Law

Bush-Appointed Judge Does the Full Lochner

I've argued that the legal arguments against the Affordable Care Act are just libertarianism in a thin disguise—the arguments fundamentally make very little sense unless they're part of a broader argument about the unconstitutionality of the welfare state. Janice Rogers Brown, the ultra-reactionary appointed by George W. Bush to the prestigious D.C. Circuit Court of appeals, doesn't see any need for the disguise. In a recent concurrence , Brown lamented the fact that the courts no longer arbitrarily substitute their judgment about economic regulations for that of legislatures: The Hettingas’ collision with the MREA—the latest iteration of the venerable AMAA—reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender...

What Does an Abortionist Look Like?

(AP Photo/Richmond Times-Dispatch, Joe Mahoney)
She’s a single, unemployed mother with three children who finds out that she’s pregnant—just after the father has been sent to prison. She says she is distraught at the idea of hurting her kids by adding another child to the family, giving each of them less money, time, and attention, dragging them further into poverty. But she lives in rural southeastern Idaho, a two-and-a-half-hour drive from the nearest clinic in Salt Lake City—and getting an abortion would require two round trips there, because of the mandatory waiting period. So she takes RU-486, ordered online, self-supervised. She freaks out at the fetus’s size, stashes it on her back porch, tells a friend, and gets reported to the police. And, is promptly arrested for inducing her own abortion. To put it mildly, Jennie Linn McCormack doesn’t sound like the world’s most responsible person—except that she apparently had the good sense to realize she was not going to be a good parent to another child. I haven’t interviewed her...

Don't Blame "Corporate Personhood"

(Flickr/watchingfrogsboll)
A merican 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. Citizens United is a bad decision. This obvious fact may even be dawning on the Court’s conservative majority, which is taking a surprisingly leisurely look at American Tradition Partnership, Inc. v. Bullock, in which the Montana Supreme Court directly challenged Citizens United , in essence telling the...

Zimmerman's Fair Trial

(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. Maybe it was self-defense. The evidence I’ve seen sure doesn’t suggest that. Maybe it wasn’t racial at all. Maybe the tough-on-crime prosecutor won’t be able to disprove self-defense, given the now-notorious Stand Your Ground law (do read Mother Jones ’ examination of the money trail behind the law). Maybe the judge won’t be able to stand up to the public scrutiny. Criminal law isn’t perfect. Judges aren’t perfect. Juries aren’t perfect. But at least the evidence will be presented, according to rules, in a public forum. Serious people will attempt to decide whether or not George Zimmerman committed murder. No, we...

Of Course a Decision Striking Down the ACA Would Be "Judicial Activism"

WikiMedia commons.
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. 4, he concedes explicitly (while arguing, plausibly enough, that No. 4 isn't a useful criterion in a country with firmly established judicial review). On No. 1, he all but concedes, arguing that "if the votes line up in the predictable political way, then claims of activism based on argument #1 will be common." Given this, we can go ahead and...

The Fruitless Search for the Supreme Court's Rationale

Flickr/OZinOH
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. "You can hardly blame us if, in one wing of this mansion, down a dusty corridor, we build a fantasy room called 'inactivity,' lock the door, and don't let you in." None of us have any way of knowing if this is what the justices are actually thinking, persuasive as it sounds. But there's something going...

Putting a Limit on Justice

(Flickr/FadderUri)
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. The New Republic ’s Timothy Noah sympathizes with Obama, and offers term limits as a simpler solution: I’ve never liked the idea of term limits for members of Congress, because if a member outstays his or her welcome voters get the...

Judicial Review Doesn't Mean What You Think It Means

(AP Photo / J. David Ake)
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 Dear Judge Smith, Lawyers tell an anecdote about a psychiatrist who finds himself in heaven. St. Peter says, “We’re so glad you’re here, we have a psychiatric emergency!” The psychiatrist is puzzled. “How can that be?” he asks. “Surely the souls of the blessed are free from all pain and torment. Why would they need a psychiatrist?” “It’s not the blessed,” says the saint. “It’s God. He has terrible delusions of grandeur—he thinks he’s a federal judge!” This story came to mind when I learned that on...

Will Connecticut Abolish the Death Penalty?

(Flickr/League of Women Voters)
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. The state has hardly been liberal with the death penalty. In the last five decades, the state has only executed one person, a serial killer who ultimately supported the sentence. There's been talk of repealing the death penalty in Connecticut for a while—the legislature passed a similar measure in 2009 only to have it vetoed by then Governor Jodi Rell. A brutal triple murder in 2007 brought more attention to capital crimes. Two men broke into the home of the wealthy Petit family in Chesire, murdering the mother and two...

How Much Longer Until I’m Equal?

(Flickr/Zolk)
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. But had she married a Dutch woman, Erika, the visa application would be rejected on its face—even though, in both New York and the Netherlands, the marriage was equally valid. That distinction is what the IE lawsuit is challenging. The New York Times has some nice coverage of the details. Not being able to live in the same country as your beloved spouse: that’s a large and painful cost. (Here’s the cost of DOMA to...

An Unreasonable Search for Justification

(AP Photo/Mel Evans)
(AP Photo/Mel Evans) Albert Florence, right,with his attorney Susan Chana Lask. Yesterday, the Supreme Court denied Florence’s claim that strip searches in two county jails violated his constitutional rights, in an important test of the privacy rights of people who have been arrested. 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...

Why Hasn’t George Zimmerman Been Arrested Yet?

(AP Photo)
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. Listen, I don’t know what happened in Sanford, Florida, on the night of February 26. I know I’m responding to Charles M. Blow’s columns, and to the stories that I know of black men being treated as dangerous simply because they’re black , and...

Judging With Double Standards

Wikimedia commons
Sonia Sotomayor and Samuel Alito had virtually identical formal credentials—Princeton undergrads, Yale Law School, long careers on the federal bench. But Alito was treated with great deference by the press, and even opponents of his nomination based their arguments on his consistently reactionary judicial philosophy rather than suggesting that he wasn't "qualified." Sotomayor, conversely, was subject to repeated arguments that she lacked the intellectual abilities to serve on the Supreme Court. In a particular low point, immediately before Sotomayor's nomination The New Republic 's Jeffrey Rosen published a disgraceful article full of anonymous critics engaging in sexist attacks on Sotomayor that can't even be called "veiled"—aggressive questioning that would be considered charming if it came from Antonin Scalia showed that she didn't have the appropriate temperament, that the distinguished Yale Law-educated jurist lacked the intellect to be on the Supreme Court, etc. Needless to say...

Don't Wish For Judicial Overreach

Wikimedia Commons.
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. And even better, particularly if the Supreme Court strikes down the individual mandate while allowing the rest of the legislation to remain in operation, there’s the possibility that the resulting pressure on insurance companies facing an adverse-selection spiral would lead to a health care reform package better than the ACA. Should progressives see conservative judicial overreach as being as much opportunity as crisis? Alas, sometimes a devastating defeat is just a devastating defeat. Claims that striking down the ACA will substantially undermine the legitimacy of the Supreme Court are part of an extensive tradition of predictions that have generally turned out to be...

Judges as Defendants, Directors as Judges

The Law in These Parts asks tough questions about the role of the courts in Israeli settlement policy.

Praxis Films
This time, it seems, justice has won: The West Bank settlement outpost of Migron must be demolished. So ruled the Israeli Supreme Court this week. Migron is the best known of the outposts, small settlements set up across the West Bank since the '90s with the help of Israeli government agencies—but without the government approval required under Israeli law since official approval would drawn too much publicity. The outpost stands entirely on privately owned Palestinian property. The landowners, with the help of Israel's Peace Now movement, went to court in 2006. In this week's decision, the court rejected a government proposal to put off evacuating the settlers for three years until new homes could be built for them elsewhere. The ruling blasts the proposal as "egregiously unreasonable" in light of the "grievous and ongoing harm to the rule of law." Prima facie, the court upheld the rights of Palestinians over the government's fear of enforcing the law against settlers. The Israeli...

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