Supreme Court

SCOTUS Update: No Decision on PPACA, Most Provisions of AZ Immigration Law Struck Down (Updated)

The Supreme Court’s decision on the individual mandate will be delivered on Thursday. Based on who has authored opinions thus far this term, it is highly likely that the majority opinion will be delivered by Chief Justice Roberts. Even if that is the case, that does not mean that the individual mandate is doomed.

Today the Court did deliver an opinion on the Arizona immigration law, striking down three of the four major provisions. The Court permitted the “show your papers” provision, though the language suggests that it must be applied narrowly. Justice Kennedy delivered the opinion of the Court. The case was decided 5-3, with Justice Kagan recusing herself. Justices Alito, Scalia, and Thomas dissented. The opinions can be found here.

The Court also ruled that juvenile convicts cannot be subject to life in prison without parole. As Shannen Coffiin quipped, next “look for the Court to decide that juvenile offenders cannot be sent to their room without possibility of their supper.” The decision is here.

In another case, the Court ruled that its Citizens United decision applies to a Montana state law.

All in all, today’s decisions remind us that, no matter how the Court rules on the individual mandate, the Court is still a bloody mess.

I hope to have further analysis of the Arizona case later today.

Update: Reading through the opinions now in the Arizona case, and I just want to note that Alito agreed with the majority in declaring Section 3 of the AZ law (which forbids the “willful failure to complete or carry an alien registration document”) to be preempted by federal law. Both Thomas and Scalia would have upheld all four sections of the law.

Update 2: And the fig leaf that the Court gave to the state of Arizona proved to be of little use:

The Obama administration said Monday it is suspending existing agreements with Arizona police over enforcement of federal immigration laws, and said it has issued a directive telling federal authorities to decline many of the calls reporting illegal immigrants that the Homeland Security Department may get from Arizona police.

Administration officials, speaking on condition they not be named, told reporters they expect to see an increase in the number of calls they get from Arizona police — but that won’t change President Obama’s decision to limit whom the government actually tries to detain and deport.

Shorter headline should be, “Obama to Arizona: Drop Dead.”


Sons of Cain: St. Michael, Knights of Longinus, and Bohemians

Can you answer the Teaser Questions at the end?

When I asked my political science and history buff, numerical mechanics expert, Special Ops retired military officer husband to recommend his favorite author so I could read it, it was a wifely effort to show love, to get to know him better. He answered, “Tom Clancy,” and handed me Debt of Honor and Executive Orders, an overwhelming 2,500 page paperback brick stack. My eyes bugged out.

But hey, I’m committed, so I read Tom Clancy’s masterpiece tale, and my hesitation turned into enthusiasm. The technical world of national warfare, really the pitting of good and bad individual leaders against each other, was fascinating and caused me to rethink the meaning of pacifism. Through the characters, I developed an appreciation for the courage and humility required of good leaders. Tom Clancy is a master at teaching through storytelling because his novels are exhaustively researched, reality-based fiction. The two-part story (only part of a bigger series) centers around a terrorist attack in which a hijacked Boeing 747 is flown directly into the U.S. Capitol during a joint session of Congress, decapitating the government. It is interesting to note that the books were published four and six years before September 11, 2001. Many people wondered about the prophetic nature of the book because it turned out to be more real than anyone anticipated. Tom Clancy understands the mentality of his characters, deeply.

Reading Val Bianco’s novel, Sons of Cain, was kind of like that, except Mr. Bianco brings a spiritual fullness to his work that makes it eternally pertinent. It is not nearly as tedious as working through a Clancy military novel, but the progression of the story ushers the reader into a life-changing experience, beckoning a more thoughtful dive into current world events and what goes on the minds of those who cause them. It makes spiritual warfare tangible and present, yet with an inspiring catechetical quality. I no longer wonder how to think of angels and demons, and I can almost see the “spiritual space” in the battle of good and evil when I consider how and why certain events happen the way they do. Are there large and terrible demons with their claws dug deeply in the heads and abdomens of men, preying on their minds and souls, coercing them to malice and perceived power, even as it makes them feel sick? Think about it! Continue reading

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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