Scott Lemieux

Scott Lemieux is an assistant professor of political science at the College of Saint Rose. He contributes to the blogs Lawyers, Guns, and Money and Vox Pop.

Recent Articles

No, Really, Blame John Roberts on Medicaid

The Prospect 's Paul Waldman has a terrific piece noting the terrible effects of states refusing the Medicaid expansion contained in the Affordable Care Act. Slate 's Matt Yglesias notes who should get the blame for this: John Roberts and the other conservative Republican justices who—in an unprecedented decision—ruled that making existing Medicaid money from the federal government contingent on accepting the expansion was unconstitutional. Kevin Drum of Mother Jones , however, argues that we shouldn't blame John Roberts because he was right : I think this is unfair. In fact, there were only two justices who upheld the Medicaid expansion (Ginsburg and Sotomayor). All the rest, including the liberals Breyer and Kagan, struck it down. So it wasn't even a close call. The vote against the Medicaid provision was 7-2. And as much as I dislike the result, I can't find a lot of fault with this. The basic holding was simple: given our federalist structure, states can't be forced to help fund...

How the Shutdown Will Affect the Federal Courts

The government shutdown that began on Monday will have substantial effects on our country's justice system that will escalate over time. For the most part, the basic functions of the federal judiciary will continue during the Republican crusade against affordable health insurance. The Antideficiency Act permits the government's "essential services" to be funded during a shutdown. The Supreme Court, which accepted eight new cases this week, will remain open barring unforeseen circumstances. Since criminal justice is generally considered an essential service, circuit and district courts will remain open and continue to hear criminal cases as well. (The Sixth Amendment's requirement that defendants be given a "speedy and public trial" would mean serious potential problems should the prosecution of criminal cases be suspended for any significant length of time.) So federal judges will generally maintain employment, and courthouse doors will remain open. With respect to other basic...

I Was Wrong about Elena Kagan

AP Photo/Alex Brandon, File
AP Photo/Susan Walsh O ne of the central arguments made by In the Balance , Mark Tushnet's terrific new book about the current Supreme Court bench ( reviewed here by Garrett Epps ), concerns the counterweight to the conservative faction led by Chief Justice John Roberts. If Democratic nominees are able to wrest control of the Supreme Court back from the Republican nominees who have controlled the median vote on the Court for more than four decades, Tushnet argues, it is Elena Kagan who is likely to emerge as the intellectual leader of the Democratic nominees. And despite what many liberals feared, there is every reason to think that this would be an outcome supporters of progressive constitutional values would be very happy with. When I say "many liberals," I include myself . My skepticism about the nomination, I should clarify, was not because I thought Kagan was a bad or unqualified nominee, or because I thought she was a closet reactionary. In the context in which Democrats had a...

Secular Corporations Cannot Exercise Religion, My Friend

AP Photo/Matty Zimmerman
Earlier this week, the 6th Circuit Court of Appeals rejected claims stating the requirement that corporations performing secular functions—in this case, the manufacturing company Autocam—cover contraception as part of their employee-insurance packages represented a violation of these corporations' rights. The 6th Circuit is the second circuit court to reject these claims, following the 3rd Circuit (conversely, the 10th Circuit held that there was a "likelihood" that the Hobby Lobby chain of craft scores was " substan tially burdened" by the requirement.) Perhaps even more interesting is the reasoning the 6th Circuit panel used to reach its decision. According to the court's persuasive argument, it is not possible for a for-profit corporation with secular purposes to "exercise" religion in a way protected by the Constitution or federal statues. To provide the relevant background, the most obvious source for a claim that the contraceptive coverage requirements violate religious freedom...

Yet Another NSA Violation

AP Photo/Patrick Semansky, File
L ast month, it was revealed that the court established by the Foreign Intelligence Surveillance Act (FISA) had rebuked the National Security Agency (NSA) for using illegal search methods. Not surprisingly, this incident wasn't an isolated one. In another judicial opinion responding to a lawsuit by the Electronic Frontier Foundation (EFF), further illegal abuses by the NSA were unveiled . Like the previous revelations, this story tells of the dangers posed by a NSA conducting searches with far too broad a scope and too few constraints. The latest NSA abuses involve the database of phone calls made by Americans compiled by the NSA. Phone companies have been ordered to turn over "metadata" about the calls made by their customers. The NSA keeps five years of this metadata on file at any given time. When the agency makes queries into the database, however, it is required by the FISA court to have a "reasonable articulable suspicion" that the call involves communication with a terrorist...

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