Law

Sorry, Still Not Over Bush v. Gore

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Antonin Scalia was a guest on Piers Morgan's show last night, and he was relatively entertaining and at times even said things I agree with. For example, even in the wake of the Republican bait-and-switch on the DISCLOSE Act, Scalia held firm to his previously expressed view that it's permissible and desirable for people making large political donations to have these donations disclosed. This is a welcome contrast to the Sarah Palin/Mitch McConnell theory of the First Amendment, under which powerful actors trying to influence the political process have the right to be shielded from criticism or any other consequences. On the other hand, there is a self-congratulatory aspect to Scalia's pronouncements about jurisprudential theory that remain grating in light of his actual work on the Court. As always, he presents himself as "The Last Truly Principled Judge in America," adhering to the fundamental principles of the text of the Constitution while other judges preempt democracy by...

Penn State Redux

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How in the world did Penn State allow assistant coach Jerry Sandusky to molest children—sometimes on its grounds—for 11 years without notifying authorities? That's the question the institution hired former FBI director Louis Freeh's consulting firm to investigate in-depth. This morning, Freeh's task force released its independent review—which is just as damning as you can imagine, saying that all the key people, Paterno included, "repeatedly concealed critical facts" to protect the institution rather than the victims. Here are the key findings from the executive summary: Four of the most powerful people at The Pennsylvania State University—President Graham B. Spanier, Senior Vice President-Finance and Business Gary C. Schultz, Athletic Director Timothy M. Curley and Head Football Coach Joseph V. Paterno—failed to protect against a child sexual predator harming children for over a decade. These men concealed Sandusky's activities from the Board of Trustees, the University community and...

Could the Voting Rights Act Be Struck Down?

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Texas doesn't have an air-tight case when it comes to the stringent voter-ID law that's currently having its week in court. Even Fox commentator Judge Andrew Napolitano said he expects the state to lose . And according to Politico , the Department of Justice (DOJ) has promised to show not only that the voter-ID law will have a discriminatory effect but that such an effect was intentional. Texas's case, meanwhile, rests on two different arguments: First, that the state needs a voter-ID law to combat voter fraud, and second, that the state should not have to obtain preclearance—as required by the Voting Rights Act—for changes in its election law in the first place. After failing to do so in years past, Texas's GOP-dominated legislature passed a stringent voter-ID law in 2011. Under this law, only a few forms of identification are allowed: driver's licenses and state-issued identification cards, military IDs, citizenship certificates (with photos), passports, and handgun licenses. But...

When Is Judicial Behavior Political?

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The debates about Chief Justice Roberts’s motivations for his health-care opinion rage on with new leaks appearing almost every day. Randy Barnett responds to Jonathan Adler’s attempt at showing that Roberts’s opinion is quite consistent with his past judgments: But this does not [make] his bending himself into a pretzel to uphold a law when the screws were put to him any less political. [..] 8 justices acted on principle: 4 on good principles and 4 on bad principles. This probably reflects the majority view among legal scholars, although they differ on precisely which four justices acted on “good principles.” Nonetheless, to imply that this principled behavior is non-political is a bit silly. Indeed, Barnett writes that: It is hard to imagine Republican politicians citing John Roberts as the type of justice they favor nominating in the future (as many did up until now). Whether or not the decision does lasting damage to the Constitution and the Court, however, itself will depend on...

Should Liberals Be Mad at Kagan and Breyer?

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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. Despite the consequences and dubious logic of this holding, however, it was joined by two of the Court's Democratic appointees: Clinton nominee Stephen Breyer and Obama nominee Elena Kagan. Given the escalating conservative outrage over Roberts's joining with the Court's more liberal faction on the other key elements of the case, several writers have wondered: Where's the liberal outrage against Breyer and Kagan? "In contrast to all the weeping and wailing that has accompanied what...

Florida's Voter Purge: What the Hell?

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With a tangle of lawsuits and legal complexities, it's easy to get lost in the minutiae of Florida's voter-purge debacle. Last week, as a U.S. District Court ruled on one of the disputes between the Department of Justice and the state of Florida, most of the media discussion focused on who'd won and who'd lost in the rather nuanced court opinion. More legal action comes next week, and the discussion will likely be similar. At its core, though, this is a story of how Florida's secretary of state cast suspicion on thousands of perfectly legitimate voters. Waving around a list of 180,000 potential non-citizens and sending out a sample of 2,700 to elections officials, the state's methodology was deeply flawed. Many of those identified had immigrated to this country and completed the arduous path to citizenship. Now they're at risk of being kicked off voter rolls. With voter-ID laws gaining popularity in states across the country, the purge constitutes a new front in the battle to protect...

What's the "Chief Purpose" of Marriage?

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Last week, I laid out some of my ideas about what is and is not radical about same-sex marriage, boiling down a few of the chief concepts I've argued in public over the past 15 or so years. Maggie Gallagher, chief nemesis of the marriage-equality movement, referred to one of those three posts at The Corner, National Review 's group blog. In response, I noted that we agree , in small part, that allowing same-sex pairs to marry continues to nudge the meaning of the institution in the direction of separating sex and diapers. Maggie responded, paraphrasing me incorrectly (which, all right, isn't misquoting exactly, but which still puts words in my mouth that I would never say, imply, or think) this way: E. J. says we agree that gay marriage in some nontrivial way disconnects marriage, sex, and diapers. It reduces the connection between marriage and its erstwhile chief public purpose: regulating responsible procreation. No, Maggie, that's not what I said. I said that same-sex couples are...

Nine Percent of Pennsylvanians May Not Be Able to Vote for Lack of ID

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The debate around voter ID laws is generally one about protection versus disenfranchisement. Advocates of the laws, which require photo identification to vote, often say the law won't have an impact anyone who's voting legally. In Pennsylvania, the Secretary of the Commonwealth assured lawmakers that 99 percent of voters in the state had the necessary identification, and promised that " No one entitled to vote will be denied that right by this bill. " Her views were echoed by Republican lawmakers throughout the state who pushed for the measure. You need a photo ID for everything these days, the logic seemed to go, so why not voting too? After all, who doesn't have a photo ID? Well, a lot of people. The Secretary of the Commonwealth put out a press release Tuesday announcing that 9 percent of registered voters didn't have photo IDs from the state Department of Transportation. Pennsylvania's voter ID law, which became law March of this year, allows voters to use a variety of types of...

The DOJ Takes Aim at DOMA

Late on Tuesday, when just about everyone had already left for their Fourth of July celebrations, the Department of Justice announced that it was asking the Supreme Court to take two DOMA lawsuits, promptly. The first was no surprise: You know that the First Circuit already, very cautiously, declared in the Massachusetts cases ( Gill v. OPM ) that DOMA’s Section 3 was unconstitutional. That’s the section that says that, for federal purposes, marriage is between one man and one woman—and therefore that the United States will refuse to recognize any state’s decision to marry same-sex pairs. It’s because of DOMA Section 3 that I’m married in Massachusetts but not in the United States. If that were overruled, the federal government would have to treat me as married, for purposes such as taxes, social security, inheritance, and so on. I wouldn’t have to file as single hither but as married yon. You recall the backstory here, right? Last year, Obama’s Justice Department declared that it...

Graduating from the Electoral College

We've been electing our president the same way for 200 years. Why do some say it's time for a change?

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We all know the states where the 2012 presidential election will be decided. Not New York, which hasn’t voted Republican since 1984, a year when only Minnesota could muster support for Walter Mondale. Not Texas, where you have to stretch back to 1976 to find an election where a Republican victory wasn’t a given. The battlegrounds on which this year’s presidential race will be waged are Iowa, Ohio, North Carolina, Virginia, Pennsylvania, Colorado, Nevada, Florida, and Wisconsin, and if you don’t live there, you can forget about the presidential campaigns giving you an ounce of attention. You’re either a given in the candidate’s electoral college tally, or they know you’re out of their league. Is it unfair? That majority of states who get ignored election after election sure thinks so. So why, after over 200 years, are we still using the Electoral College? Let’s explain. Who thought up the Electoral College in the first place? Blame the founders. If you remember your history lessons...

A Crack in the GOP's Support for Voter-ID Laws

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There's little question what the political calculus behind voter-ID laws is. Advocates argue that the laws, which require government photo identification to vote, are necessary to prevent voter fraud—despite there being virtually no evidence that such fraud is a problem. In practice, the laws will disproportionately have an impact on poor people and those of color, two Democratic-leaning groups that are less likely to have such IDs. Predictably, Republicans have been pushing for these laws, while Democrats generally oppose them. That is, until earlier this week, when Michigan Governor Rick Snyder shot down his own party and vetoed a state voter-ID law . He also vetoed laws that would have made it harder to conduct voter-registration drives and to confirm U.S. citizenship for voters. All three—pushed by Republican Secretary of State Ruth Johnson and sponsored by Republican lawmakers—would likely have dampened turnout, particularly among disadvantaged communities. During hearings on the...

Mississippi's Threat to Roe v. Wade

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As Salon 's Irin Carmon reports , a Republican appointed district-court judge has prevented a new statute that would force the only remaining abortion clinic in Mississippi to close. (The new law was necessary because, despite the best efforts of past Mississippi legislatures, one lone clinic in Jackson has managed to heroically persevere through a maze of state restrictions.) The stay is temporary, and the issue will presumably have to be resolved by a higher appellate court, possibly ending with the Supreme Court of the United States. Should this case make it up the appellate chain, it will provide a crucial test for Planned Parenthood v. Casey , the 1992 case that currently controls reproductive-freedom cases. Under Casey , previability abortions cannot be banned, but regulations that do not constitute an "undue burden" are permissible. The implicit premise of the compromise that upheld Roe v. Wade was that while women seeking abortions could be inconvenienced, they could not be...

Can We Take John Roberts's Word at Face Value?

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For years, conservatives have articulated a clear legal philosophy to guide their beliefs about the proper role of the courts and the way judges should arrive at their decisions, much clearer than the philosophy liberals espouse. They said they supported "originalism," whereby judges would simply examine the Constitution as the Founders understood it to guide its interpretation today. They said they opposed "judicial activism," wanting judges to simply interpret the law instead of making their own laws. Liberals always replied that these ideas were a disingenuous cover for something much simpler: conservatives just want judicial decisions that support their policy preferences. They see whatever they want in the Constitution and define "judicial activism" as nothing more than decisions whose outcomes they don't like. The reaction to Chief Justice John Roberts joining the Supreme Court's four liberals to uphold the Affordable Care Act shows something revealing about the conservative...

Roberts's Switch in Time

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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. The most obvious takeaway from the Crawford piece is that there was a fairly substantial rift created on the Court by Roberts's eventual decision to uphold the bill. While some details about the internal deliberations of the Court generally leak out eventually—as clerks have less to fear in terms of reprisals or as court papers are released by retired justices—for these details to emerge less than a week after a decision is handed down is extraordinary. Clearly, some of the...

Judges Take On Climate Skeptics

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Three of the D.C. Court of Appeals’ judges delivered climate-regulation opponents what can only be termed a righteous smackdown last week. Their opinion on the Environmental Protection Agency’s work to regulate greenhouse gases is, as much as any legal opinion can be, a delight to read. From the barely tempered exasperation in the court’s opening salvo—“We begin with a brief primer on greenhouse gases”—to the impatience with the lines of reasoning called upon by industry and its allies in state government—“This argument is little more than a semantic trick”—this legal document is a salve for anyone sick of the protestations against taking any action, ever, to tackle the looming disaster that is climate change. The case at hand combined a mountain of complaints about almost every action the EPA has taken to regulate carbon. The agency began the process in 2007 in response to the Supreme Court’s requirement that it consider whether the Clean Air Act covered greenhouse-gas emissions. In...

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