American politics is in trouble. A tsunami of unaccountable, untraceable political money is overwhelming the Republican race for the presidential nomination and threatens to do the same to the fall election. For many people, especially progressives, the culprit is easy to name: the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which swept away any limits on election-advocacy ads by corporations, unions, and “independent” political-action committees (PACs) and issue groups. Many progressives believe that Citizens United “made corporations people” and that a constitutional amendment restricting “corporate personhood” will cure this political ill.
(AP Photo/Orange County Jail via The Miami Herald, File)
You know, by now, that George Zimmerman has been arrested and charged with second-degree murder. I am relieved. Like so many, I’ve been just crazed over the fact that an armed man could follow an unarmed teenager walking on the street, shoot and kill him, and not be arrested—all in a way that suggests that it happened because the teenager was black and the shooter was not.
Orin Kerr outlines a five-part test for whether a decision can be called "judicial activism" as a means of assessing whether the label could be fairly applied to a decision striking down the Affordable Care Act. Roughly, the criteria are: 1) whether the decision was motivated by the policy preferences of judges; 2) whether it expands judicial power for future cases; 3) whether it was inconsistent with past precedents; 4) whether it struck down a "law or practice"; and 5) whether the decision was "wrong." On three of the first four criteria, Kerr essentially agrees that a decision striking down the ACA would be "activist." On points No. 3 and No.
Yesterday, Ben Smith quoted a conservative lawyer offering a way the Supreme Court's conservative majority may think about striking down the Affordable Care Act. Essentially, this lawyer said, they think that the last 70 years of the Court's interpretation of the Constitution's commerce clause, which underlies much of what the modern American government does, is a giant fraud perpetrated by liberals. Even though they know they can't toss out that last 70 years all at once, they have no problem finding some ridiculous justification for striking down the ACA, no matter whether they really believe it or not. "You have built a fantasy mansion on the Commerce Clause," the lawyer tells Smith.
The right’s outrage over Obama’s comments on the Supreme Court are hypocritical. All Obama said was the truth: It would, indeed, be unprecedented for the Supreme Court to overturn Obamacare, signifying a new interpretation of the powers granted to Congress under current Commerce Clause precedent. The president in no way insinuated that he would ignore the ruling, a fact verified by Attorney General Eric Holder in response to an outlandish request by a Reagan appointee on the Fifth Circuit. It was, however, somewhat disheartening to see Obama questioning the court by terming them an “unelected group of people,” as that legitimizes language typically employed by conservatives anytime the courts read the Constitution as protecting some form of social equality.
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
Connecticut may become the fifth state in the last five years to end the death penalty. The state Senate will likely vote today on a measure that would end capital punishment in all future cases. However, it would not have a direct impact on any of the 11 people currently on death row. If the Senate approves the measure, it will probably have an easy path forward; both the House and the governor support the repeal. But the vote will almost certainly be very close.
Is there an LGBT legal organization that hasn’t filed a challenge to the Defense of Marriage Act? Yesterday, Immigration Equality got on the bus, with a lawsuit challenging DOMA’s Section 3 (which bars the federal government from recognizing same-sex marriages) because it prevents American citizens from sponsoring their same-sex spouses for green cards. When my cousin Laura married a Dutchman, Erik, in a beautiful ceremony at the UN, no one worried that they wouldn’t be able to live together here; of course she’d be able to get him a visa to stay, even if he lost his job.
Under the Fourth Amendment of the Constitution, searches and seizures must be "reasonable." Albert Florence was subjected to an invasive search—including an inspection of his genitals—after being detained following a routine traffic stop for an outstanding arrest warrant (that turned out to be invalid) before being moved to a correctional facility. The state had no evidence that he was carrying any dangerous contraband. Not only did it not have a warrant, not only did it not have the probable cause that would have been necessary for a warrant, it had no individualized suspicion at all. Florence had no reason to believe he would be arrested, and hence no reason to have weapons hidden in his body cavities. Surely such an intrusive search under these circumstances is "unreasonable," right?
I have a new email correspondent—let’s call him “Joe,” because he doesn’t want to be named—who has suggested to me that the media storm about Trayvon is more than a little out of control. Joe writes: why isn’t there coverage to how many more young black men die at the hands of other black men? Why isn’t there a national uproar when black men murder white men? (He’s sent me clippings of a trial in one such Florida murder.) I’ve gotten hate mail, too, but from the exchanges we’ve had, my sense is that Joe’s different; he’s seriously trying to have a conversation.
So let me say this: what’s deeply upsetting to me is that, more than a month after a teenage boy was killed while walking home with Skittles, George Zimmerman has not even been arrested.
Given the hostility the Republican appointees on the Supreme Court showed to the Affordable Care Act during oral arguments this week, some progressives are seeking a silver lining. At least, some have argued, striking down the ACA would substantially undermine the legitimacy of the conservative-dominated federal courts.
Nobody was doing well by the time oral arguments in the Health Care cases ended at 2:30 p.m. Wednesday. Some Justices were sniping back and forth. The lawyers were showing the strain.
And Justice Antonin Scalia was telling jokes.
“[Y]ou know—the old Jack Benny thing, Your Money or Your Life, and, you know, he says ‘I'm thinking, I'm thinking,’” Scalia said from the bench. “It's—it's funny, because it's no choice. ... But ‘your life or your wife’s,’ I could refuse that.”
“He’s not going home tonight,” Justice Sonia Sotomayor threw in as the crowd laughed.