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Scalia's Weird VRA Spat

Scott LemieuxFeb 27, 2013

It is hard to overstate the importance of the Voting Rights Act of 1965. At the heart of the law that ended decades of disenfranchisement in former Confederate states is Section 5, the "preclearance" provision. Section 5 requires jurisdictions with a history of discrimination to get prior federal approval for any changes to state voting laws. The necessity of this provision was clear: without it, states had been able to nullify the commands of the 15th Amendment by passing measures that were formally race-neutral but were discriminatory in practice.

A Mixed Day for the Fourth Amendment

Scott LemieuxFeb 20, 2013
WikiMedia Commons

Yesterday, the Supreme Court decided two Fourth Amendment cases. The results were mixed. In one case, the Court protected an individual from an unreasonable search. But in another case, the Court again watered down Fourth Amendment protections in the name of the War on (Some Classes of People Who Use Some) Drugs.

Has Anthony Kennedy Moved to the Right?

John SidesJul 03, 2012

This is a guest post by Michael Bailey. See also his earlier post on the ACA decision.

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Roberts's Switch in Time

Scott LemieuxJul 02, 2012
WikiMedia Commons

Jan Crawford has a blockbuster story in which two sources confirm what many people inferred from the structure of the opinions—that Chief Justice John Roberts initially voted to strike down at least some parts of the Affordable Care Act before switching his vote. The story reveals some interesting things about Roberts and the Supreme Court, although we should also be careful about taking all the claims at face value given that they clearly reflect the positions of justices and/or clerks with an ax to grind.

Court Stays Clear of Tinkering with the First Amendment

Garrett EppsJun 29, 2012
(Flickr / mr_mayer)

Xavier Alvarez got twin pieces of good news Thursday. First, thanks to the Court’s decision in the Health Care Cases, Medicaid in California may soon be funded to supply mental-health services to crazed compulsive liars like him. Second, and of more immediate interest to him, he won’t be doing a year in the federal slam for falsely claiming to have won the Congressional Medal of Honor.

Sometimes a Loss Is Just a Loss

Scott LemieuxJun 28, 2012
WikiMedia commons

Given the very strong likelihood that the centerpiece legislation of the Obama administration would be struck down in its entirety, yesterday's decision upholding the Affordable Care Act seems to most progressives like both a relief and a major political victory. But was it actually a legal victory when you examine the opinions closely? Tom Scocca says no:

It's Roberts's Court Now

Garrett EppsJun 28, 2012
(AP Photo/Nick Ut)

For months before today’s announcement of the Supreme Court’s decision in the Health Care Cases, the conventional wisdom had centered on two things: (1) The vote would be 6-3; and (2) Chief Justice John G. Roberts would write the opinion. Roberts would jump the way Justice Anthony Kennedy jumped and then write the opinion to shape doctrine for the future.

Who’s Sovereign Now?

Harold MeyersonJun 26, 2012
(AP Photo/Chris Greenberg, File)

Hard to say what’s more bizarre about Antonin Scalia’s furious dissent against the Supreme Court’s decision striking down most of Arizona’s anti-immigrant law: his railing at President Barack Obama’s executive order stopping the deportation of immigrants brought here as children (which wasn’t remotely the subject of the case at hand) or his basis for upholding Arizona’s law—that Arizona is a sovereign state with the rights generally claimed by nation-states.

Memo to Jan Brewer: You Had a Bad Day Monday

Garrett EppsJun 25, 2012
(AP Photo/Evan Vucci)

Governor Jan Brewer applauded Monday’s decision in Arizona v. United States for upholding “the heart of S.B. 1070.”

Wrong.

In an opinion by Justice Kennedy, the Court struck down the three provisions that prescribed punishment for the undocumented. It upheld one provision—but made clear that, unless Arizona courts themselves limit the measure, that one is likely to fail an as-applied challenge once it goes into effect.

Supreme Court Strikes Most of Arizona Immigration Law, Making Scalia Very Angry

Scott LemieuxJun 25, 2012

The oral arguments earlier this year on the SB-1070, the infamous Arizona immigration law, made it difficult to read how the Court was going to rule on most of its provisions, although the Court seemed on balance more sympathetic to Arizona's position. Given how things looked after that, today's decision in Arizona v. United States must be considered a pleasant surprise.

The Court’s Scott Walker Moment

Garrett EppsJun 21, 2012
(AP Photo/Alex Brandon)

On First Amendment Thursday, the conservative majority on the Supreme Court delivered an unsubtle warning to public employee unions: You are living on borrowed time.

Diluting the Sixth Amendment

Scott LemieuxJun 18, 2012
WikiMedia Commons

None of the most anticipated Supreme Court cases remaining this term—on health care, immigration, or "fleeting expletives" on broadcast television—came down today. But we did get a Sixth Amendment ruling that is both important in itself and tells us something important about the justices on the Court.

The End of 5-4

Paul WaldmanJun 06, 2012
The Supreme Court in 2010.

Of all the things we talk about during a presidential campaign, the Supreme Court probably has the lowest discussion-to-importance ratio. Appointing justices to the Court is one of the most consequential privileges of the presidency, one that has become more important in the last couple of decades since the Court has become more politicized. But there isn't a great deal to say about it during the campaign, beyond, "If we lose the election, we'll lose the Court." The candidates aren't going to say much of anything about whom they'd appoint other than a bunch of disingenuous bromides ("I'll appoint justices who will interpret the law, not make law!"), and we don't actually know who's going to retire in the next few years, so in the campaign context there isn't much to be said .

But if there's anything that ought to make you afraid of a Mitt Romney presidency, it's this.

Judicial Review Doesn't Mean What You Think It Means

Garrett EppsApr 09, 2012
(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,

Single-Payer or Bust

Striking down the individual mandate leaves only one of two options: adopt a system in which government pays for health care, or do nothing.

Steve EricksonMar 30, 2012
(AP Photo/Susan Walsh)

The solution of any geometric problem begins with an assumption, and the assumption in this week’s political geometry is that the Supreme Court will overturn the Affordable Care Act that first opponents, then the rest of us, have come to call Obamacare. This may or may not come to pass. Judicial history is rife with Supreme Court oral arguments that seem to go one way only for the decision to go another. The great irony of Obamacare, of course, is that its most controversial provision, and the thing about it that has rallied conservatives against it, was itself a conservative article of faith for the past two decades right up to the moment that Barack Obama embraced it; and the thing about it that has rallied conservatives against it is the notion—originally advanced as a response to Clintoncare by the right-wing Heritage Foundation and then championed until as recently as three years ago by Republicans, including former Massachusetts governor Mitt Romney and former speaker Newt Gingrich—that the government could and should compel individuals to take responsibility for buying their own health insurance. The right liked this idea precisely because it put the financial onus of health care on individuals rather than where President Bill Clinton believed it belonged: on the businesses that employ individuals.

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