There is a debate among liberal intellectuals about whether it's appropriate to urge Ruth Bader Ginsburg to step down with the Democrats still in control of the Senate and White House. It's a discussion that brings up a lot of fascinating questions of public obligation and the respect due to individuals. But the key takeaway should be this: The decision about whether to retire should be taken out of the hands of individual justices.
Senate Republicans have continued their blockade of nominations to the powerful D.C. Circuit Court of Appeals. On Tuesday, the GOP minority blocked a vote on the nomination of Cornelia ("Nina") Pillard to the D.C. Circuit. Fifty-six senators voted in favor of moving forward with the nomination. Pillard is typical of the circuit court judges the Republican minority has had a particular distaste for. First, she's not a white male. And second, she has utterly mainstream legal views that hardly meet the "extraordinary circumstances" the Senate allegedly requires to filibuster a judicial nominee.
On the first point, Jennifer Bendery of Huffington Post observes that the three women the GOP minority has now prevented from getting up-or-down votes are part of a trend:
Ten of the sidelined judicial nominees are women, two are openly gay and nine are minorities (seven are African American, one is Asian American and one is Native American). The lone executive nominee being blocked right now, Rep. Mel Watt (D-N.C.), is African American.
This is not to say that the fact Republicans are filibustering a disproportionate number of these nominees because of their race or gender. That they're nominees of a Democratic president was already damning enough evidence of their inability to carry out the law, in the GOP's opinion. Nonetheless, irrespective of their motivations, the result of Republican obstructionism is to make the federal courts less diverse than they should be.
One 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.
The opening lines of Antonin Scalia's dissent in United States v. Windsor—where a 5–4 majority of the Supreme Court overturned the 1997 Defense of Marriage Act on equal protection grounds—are straightforward: "We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation."
Ten years ago, when the Supreme Court ruled that laws outlawing sodomy between consenting adults were unconstitutional in the case of Lawrence v. Texas, Justice Antonin Scalia wrote a blistering dissent. "What a massive disruption of the current social order," he practically wailed from the page. He said that the Court had "largely signed on to the so-called homosexual agenda," and contrasted the Court with the good people of America, who "do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive." And perhaps most notably, Scalia lamented that under the rationale the Court's majority was using, the government wouldn't be able to prohibit gay people from getting married. To each other!
He was right about that, anyway. But his dissent in today's case invalidating the Defense of Marriage Act is a somewhat different beast. Scalia spends the first 18 pages of his 26-page dissent far from the moral questions that had so animated him before; instead, he confines himself to arguing that the Court shouldn't have decided the case at all. Scalia is apparently deeply concerned that the Court is butting its nose in where the legislature should have the final say (more on that in a moment).
But when he finally gets to discussing the merits of the case, Scalia does not disappoint.
Chief Judge David Sentelle’s recent opinion in Noel Canning v. NLRB holding President Barack Obama’s recess appointments unconstitutional is a trenchant reminder that the D.C. Circuit is, as is often said, the nation’s “second most important court after the Supreme Court.” It has also been, historically, a stepping stone to the high Court. The court now faces four vacancies among 11 judgeships with Sentelle’s February 12 assumption of senior status. But the Obama administration is the first in decades which confirmed no D.C. Circuit judge and has only submitted two names for consideration. The importance and complexity of the circuit caseload means it requires all eleven judges to deliver justice. For this reason—and to increase ideological balance on the court, which has four active and five senior judges whom Republican presidents appointed—Obama and the Senate must expeditiously fill the D.C. Circuit openings.
While the Supreme Court's decision to uphold most of the Affordable Care Act in NFIB v. Sebelius was generally good news, the decision did have one unfortunate side effect. The Court limited the use of federal spending power with respect to Medicaid, permitting Congress to withhold new grants but not existing Medicaid funds from states if they failed to adopt Obamacare. In other words, governors can reject new federal funds to implement the health-care law without losing the rest of their Medicaid money.
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.
Two features of the scene in the courtroom at the Supreme Court Thursday flow together to spark curiosity. For one, the justices appeared unusually agitated. Justice Sonia Sotomayor looked as if she’d been up all night, for example, while (as Tony Mauro also noted) Justice Antonin Scalia was downcast and tight-lipped. Had something happened in the days or hours before the opinion to spark this emotional response?
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.
On the fourth day of the Battle of Gettysburg, General Richard S. (“Bald Dick”) Ewell, riding behind the lines, was hit in the leg by a Union sniper’s bullet. Unfazed, the one-legged general remarked, “It don't hurt a bit to be shot in a wooden leg.”
It may be that the federal government was shot in a wooden leg today. Overall, that’s true—the ACA survived, by one vote, a case that could have voided it in its entirety and wreaked havoc on federal power generally. But in particular, in the Court’s major new cutback on federal power—the limits on the use of Congress’s spending power to convince the states to sign on to an expanded Medicaid program—the federal government was wounded by being forbidden to do something it really never wanted to do.
John Roberts imagined himself as a consensus-builder after his confirmation to be the 17th chief justice of the Supreme Court, a justice in the mold of John Marshall charged with alleviating divisions on the Court by advocating judicial modesty. Some progressive observers took these claims very seriously. I was inclined to view them as essentially fraudulent.
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.
One of the many striking things about the Supreme Court's infamous Citizens United decision is how poorly the facts of the case fit the extremely sweeping holding. The potential First Amendment issues involved with campaign finance regulation exist on a spectrum. Political editorials, even when published in corporate-owned media and attempting to influence the campaign, are obviously "pure speech" that can be restricted only in extraordinary circumstances. Direct donations to candidates, on the other hand, are further removed from pure speech and also raise serious problems of democratic equality, so the leeway that can be given to government to restrict them might be greater.