if  a Republican wins the White House, health issues might force her hand.  If that happens, the confirmation battle will be just as intense, if not more so, than for whoever would replace Kennedy.

Ultimately the question we have to ask is which of the candidates is likely to go to the mats when it comes to a Supreme Court nomination battle?

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