Law

Why Hasn’t George Zimmerman Been Arrested Yet?

(AP Photo)
I have a new email correspondent—let’s call him “Joe,” because he doesn’t want to be named—who has suggested to me that the media storm about Trayvon is more than a little out of control. Joe writes: why isn’t there coverage to how many more young black men die at the hands of other black men? Why isn’t there a national uproar when black men murder white men? (He’s sent me clippings of a trial in one such Florida murder.) I’ve gotten hate mail, too, but from the exchanges we’ve had, my sense is that Joe’s different; he’s seriously trying to have a conversation. So let me say this: what’s deeply upsetting to me is that, more than a month after a teenage boy was killed while walking home with Skittles, George Zimmerman has not even been arrested. Listen, I don’t know what happened in Sanford, Florida, on the night of February 26. I know I’m responding to Charles M. Blow’s columns, and to the stories that I know of black men being treated as dangerous simply because they’re black , and...

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...

Judges as Defendants, Directors as Judges

The Law in These Parts asks tough questions about the role of the courts in Israeli settlement policy.

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This time, it seems, justice has won: The West Bank settlement outpost of Migron must be demolished. So ruled the Israeli Supreme Court this week. Migron is the best known of the outposts, small settlements set up across the West Bank since the '90s with the help of Israeli government agencies—but without the government approval required under Israeli law since official approval would drawn too much publicity. The outpost stands entirely on privately owned Palestinian property. The landowners, with the help of Israel's Peace Now movement, went to court in 2006. In this week's decision, the court rejected a government proposal to put off evacuating the settlers for three years until new homes could be built for them elsewhere. The ruling blasts the proposal as "egregiously unreasonable" in light of the "grievous and ongoing harm to the rule of law." Prima facie, the court upheld the rights of Palestinians over the government's fear of enforcing the law against settlers. The Israeli...

Predicting the Supreme Court Vote

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This is from political scientist Michael Evans , and was originally posted to a law and courts listserv. I thank him for sending it along: ***** I was curious about the relative number of words directed at the two sides in yesterday’s oral argument and thought the results would be of interest here. For those not familiar with the research on this (see below), it has shown that Justices tend to direct more questions and words at the side they eventually vote against. (Questions and words are highly correlated, but I prefer words because questions are harder to define.) The theory is that Justices generally do not play “devil’s advocate”—asking questions to help the side they support—but, rather, attempt to expose what they see as the weaknesses of the other side’s arguments. This table shows the relative number of words uttered by each Justice to the two sides regarding the constitutionality of the individual mandate under the commerce clause. As is typical, Thomas did not ask any...

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,...

How Far Will the Supreme Court Go?

"Balls and strikes" my ass. (Flickr/DonkeyHotey)
Just a few days ago, most people ( including me ) thought that while Thomas, Scalia, and Alito might display their naked partisanship in deciding the fate of the Affordable Care Act, both Anthony Kennedy and Chief Justice John Roberts, concerned with maintaining the Court's legitimacy and integrity, would surely uphold the law. And now after the spectacle the justices made of themselves for three days, everyone seems certain that the law is doomed, in whole or in part. And it really was a spectacle, one in which, as E.J. Dionne says , the "conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee." What, you thought the Supreme Court's job wasn't to decide if they personally like a particular law, but whether it's constitutional? How quaint. Justice Scalia even asked whether if the government can regulate the insurance industry, it can make you buy...

The Best Signs from Yesterday's Tea Party Rally

(Photo: Patrick Caldwell)
Tea Partiers descended on the Capitol Tuesday afternoon to voice their disapproval of Obamacare as the Supreme Court debated the constitutionality of the individual mandate, which will require citizens to purchase health insurance or else face a nominal fee once the bill has been fully implemented in 2014. Initially a conservative solution—originating at Bush's favorite think tank The Heritage Foundation—the mandate has come to symbolize conservative distaste with the bill that will expand coverage to millions of currently uninsured Americans. The rally on a lawn north of the Capitol was hosted by Americans for Prosperity, the Koch brothers' political arm that has funded many of the Tea Party's major gatherings. AFP president Tim Phillips kicked off the proceedings, leading the crowd in chants of "repeal the bill." A sea of over a thousand Tea Partiers—largely middle-aged or elderly, and almost all white—in red "Hands Off Health Care" t-shirts were in attendance from across the...

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...

A Decision Is Coming

A crowd of protesters outside the Supreme Court on the first day of ACA hearings (Photo: Patrick Caldwell)
The Supreme Court opened hearings today on the Patient Protection and Affordable Care Act—PPACA if we're going to be technical—but more commonly known as Obamacare. The six hours slotted for oral arguments are spread out across three days, and while the constitutionality of the individual mandate is the main issue at stake, there will be a host of other topics discussed, ranging from severability (whether the rest of the law can stand if the mandate is struck down) to whether Congress was within its bounds when it redefined Medicaid eligibility to include swaths of new people currently uninsured. I was outside the court this morning talking with protesters rallying for and against the bill (more on that to come later) but Prospect alum Adam Serwer was inside for Mother Jones listening to the judges debate the first issue at hand: can they even decide on the qualms with the law or do they need to wait until after 2014 when ACA is fully in effect? According to the 1867 Tax Anti-...

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...

The Supreme Court, Health Care Reform, and Electoral Politics

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Last week I participated in a roundtable that on these issues, along with other GW faculty from public health and law—Sara Rosenbaum, Peter Smith, and Katherine Hayes—as well as former U.S. Senate Finance Committee staffer Mark Hayes and former House Commerce Committee Health Subcommittee Counsel Andy Schneider. You can find a synopsis here and the video here . My remarks centered on implications of health care reform for the 2012 election (as I previously wrote about here ). How might the Court’s decision affect the politics of the issue for the election? First, it’s likely that the Court’s decision—no matter what it is—won’t much affect overall public support or opposition to the Affordable Care Act. Court decisions often simply polarize approval—as in this study of Roe v. Wade. There are already early indicators that this will happen. In a March 2012 Kaiser Family Foundation poll , respondents were asked how they would feel if the court rules the individual mandate unconstitutional...

The Affordable Care Act On Trial

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Today the Supreme Court begins hearing oral arguments to determine the constitutionality of the Affordable Care Act. It's the timid (or maybe wise) pundit who fears making predictions, so I'll go ahead and say this: the Court is going to uphold the ACA, by a vote of 6-3. Chief Justice John Roberts will join the four liberal justices and Anthony Kennedy in the majority, and Roberts will write the decision. Justices Scalia, Thomas, and Alito will offer a vigorous and at times comically overstated dissent, in which they will decry the end of the freedom that universal health coverage will bring. That may just be optimism talking; I've certainly allowed my hopes to outrun good sense before. There's a voice inside me that says "Don't forget Bush v. Gore !" In other words, the Court is perfectly capable of acting in a nakedly partisan manner if it so chooses, so the five conservatives could well decide that the opportunity to undo a Democratic president's signature domestic policy...

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