Law

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...

The Anti-Scalia Uprising

(Flickr/U.S. Mission Geneva)
I’m not the only one who has noticed that Antonin Scalia has become the Supreme Court’s crazy uncle. As I wrote here yesterday, Scalia’s dissent in the Court’s Monday ruling striking down most of Arizona’s anti-immigrant law was bizarre beyond belief—arrogating to Arizona a degree of sovereignty in border (and foreign, and military) policy that law and custom restrict to nations. His willingness to let Arizona make its own foreign policy was also in sharp contrast to his refusal to grant Montana the right to put controls on campaign spending in its state elections—a decision he joined on the same day he issued his Arizona dissent. I largely eschewed Scalia’s most egregious conduct on Monday—his rant against President Obama’s recent order forbidding the deportation of young immigrants brought here without documentation as children, which Scalia delivered from the bench in reading his Arizona dissent, notwithstanding that Obama’s order had nothing to do with the case the court was...

Yes, America, Global Warming Does Exist

The D.C. Circuit Court says so, despite convoluted industry arguments to the contrary.

AP Images
“Freedom is the freedom to say that two plus two make zero,” Winston Smith, the hero of George Orwell’s Nineteen Eight-Four, writes in his secret journal. “If that is granted, all else follows.” Or to paraphrase for the modern era, “EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.” The second line is from the per curiam opinion of the Court of Appeals for the D.C. Circuit announced Tuesday in Coalition for Responsible Regulation v. Environmental Protection Agency . This decision is a massive win for science generally, and climate science in particular, against powerful forces that have spent a decade insisting that two plus two equals four. To understand the background of the case, you must recall that in the 2007 case of Massachusetts v. EPA , the Supreme Court rejected the Bush administration’s argument that the EPA had no jurisdiction over greenhouse gases. Carbon dioxide and other heat-trapping gases, the administration...

Cruel? Sure, but How Unusual?

Alito’s overlooked, important dissent on juvenile sentencing 

AP Images
One of the most interesting dynamics on the Roberts Court is the emerging rivalry between Justice Antonin Scalia and Justice Samuel Alito for intellectual leadership of the conservative wing. From time to time, Alito openly mocks Scalia’s “originalist” philosophy (see, for example, his concurrence in United States v. Jones , ridiculing the idea that “eighteenth-century tort law” can decide questions about global positioning technology). It’s a generation thing: Alito is a callow 62 to Scalia’s 76. Like young folk everywhere, he’s embarrassed for his friends to see him in public with crazy Uncle Nino. So spare Alito a shred of empathy for what happened during the opinions session Monday. For the first time in his tenure, Alito delivered a dissent from the bench. It was a stem-winder, too—largely ad lib, intemperate, and dripping with scorn for the Court’s majority. Yet Scalia’s bizarre electioneering rant against Obama the same day is now the talk of the legal nerdosphere. The outrage...

On "Owning" Health Care

These guys aren't too worried about owning health care.
In the search for silver linings to a Supreme Court decision striking down part or all of the Affordable Care Act, many people have suggested that should it happen, Americans will turn all their displeasure about the health care system on conservatives. Specifically, it is that that they will "own" the health care system. James Carville says that if the ACA is overturned on a 5-4 vote, "The Republican party will own the health care system for the foreseeable future." Former Solicitor General Walter Dellinger says , "If the court were to strike down this major reform effort, 40 years in the making, the court would own the resulting health care system for the next decade and beyond. It’s a slightly highbrow version of the universal rule: 'You broke it, you bought it.'" The Republican party is one thing, but the Supreme Court "owing" health care? What does that mean? That people will be protesting outside the Court when their premiums go up? First of all, they won't, and second of all, I...

Who’s Sovereign Now?

(AP Photo/Chris Greenberg, File)
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. “Today’s opinion,” Scalia writes, “deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there.” This power, he continues, has been recognized as far back as 1758, when the Swiss philosopher Emer de Vattel, in his book The Law of Nations , wrote, “The sovereign may forbid the entrance of his territory either to foreigners in general, or for certain particular purposes.” Vattel was writing about nation-states, of...

Supreme Court Strikes Most of Arizona Immigration Law, Making Scalia Very Angry

The oral arguments earlier this year on the SB-1070, the infamous Arizona immigration law, made it difficult to read how the Court was going to rule on most of its provisions, although the Court seemed on balance more sympathetic to Arizona's position. Given how things looked after that, today's decision in Arizona v. United States must be considered a pleasant surprise. Most of the key provisions of the Arizona law were struck down, and the provision that was not could still be subject to future challenges depending on how it is applied. Rather than the usual 5-4 split, the case was decided 5-3 (with Justice Kagan recusing herself); surprisingly, Chief Justice Roberts joined Justice Kennedy and the Court's four Democratic appointees but did not write. Roberts apparently wanted there to be a five-person majority rather than having most of the Arizona law upheld because of a tie that left the lower court decision undisturbed. The majority, through Kennedy, decided the case based on a...

Court to Super PACs: Full Speed Ahead

(Flickr / epSos.de)
During the 1980s and '90s, conservatives liked to talk about the “sagebrush rebellion,” in which local officials in Western counties tried to take back federal land and escape the “tyranny” of federal land-management and environmental rules. That rebellion still simmers. But today, the Supreme Court crushed, for the moment, a newer rebellion out of the West. In Western Tradition Partnership v. Bullock , decided last fall, the Montana Supreme Court blasted a different federal rule— Citizens United v. Federal Election Commission , in which the Court held that the federal government could not regulate or restrict “independent” expenditures by individuals and corporations designed to affect the results of federal elections. That decision has set up the unseemly free-for-all that is federal campaign finance today, where the issue agenda is increasingly set by “independent” funders like American Crossroads and Sheldon Adelson. In Western Tradition, the Montana Supreme Court declined to...

Can Broadcasters Use Dirty Words? Court says, “#$%& If We Know”

(AP Photo/E. Pablo Kosmicki/file)
Thursday was First Amendment day at the Supreme Court. But the Court ducked the chance to decide what is literally its most visible case of the term—the “dirty words on broadcast TV” case. Federal Communications Commission v. Fox Television Stations , was on its second trip to the show. Seven justices delivered an opinion that sheds no light at all on the interesting issue—whether the government may ban “fleeting expletives” on broadcast TV. Briefly, the case concerned a new FCC rule subjecting broadcasters to fines if their shows included even brief, or “fleeting” uses of dirty words or nudity. In 1978, the Court held that the FCC could discipline broadcasters for transmitting sustained “indecent” speech—in this case, George Carlin’s magnificently profane 12-minute “Filthy Words” monologue—during daylight and early evening hours, when children might hear it. Since that decision, decency groups have badgered the FCC to tighten the rules on dirty words. Not until the George W. Bush...

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