Law

Roberts's Switch in Time

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. 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

(Flickr / freefotouk)
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...

Reading the Tea Leaves in the Supreme Court Opinions

Jaime Fuller
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? In his bench dissent, Justice Anthony Kennedy stressed that the act had been so mutilated by the Court’s decision that it should be struck down in its entirety. That struck me at the time as odd. The Medicaid expansion, as I explained yesterday, is an important part of the act. Even so, it’s not the heart of it—that was the individual mandate. The government had argued that, if the Court struck the mandate, it should also strike the provisions guaranteeing that the people with “preexisting conditions” can’t be turned down for insurance and barring insurers from discriminating...

Court Stays Clear of Tinkering with the First Amendment

(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. United States v. Alvarez was second banana on the Supreme Court stage Thursday, blasted out of the headlines by the stunning decision upholding the Affordable Care Act. But the case had been closely watched in the First Amendment community. That’s because it represented an attempt by the government to find a brand-new, gaping hole in free-speech protection—a First Amendment exception for liars like Alvarez. Alvarez, as has been reported earlier , is a half-crazed poseur who likes to claim, among other things, to have played for the Red Wings, to be the ex-husband of a Mexican movie star—and to hold the...

What’s So Radical about Same-Sex Marriage?

(Flickr / City of West Hollywood)
Two days ago I wrote about David Blankenhorn, longtime “traditional” marriage proponent who reluctantly announced he will no longer oppose same-sex couples’ freedom to marry. I examined his reasoning, because I believe it’s important to understand the logic of those with whom we disagree. And I took issue with Richard Kim’s response at The Nation , which I took to represent the radical/progressive wing of the LGBT movement, which has long groaned at the focus on marriage equality. I got some heated critiques about that post. So yesterday I dug up my longtime agreement with Blankenhorn that allowing same-sex couples into the institution transforms its meaning, furthering the institution’s philosphical and legal shift toward symbolizing gender equality and the separation of sex and babies. My goal yesterday: explain how progressive this shift actually is. But today I’m going to take issue with myself—hey, I’m just talented that way—and argue that there’s a way that Kim, Lisa Duggan,...

Supreme Surprise

(AP Photo)
The verdict of the Supreme Court upholding nearly all of the Affordable Care Act is a victory to be savored in the full knowledge that it may be only temporary and includes potentially damaging changes in constitutional interpretation. It is a victory, first of all, for the millions of people excluded from health insurance who stand to gain protection despite their medical history or low incomes. It is a victory for the rule of law in the face of a group of partisan conservative justices who want to immobilize federal power in social policy. It is a victory for the millions of people who have struggled for decades to achieve equal access to health care. And, not least, it is a victory for President Barack Obama and the Democrats in a critical election year. In fact, the outcome of the election will determine the ultimate significance of the Court’s decision. If Mitt Romney and the Republicans win in November, not only will they repeal the main provisions of the Affordable Care Act;...

If Texas Doesn't Expand Medicaid, Two Million Will Be Without Options

(Flickr/ José Goulão)
It's no secret there's a health-care crisis in Texas. The state has the biggest uninsured population in the country with around 6.2 million—or a quarter of all residents—lacking insurance. As a Kaiser Health News report highlighted , poor and uninsured Texans must sometimes wait more than 24 hours in emergency rooms, where treatment is most expensive, while more cost-effective health-care options, like preventative care, are out of reach. The Affordable Care Act was supposed to change all that. It offered new avenues for health-care coverage to people at all income levels by expanding Medicaid. But yesterday's Supreme Court decision made it optional for states to expand their Medicaid coverage. "There's going to be a donut hole in the middle if a state doesn't proceed," says Edwin Park, vice president for health policy at the D.C.-based Center on Budget and Policy Priorities. In Texas, if the state chooses not to expand its services, almost two million people may be stuck in limbo—...

Sometimes a Loss Is Just a Loss

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 : Roberts' genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress' power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade. According to Scocca, Roberts engineered a big win for conservatives by fundamentally changing the law but doing so in a way that his opponents couldn't respond—a trick pioneered by Chief Justice John Marshall in Marbury v. Madison . If Roberts planted a time...

Give Me Broccoli or Give Me Death!

Scenes from the Supreme Court

Jaime Fuller
It’s only a bit after 8 a.m. and Russell Mokhiber is shouting at a belly dancer in front of the Supreme Court of the United States. Granted, it’s out of concern—it’s the kind of Washington, D.C., summer morning when it feels like the air is one giant dog’s tongue licking your body, and the lady in question, Angela Petry—a middle-aged sandy blonde with the abdominal muscles of an 18-year-old pageant queen—is his wife. She’s been dancing up a storm, a whirl of skin, red and blue silk scarves, and beads dripping from her bosom. “We need to pace ourselves, we’ve got three hours,” Mokhiber says, and he’s right, because the belly dancing is quickly becoming the media darling of the protesters gathered at the steps of the Supreme Court on Thursday morning to hear the ruling by the justices on President Barack Obama’s landmark health-care legislation. Mokhiber, of Berkley Springs, West Virginia, has come as part of Single Payer Action, a group that advocates for striking down the individual-...

Roberts's Solution to a Non-Problem

(Flickr/dbking)
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. The federal government can’t coerce states by threatening to cut off existing program funding as a penalty for refusing to accept more money for new programs, the important opinion said. That means the ACA can go ahead as planned—because the...

Same-Sex Marriage Is a Radical Feminist Idea

Does anyone remember yesterday, before our minds were blown away by watching (on Twitter) Roberts vote to uphold the Affordable Care Act and Kennedy join with the three billygoats to declare the whole thing unconstitutional? I’m having trouble remembering, too. But my notes here say that yesterday I wrote about David Blankenhorn’s decision to support same-sex marriage, and I critiqued (via something Richard Kim wrote at The Nation ) the more progressive faction of the LGBT movement for their long-ago hopes of rerouting the marriage equality movement into a more general attempt to overhaul marriage and family law. That post yesterday took some hits, in ways that suggested I hadn’t accurately conveyed my beliefs. In particular, Chris Geidner wrote, in a series of tweets that I’ll condense here: Whoa: @ejgraff takes on @RichardKimNYC (& many others) in an almost stridently conservative piece: ampro.me/Qk8iNv. The piece, in several places, was dismissive of what was a far more even...

A Tale of Two Justices

WikiMedia Commons
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. Well, score one for the optimists. Today, the Supreme Court upheld the Patient Protection and Affordable Care Act in its entirety. While this outcome was not shocking, the vote lineup could be to many observers given that the final vote was 5-4. Chief Justice John Roberts joined the Court's four liberal members to uphold the PPACA, while frequent swing voter Justice Anthony Kennedy joined a remarkably radical dissent. The ultimate effects of NFIB v. Sebulius remain uncertain, but at the very least the case compels a re-evaluation of both Roberts and Kennedy. While Chief Justice Roberts deserves substantial praise for not striking...

It's Roberts's Court Now

(AP Photo/Nick Ut)
(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. It’s a good day for conventional wisdom when it is half right, but that the Affordable Care Act (ACA) survived, 5-4, with a majority opinion by Roberts and an angry dissent by Kennedy was an outcome few people would have predicted. All told, it was a morning of surprises. It was a good morning for the Obama administration, whose signature policy initiative (for good or bad) survived largely intact. But it was a better day for John Roberts, who displayed John Marshall-level command of the Court, and produced a result that moves current jurisprudence only a little—but will enable it to move far to the right if a...

Why It's Still in States' Interests to Expand Medicaid

(Flickr/ernstl)
For supporters of the Affordable Care Act, it was hard to hear—over the cheering—anything besides the fact that the Supreme Court today kept the law almost entirely intact. But the Court did make a slight change to a crucial part of the ACA: Medicaid expansion. Under the law, by 2014, states are supposed to extend their Medicaid programs to cover people under 65 with incomes up to 133 percent of the federal poverty line. An analysis from the Center on Budget and Policy Priorities shows that means 17 million more people would have access to health care over the next 10 years. Before today, it looked like states didn't have much choice in the matter. If they didn't make the necessary expansion, they would lose all federal Medicaid dollars. In their brief, states argued that wasn't much of a choice—federal Medicaid grants simply constitute too much money to lose. Back in February, Timothy Jost had a very helpful explanation of the states' argument on this point in Health Affairs . As he...

Republicans Will Soon Stop Talking about Health Care

foxnation.com
The Supreme Court's decision on the Affordable Care Act (ACA), particularly Justice John Roberts siding with the liberals, took most everyone by surprise this morning. But if you tune in to Fox News or surf around the conservative blogs, they seem to be taking it somewhat philosophically. They're not happy, but there's little rending of garments and gnashing of teeth. Mostly they're saying, well, we'll just have to win this in November ( see here for a representative sample). There's also a good deal of discussion of the fact that the Court declared that the requirement to carry health insurance is permissible under the government's taxing power. After all, if there's one thing Republicans know how to do, it's complain about taxes. Mitch McConnell quickly took to the floor of the Senate to condemn the decision, and no doubt Mitt Romney will soon say something so vague that no one can determine what he actually thinks. But here's my guess: Republicans are going to drop health care very...

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