Earlier this week, the Obama administration decided not to ask the whole 11th Circuit Court of Appeals to hear a constitutional challenge to the Affordable Care Act (ACA), shortening the timetable for the various cases against the ACA reaching the Supreme Court and, according to some, setting the Court to rule smack-dab in the middle of election season. Earlier this year, a three-judge panel from the 11th Circuit Court of Appeals had ruled the law's "individual mandate" -- the provision requiring people to pay a tax if they do not purchase insurance -- unconstitutional. But before we speculate whether and when the Supreme Court will uphold the ACA, we should consider the question of whether it will decide to decide at all.
Early in 2008, supporters of Wisconsin Justice Louis Butler heard that someone was looking for mug shots of his former clients, the accused criminals whom Butler had represented as a public defender back in the 1980s. Attack ads were brewing against Butler, who hoped to hold his state supreme court seat that April in an election against a well-financed opponent. But one person from that era whom Butler's campaign never expected to see in hostile ads was defendant Reuben Lee Mitchell. Butler had lost that case, after all.
In 1940, a small group of children, bullied by intolerant adults, sought the protection of the United States Supreme Court. The nation's highest court spat in their faces. The results were so violent and tragic that the Court reversed itself three years later, trying to call a halt to the injustice it had spawned.
This story--the story of Minersville School District v. Gobitis and West Virginia State Board of Education v. Barnette--still teaches lessons today about the quality of justice, the character of judges, and the role of courts in spurring, or retarding, social change.
The Iowa Supreme Court publishes, on average, a little more than 100 decisions a year. Each ruling goes online first thing Friday mornings. When Varnum v. Brien went live at 8:15 A.M. April 3, 2009, the court's website crashed when more than a million visitors tried to read the opinion. In a unanimous decision, the seven supreme court justices--five Democratic and two Republican appointees--had ruled that Iowa's ban on marriage for same-sex couples violated the equal-protection clause of the state constitution. When county clerks began issuing marriage licenses three weeks later, Iowa became the third state with legalized same-sex marriage.
China censors Google and other search engines to prevent activism. During the Arab Spring then-Egyptian dictator Hosni Mubarak shut down cell-phone service in an attempt to control protesters in Tahrir Square. Can we now add to this list of oppressive regimes the transit authority in the San Francisco Bay Area?
Bay Area Rapid Transit police rushing to quash a protest may have trampled on first amendment rights.
Aug 18, 2011
(AP Photo/Noah Berger)
China censures Google and other search engines to prevent activism. During the Arab Spring then-Egyptian dictator Hosni Mubarak shut down cell phone service in an attempt to control protestors in Tahrir Square. Can we now add to this list of oppressive regimes the transit authority in the San Francisco Bay area?
This week, the Supreme Court threw out a class-action lawsuit against retail giant Wal-Mart, which had been accused of systematically discriminating against women. As many commentators have noted, the Court's broad ruling will make it more difficult for victims of discrimination to file class-action suits -- and, as National Journal reports, probably spur more, and costlier, litigation.
This week marks the 46th anniversary of the landmark Supreme Court reproductive-rights case Griswold v. Connecticut, in which the Court struck down Connecticut's ban on the distribution and use of contraceptives (at least for married couples). The decision was important not only in itself but because it laid the framework for other important decisions like Roe v. Wade, which came less than 10 years later.
Last week, Senate Republicans successfully filibustered the nomination of Goodwin Liu, a professor of law at the University of California, Berkeley, to the 9th Circuit Court of Appeals. Regrettably but understandably, Liu has since withdrawn his nomination. Even though Republicans framed him as a runaway liberal judicial activist, Liu is a distinguished nominee sufficiently within the mainstream to earn the endorsement of such well-know leftist radicals as Ken Starr and John Yoo. On the merits, Liu should have been appointed, but beyond that, this filibuster is a symptom of much deeper problems with the way we nominate and appoint judges.
This week, the Supreme Court continued its long-standing assault on constitutional protections in service of the war on drugs (or, as it might be more accurately described, the war on some classes of people who use some types of drugs).
As the case against the Affordable Care Act shows, it is progressives -- not conservatives -- who should pride themselves on fealty to the Constitution.
Virginia Attorney General Ken Cuccinelli leaves federal court after a hearing before the 4th Circuit Court of Appeals. (AP Photo/Steve Helber)
The Fourth Circuit Court of Appeals has been a conservative stronghold for the past two decades. But between the resignation of conservative icon Michael Luttig in 2006 and four confirmed Obama appointments, it now has a majority of Democratic appointees. These odds combined with luck of the draw this past week, when a computer selected three Democratic appointees -- Clinton appointee Diana Gribbon Motz and Obama appointees Andre Davis and James Wynn -- to hear the constitutional challenge to the Affordable Care Act (ACA). Given that the challenge will ultimately head to the conservative Supreme Court, Tuesday's oral arguments were not necessarily indicative of the ultimate fate of the ACA.
Earlier this year, a unanimous Supreme Court rejected claims by AT&T that the corporation had "personal privacy" rights that should be protected. Chief Justice John Roberts capped his opinion for the Court with a flourish: "We trust that AT&T will not take it personally." In the wake of this case and a few other losses suffered by business interests, some Court observers argued that the Roberts Court's reputation as a champion of corporate interests is unearned.
But this week's AT&T decision reminds us just how corporate friendly this court really is.
The motion to vacate a gay judge's ruling in the Proposition 8 case isn't just homophobic. It could open minority judges up to challenges in all kinds of cases.
Chief District Judge Vaughn R. Walker, of the Northern District of California (AP Photo/Elaine Thompson)
Earlier this month, Vaughn Walker -- the federal judge in California who ruled that Proposition 8, the state's same-sex-marriage ban, was unconstitutional -- confirmed rumors that he was gay and in a long-term relationship. Seizing on this revelation, those defending the ban filed a motion on Monday to vacate his landmark ruling, claiming he should have recused himself from the case.
Supreme Court Justice Samuel Alito is congratulated by Chief Justice John Roberts after his ceremonial swearing-in in 2006. (AP Photo/Charles Dharapak)
On Tuesday, the Supreme Court ruled 6 to 2 that a lawsuit against Virginia officials who violated federal law by failing to cooperate with an investigation by the Virginia Office for Protection and Advocacy into deaths at the state's mental-health facilities could proceed. The case, VOPA v. Stewart [PDF], is minor in its scope, but given that the Bush-appointed conservative justices, John Roberts and Samuel Alito, split from the conservative wing in a passionate dissent, it serves as a telling example of the sharp differences between the old and new guard.
