The Docket

The Prospect's legal affairs blog

Putting a Limit on Justice

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The right’s outrage over Obama’s comments on the Supreme Court are hypocritical. All Obama said was the truth: It would, indeed, be unprecedented for the Supreme Court to overturn Obamacare, signifying a new interpretation of the powers granted to Congress under current Commerce Clause precedent. The president in no way insinuated that he would ignore the ruling, a fact verified by Attorney General Eric Holder in response to an outlandish request by a Reagan appointee on the Fifth Circuit. It was, however, somewhat disheartening to see Obama questioning the court by terming them an “unelected group of people,” as that legitimizes language typically employed by conservatives anytime the courts read the Constitution as protecting some form of social equality. The New Republic ’s Timothy Noah sympathizes with Obama, and offers term limits as a simpler solution: I’ve never liked the idea of term limits for members of Congress, because if a member outstays his or her welcome voters get the...

Judicial Review Doesn't Mean What You Think It Means

(AP Photo / J. David Ake)
Last night while I was asleep, highly placed sources whom I cannot identify (because they don’t exist) assured me that Attorney General Eric Holder originally wrote this first draft of a letter he was ordered to submit to Judge Jerry Smith of the Fifth Circuit. The final letter has quite a different tone. But those of us who cherish the rule of law can dream that he might have actually sent Judge Smith the following instead. Judge Jerry E. Smith Circuit Judge Fifth Circuit Court of Appeals Dear Judge Smith, Lawyers tell an anecdote about a psychiatrist who finds himself in heaven. St. Peter says, “We’re so glad you’re here, we have a psychiatric emergency!” The psychiatrist is puzzled. “How can that be?” he asks. “Surely the souls of the blessed are free from all pain and torment. Why would they need a psychiatrist?” “It’s not the blessed,” says the saint. “It’s God. He has terrible delusions of grandeur—he thinks he’s a federal judge!” This story came to mind when I learned that on...

An Unreasonable Search for Justification

(AP Photo/Mel Evans)
(AP Photo/Mel Evans) Albert Florence, right,with his attorney Susan Chana Lask. Yesterday, the Supreme Court denied Florence’s claim that strip searches in two county jails violated his constitutional rights, in an important test of the privacy rights of people who have been arrested. Under the Fourth Amendment of the Constitution, searches and seizures must be "reasonable." Albert Florence was subjected to an invasive search—including an inspection of his genitals—after being detained following a routine traffic stop for an outstanding arrest warrant (that turned out to be invalid) before being moved to a correctional facility. The state had no evidence that he was carrying any dangerous contraband. Not only did it not have a warrant, not only did it not have the probable cause that would have been necessary for a warrant, it had no individualized suspicion at all. Florence had no reason to believe he would be arrested, and hence no reason to have weapons hidden in his body cavities...

Judging With Double Standards

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Sonia Sotomayor and Samuel Alito had virtually identical formal credentials—Princeton undergrads, Yale Law School, long careers on the federal bench. But Alito was treated with great deference by the press, and even opponents of his nomination based their arguments on his consistently reactionary judicial philosophy rather than suggesting that he wasn't "qualified." Sotomayor, conversely, was subject to repeated arguments that she lacked the intellectual abilities to serve on the Supreme Court. In a particular low point, immediately before Sotomayor's nomination The New Republic 's Jeffrey Rosen published a disgraceful article full of anonymous critics engaging in sexist attacks on Sotomayor that can't even be called "veiled"—aggressive questioning that would be considered charming if it came from Antonin Scalia showed that she didn't have the appropriate temperament, that the distinguished Yale Law-educated jurist lacked the intellect to be on the Supreme Court, etc. Needless to say...

Don't Wish For Judicial Overreach

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Given the hostility the Republican appointees on the Supreme Court showed to the Affordable Care Act during oral arguments this week, some progressives are seeking a silver lining. At least, some have argued, striking down the ACA would substantially undermine the legitimacy of the conservative-dominated federal courts. And even better, particularly if the Supreme Court strikes down the individual mandate while allowing the rest of the legislation to remain in operation, there’s the possibility that the resulting pressure on insurance companies facing an adverse-selection spiral would lead to a health care reform package better than the ACA. Should progressives see conservative judicial overreach as being as much opportunity as crisis? Alas, sometimes a devastating defeat is just a devastating defeat. Claims that striking down the ACA will substantially undermine the legitimacy of the Supreme Court are part of an extensive tradition of predictions that have generally turned out to be...

The Nine Circles of the ACA

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Nobody was doing well by the time oral arguments in the Health Care cases ended at 2:30 p.m. Wednesday. Some Justices were sniping back and forth. The lawyers were showing the strain. And Justice Antonin Scalia was telling jokes. “[Y]ou know—the old Jack Benny thing, Your Money or Your Life, and, you know, he says ‘I'm thinking, I'm thinking,’” Scalia said from the bench. “It's—it's funny, because it's no choice. ... But ‘your life or your wife’s,’ I could refuse that.” “He’s not going home tonight,” Justice Sonia Sotomayor threw in as the crowd laughed. “That’s enough frivolity for a while,” Chief Justice John Roberts (nobody’s straight man) said sternly. I think he, like me, was afraid we would never get home that night, as if the Supreme Court had sailed into some forensic dimension where the clock hands were frozen in ice. If you want to know how strange things got, consider that a Justice of the United States Supreme Court suggested that the Court should invalidate the entire 2,...

Verrilli's Courage Under Fire

(AP Photo/Evan Vucci)
On December 10, 1935, during oral argument before a hostile Supreme Court, then-Solicitor General Stanley Reed collapsed at the lectern. (He recovered and went on to serve on the Court himself.) Let history show that Solicitor General Donald Verrilli did not stagger yesterday under a Four Horseman-style onslaught of conservative questioning that seemed to leave the government without a path to victory in the “minimum coverage” phase of the Health Care Cases. Yesterday's argument concerned the centerpiece of the Affordable Care Act (ACA): the minimum-coverage, or individual mandate, provision. Under this rule, taxpayers who are not covered by employer or government health insurance will, after 2014, be required either to purchase an individual policy or pay a penalty on their tax returns. The requirement is designed to widen the insurance pool so that two other parts of the Act—one requiring companies not to discriminate on the basis of health risk, and the other forbidding them from...

The Unsurprising Possibility that the Court Could Strike Down the ACA

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I was somewhat surprised, prior to this week's oral arguments, how optimistic some of my favorite legal and political observers were about the outcome of the Affordable Care Act case being argued at the Supreme Court this week. The court, predicted Dahlia Lithwick , "will vote 6-3 or 7-2 to uphold the mandate, with the chief justice joining the majority so he can write a careful opinion that cabins the authority of the Congress to do anything more than regulate the health-insurance market." Linda Greenhouse foresees the Supreme Court upholding the law "by a wide margin." Kevin Drum also sees a 7-2 vote in favor of the ACA. Jon Chait argues that the law is clear, and acknowledges a chance the Supreme Court would simply ignore the law in the way they did in Bush v. Gore . I view things differently. I think there is a very real chance that the Court would strike down the law, and while I personally find these arguments exceedingly unpersuasive they're not "wrong" in the sense that they...

Pre-Game's Over. Now Begins the Health-Care Fight.

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What if you bought a ticket to The Hunger Games and ended up watching Life Cycle of the Soybean ? That may describe the feelings of bemused citizens listening to today’s recorded oral argument on the first of three days of hearings in the case against the Affordable Care Act. Instead of death panels and broccoli patrols, they got to hear a discussion for law nerds about statutory construction and the definition of “tax.” The staggeringly dull question: Does the Anti-Injunction Act (AIA), which prohibits taxpayers from suing the government until after they have paid a tax, prohibit the Court from hearing the health-care case at all? The resulting argument was abstruse, brilliantly conducted, and, well, snooze-worthy. The careful ear, however, could pick up the sound of the approaching guns. The health-care Armageddon arrives in full red-and-blue fury tomorrow. Today was just the opening shot. Read literally, the AIA would seemingly require the challengers to wait until 2014—when the...

Will the Supreme Court Duck Health Care?

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The great legal theorist Alexander Bickel advocated that courts use "passive virtues"—that is, using invented jurisdictional reasons to not hear politically contentious cases. The political scientist Mark Graber has tweaked this concept to describe passive-aggressive virtues —the tendency of the great Chief Justice John Marshall to expound on his theories of constitutional law while deciding cases on grounds that left opponents no means of opposing the Court (usually because they ended up with the policy they wanted.) In an intriguing article for Slate, David Franklin argues that the Roberts Court could duck the constitutional challenge to the Affordable Care Act using these methods. The Court, Franklin notes, could simply decide not to decide by holding that the legal challenge to the ACA is prohibited by the Tax Anti-Injunction Act . This would keep the court out of the political firestorm for the time bring while refusing to give Obama a political victory by clearly declaring the...

Now Is the Law of Their Discontent

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To paraphrase Ecclesiastes, of the making of many briefs there is no end, and much study is a weariness of the flesh. My flesh is weary after weeks of poring over the party and amicus briefs in the Affordable Care Act cases, which (in case you haven’t heard) will be argued next week. There are four overall issues in the case: (1) is the minimum-coverage requirement (or “individual mandate”) a permissible use of the Commerce Power? (2) If not, should the Court strike down the entire Act or only the minimum coverage requirement? (3) Is the bill’s requirement that states receiving Medicaid funds expand eligibility for low-cost health-care “coercive” to state governments? And (4) is the entire lawsuit against the “minimum coverage” provision barred by the federal Tax Anti-Injunction Act until after the provision takes effect in 2014 and some taxpayer has been forced to pay the tax penalty for not carrying health insurance? If those don’t seem to flow in logical order, they don’t—(4)...

Precedents for the Unprecedented

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Here are quotes from an anguished brief filed with the United States Supreme Court: “the present statute . . .departs markedly from any prior statute sustained as an exercise of the commerce power. . . .” It “is incapable of being regarded as within the scope of any of the other statutes or decisions.” Further, “there is no statutory precedent to support the Solicitor General's position in this case.” That position “is founded on a concept of the interstate commerce clause which has never been recognized by the Courts. While the wisdom of legislation is a matter for the Congress it is within the Court's proper prerogative to look with deep concern at an assertion of power never heretofore upheld.” That brief was filed in the 1964 case of Katzenbach v. McClung. Two months later the Supreme Court decided that Congress did have the power to “regulate commerce” by requiring Ollie’s Barbecue, a family restaurant in Birmingham, Alabama, to serve African-Americans in its dining room. But the...

"That's Specious Reasoning, Representative"

Illinois Urban Landscapes Project, via Flickr Creative Commons.
Many of you will know this classic scene from The Simpsons , when Homer celebrates the expensive "Bear Patrol" created by city government as an overreaction to a single bear getting into the city: Homer: Not a bear in sight. The Bear Patrol must be working like a charm. Lisa: That's specious reasoning, Dad. Homer: Thank you, dear. Lisa: By your logic I could claim that this rock keeps tigers away. Homer: Oh, how does it work? Lisa: It doesn't work. Homer: Uh-huh. Lisa: It's just a stupid rock. Homer: Uh-huh. Lisa: But I don't see any tigers around, do you? [Homer thinks of this, then pulls out some money] Homer: Lisa, I want to buy your rock. [Lisa refuses at first, then takes the exchange] Another person who would like to buy Lisa's rock is Florida state representative Dennis Baxley: "Every time you have an adverse incident, immediately the anti-gun faction will say this law is the problem," Baxley, a Republican, said, adding that violent crime in Florida has dropped since its...

The Roberts Court Joins the War On Women

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When Daniel Coleman asked for sick leave from his job at the Appeals Court of Maryland, he was told he would be fired. The state's actions violated the Family and Medical Leave Act (FMLA), passed by Congress in 1993. Unfortunately, thanks to the Roberts Court, Coleman has a right without an appropriate remedy. A bare majority of the Supreme Court held Tuesday that while Coleman's statutory rights were violated, he cannot sue the state of Maryland for damages. Once again, the conservatives on the Supreme Court have prioritized "states' rights" over human rights. Sometimes, a bad policy outcome resulting from a Supreme Court decision is a compelling or at least clearly reasonable application of sound constitutional principles. Coleman v. Maryland Court of Appeals , however, is not such a case. In order to produce this unjust result, the Court had to rely on a double-header of bad legal arguments. First, it applied a "states' rights" doctrine with no basis in the text of the Constitution...

The History of Florida's "Stand Your Ground" Law

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Seventeen years ago, in Springfield, Oregon, a local mechanic went into a fast-food restaurant, walked up behind a man eating lunch, and shot him to death in the back of the head. A local grand jury refused to indict the shooter. There had been no altercation, no sign that the man shot was carrying a weapon. But the shooter believed that the victim had threatened his daughter. And the dead man was, in the words of the local district attorney, “a violent man, a drug dealer by trade.” Maybe the shooter should have left it to the police, the district attorney said, but the victim should also have “moderated his behavior.” I offer this tale as background to the shooting of Trayvon Martin in Sanford, Florida, and the ensuing debate about self-defense law. George Zimmerman, a neighborhood-watch volunteer, thought the black teenager was a suspicious presence in a gated neighborhood. Disregarding police instructions, Zimmerman pursued and confronted the young man minutes before killing him...

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