United States Supreme Court
The New York Times hilariously believes that by agreeing to take up the question of gay marriage, the Court will resolve the issue, the Times assuming, as I do, that the Court is likely to strike down all laws against gay marriage and impose it by judicial fiat.
Such judicial interventions in the governance of this country in regard to hotly contested questions tend to be the starting of debates and not the ending of them. This week on January 22, we will be observing the 42 anniversary of the decision of Roe v. Wade which sought to resolved the abortion issue. The fight about abortion continues unabated, the Court’s pro-abortion rulings notwithstanding. In a democracy, attempts by nine unelected lawyers in black robes to resolve questions of great moment tend not to work in the absence of political power and consensus to support the decision. Mollie Hemingway at The Federalist reminds us that the Court has a long history of inflaming, rather than ending, debates in this nation:
In “Abuse of Discretion,” Clark Forsythe’s comprehensive look at how Roe v. Wade came to be, he notes that advocates of legalized abortion polled a very general question about whether abortion “should be between a woman and her physician.” Four months before the first arguments in Roe v. Wade were made, such a question got 64 percent affirming it in a Gallup poll, perhaps because the wording was so vague. (This is a bit of an aside, but Forsythe notes that abortion is almost never between a woman and her physician. Fewer than 5 percent of abortions are performed by a woman’s regular OB-GYN and almost all are performed by a stranger.)
You’d have to be living in a New York Times bubble to think that Roe v. Wade was either a limited decision or would end debate. In many ways, that decision is what led to many more people thinking deeply about abortion for the first time. And when they did begin thinking deeply about the topic, it frequently benefited the pro-life movement.
In another abortion decision years later, some justices signed onto some serious wishful thinking about court decisions settling the question of whether there is a right to kill an unborn child. Scalia’s dissent in Casey speaks to this and offers yet another example when the court thought it was settling another contentious issue (and that one’s a doozie):
There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case–its already apparent consequences for the Court, and its soon-to-be-played-out consequences for the Nation–burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.” It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved–an issue involving life and death, freedom and subjugation–can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
I’ll give the New York Times this much: Whatever the Supreme Court decides on same-sex marriage, I bet it will end the debate at least as much as Dred Scott ended the debate about slavery, Roe ended the debate about abortion, and Casey ended the debate about abortion. Continue reading
Bravo to Roy Costner IV! Valedictorian of his class at Liberty High School in Liberty, South Carolina, he tore up his approved speech which did not mention God, and spoke about his Christian faith, reciting the Paternoster:
“Those that we look up to, they have helped carve and mold us into the young adults that we are today,” Costner said in his speech. “I’m so thankful that both my parents led me to the Lord at a young age. And I think most of you will understand when I say…”
Go here to The Daily Caller to read the rest. The absurdity of Federal judges acting as censors of student speeches at commencement stems from a 6-3 decision of the Supreme Court in Santa Fe Independent School District v. Jane Doe (2000) in which the majority banned student led prayer at football games as an establishment of religion.
Chief Justice Rehnquist wrote a scathing dissent that began:
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.
The Court distorts existing precedent to conclude that the school district’s student-message program is invalid on its face under the Establishment Clause. But even more disturbing than its holding is the tone of the Court’s opinion; it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of “public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.” Presidential Proclamation, 1 Messages and Papers of the Presidents, 1789-1897, p. 64 (J. Richardson ed. 1897). Continue reading
For those conservatives tenaciously clinging to the idea that Chief Justice John Roberts is playing some masterful game of chess that will end only with the liberals on the Court, in Congress, and in the White House brought to their knees in humiliating defeat, well, I’m not even sure the Chief is up for a rousing game of checkers. According to Jan Crawford’s piece, Roberts’ change of heart was motivated in large part to concerns over media pressure. So, the Chief Justice of the United States, according to this report, was cowed into upholding Obamacare because he was afraid of how the Court – and especially he – would look.
It has been rightly pointed out that Crawford relied on two anonymous sources, and therefore this story should be taken with some fine grains of salt. It’s certainly a plausible story, but an unconfirmable one.
Fine. It is possible that the Chief Justice wasn’t cowed by media or executive pressure. But even if the Chief Justice was not particularly pressured to decide in favor of Obamacare, it’s not beyond reason to suggest that he was still concerned about the institutional prestige of the Court, as well as a respect for the other two branches of government. Thus he concocted a rather far-fetched legal argument in order to justify declaring as constitutional a statute he knew at heart was not constitutional. So the more charitable interpretation of Roberts’ behavior is not that he’s a coward, but rather an activist who decided to rewrite a statute from the bench in order to avoid embroiling the Court in a partisan political battle.
There is a third option: John Roberts legitimately believed in the argument he made about the statute’s constitutionality.
Which is the option in which the Chief Justice looks like a chess playing genius again?
The title of the post, by the way, comes from my wife’s suggestion that President Bush nominated a Ravenclaw when he should have nominated a Gryffindor. It’s certainly more logical than anything I heard the Chief Justice say last week.
Update: It occurs to me that there is a fourth avenue of “defense,” and that is Roberts made a brilliant political calculation by forcing Obama to defend the health care law as a tax. Put aside the question of whether or not that would be an astute political maneuver. If that were indeed Roberts’ intention, than that hardly speaks well as to his character as Chief Justice. If he decided to uphold the law only to enable its use as a partisan club against the president, then the Chief Justice would have engaged in behavior that would justify his removal from the bench. So his defenders might want to think twice about that line of attack, at least insofar as they posit that he willfully engaged in such politicking.
By the way, if you’re still unsure of what to think of John Roberts’ thought process, look who was helping him along and now has his back.
Kmiec, a rare conservative supporter of Obama in 2008 who served as his ambassador to Malta, said he thinks Roberts sought out Justice Anthony Kennedy’s vote but didn’t spend much time trying to sway Justices Antonin Scalia, Clarence Thomas and Alito. Roberts, he said, probably didn’t worry about being punished by the conservatives.
“Roberts is a bigger man than that,” Kmiec said. “He might smile and recognize that was what they were doing, but he’d also just appreciate that was their way of making a statement. But he’d not chase the tail of the dog to try to turn it around.”
Kmiec, who served a resource to Roberts as he lined up his current two-week teaching trip to Malta, said he thinks Roberts would prefer that the story of the court’s internal deliberations get out “rather than keeping it so secret that it’d have caused some hard feelings among the chambers.”
“I think he knows in his heart that he’s reached a good decision for the well-being of the court and I don’t think he’s earned any long-term enmity of the conservatives,” Kmiec said. “If anything, this will give him more bargaining ability for years to come on both sides.”
Well if he’s got Doug Kmiec on his side, what more can a man ask for than that?
I was primed today for the Obamacare Decision. I made certain that I had no court hearings today, and my appointments were not starting until 10:00 AM. Alas my third kidney stone decided to make its appearance at 7:00 AM. By 9:00 AM I was suffering from truly memorable pain. I stayed home from the law mines and had my secretary reschedule all my appointments except the 2:00 PM which was in the nature of an emergency. Nursed by my wife, and my doctor who opened his office early for me, God bless him, I soon had in my system very strong painkillers and Flowmax. By 1:30 PM I still felt like bayonets were probing my nether regions, but duty is duty and my wife drove me to my office for the 2:00 PM appointment. By the end of it at 3:00 PM I was feeling semi-human, the pain killers and the Flowmax working their magic.
As for the Obamacare decision, a plain text copy of the decision may be read here, the majority opinion by Chief Justice Roberts is both brilliant and wrong. His exposition of how th individual mandate violates the Commerce Clause is magnificent. His transformation of the mandate into a tax was clever and wrong. The idea that something is a tax if it is used as a penalty to compel behavior is imaginative and absurd. Go here to read an examination of the decision shorn of legal gobbledygook. Lost in the hubbub over this part of the decision is that Roberts had a majority of the court rule that states could refuse to take part in the Medicaid expansion, a key part of Obamacare, and that Congress could not punish them by taking away all their Medicaid money. Go here to read an analysis of that portion of the decision. Continue reading
When the decision of the Supreme Court is released tomorrow at 9:00 AM Central Time I will do my best to link to the decision and have some commentary, work permitting in the law mines. Now of course we can only guess what will happen. Few things are more futile than attempting to guess what a court will do, but it is fun! I share in the conventional wisdom that the Court will likely strike down the mandate but uphold the rest. From a political standpoint, although it would be a travesty under the Constitution, I would prefer that the Court uphold the whole thing, since I think it would ignite a firestorm among conservatives and lead to a devastating defeat for Obama in the fall. Well, we will see what happens tomorrow.
Obama gave us a preview today of the tactics he will use if the Supreme Court rules against ObamaCare.
In his first public comments about the case since the justices took it up last week, Mr. Obama appeared to be framing the political argument he would make should he have to face voters this fall after a loss at the high court.
“For years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law,” he said at a news conference. The health-care case is a good example of just that, he said. “And I’m pretty confident that this court will recognize that and not take that step.”
White House officials have said they were reluctant to appear to lobby the Supreme Court, which is partly why the president didn’t speak out on the case until after it was argued before the court last week. Continue reading
A very long day in the Supreme Court today with the severability argument this morning, and the expansion of medicaid under ObamaCare in the afternoon. Continue reading
Day 2 of oral argument on ObamaCare. Go here to read the transcript. Go here to listen to an audio recording of the oral argument. Today’s argument focused on the constitutionality of the individual mandate and the argument did not seem to observers to go well for the Obama administration. Jeffery Tobin, CNN’s legal analyst, put it succinctly:
“This was a train wreck for the Obama administration,” he said. “This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong… if I had to bet today I would bet that this court is going to strike down the individual mandate.”
“I don’t know why he had a bad day,” he said. “He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices.”
I would caution everyone from reading too much into the questions asked by the Justices on the first of three days of oral argument, but it was an interesting day of oral argument. Go here to read the transcript. Go here to listen to an audio recording of the oral argument. My thoughts on the first day I will post this evening. Continue reading
Fred Biery, a Bill Clinton appointee, is a Federal District Judge down in Texas. In order to satisfy two village atheist parents of a student who contend that their 18 year old “child” will be irreparably damaged if any prayer escapes any lips during his high school commencement ceremony, Biery has banned all prayer at the high school commencement of the Medina Valley Independent School District on Saturday. This includes the Judge censoring the speech of the valedictorian of the graduating class, Angela Hildebrand, a Catholic, who wished to say a prayer in her speech.
The ruling was in response to a lawsuit filed by Christa and Danny Schultz. Their son is among those scheduled to participate in Saturday’s graduation ceremony. The judge declared that the Schultz family and their son would “suffer irreparable harm” if anyone prayed at the ceremony.
“Part of this goes to the very heart of the unraveling of moral values in this country,” Texas Attorney General Greg Abbott told Fox News Radio, saying the judge wanted to turn school administrators into “speech police.”
I’ve never seen such a restriction on speech issued by a court or the government,” Abbott told Fox News Radio. “It seems like a trampling of the First Amendment rather than protecting the First Amendment.”
Judge Biery’s ruling banned students and other speakers from using religious language in their speeches. Among the banned words or phrases are: “join in prayer,” “bow their heads,” “amen,” and “prayer.”
Should a student violate the order, school district officials could find themselves in legal trouble. Judge Biery ordered that his ruling be “enforced by incarceration or other sanctions for contempt of Court if not obeyed by District official (sic) and their agents.”
The Texas attorney general called the ruling unconstitutional and a blatant attack from those who do not believe in God — “attempts by atheists and agnostics to use courts to eliminate from the public landscape any and all references to God whatsoever.”
“This is the challenge we are dealing with here,” he said. “(It’s) an ongoing attempt to purge God from the public setting while at the same time demanding from the courts an increased yielding to all things atheist and agnostic.”