Law

The ACA v. the Supreme Court

(Flickr/Mark Fischer)
This is the first of a series of posts looking at the arguments in the upcoming health-care case. Judges, whatever they like to pretend, rarely decide cases on logical application of argument and case law. They do think about those things, but usually only after they’ve made up their minds—and they tend to make up their minds based on unformed emotional reactions to the questions raised by a case. So it’s worth asking about the emotional subtext in the minimum coverage (or “individual mandate”) aspect of the Affordable Care Act case, which will be argued in late March. This is the one issue that has stirred public fear— Cheese it, it’s the Broccoli cops! —and Justices are members of the public. The two party briefs by foes of the ACA play heavily on that fear. Be afraid, they warn. Be very afraid. A corrupt, power-hungry Congress wants control of your evening cocktail, your dinner plate, and the car you drive. The government’s tone is calmer. Nothing to see here, the government’s...

Voter-ID Laws Face Major Roadblocks

(Flickr/ezola)
Texas Republicans have been trying for years to pass a law that would require state voters to show identification before hitting the polls—and state Democrats have been equally determined to stop such a measure. The Rs came close in 2009, but the House Democrats, only two seats away from a majority, blew up the legislative session rather than see the measure pass. By 2011, however, fresh from Tea Party victories, the GOP had overwhelming majorities in both Houses. The bill was almost undoubtedly going to pass, and rather than go for a more moderate version of voter ID with non-photo options, the conservatives went for the gold, introducing one of the most stringent versions of a voter-ID requirement. The only option left for the Democrats was to set up the grounds for the legal battles sure to come . Monday, it looked like those efforts paid off. The Department of Justice has blocked the law, meaning that while the measure goes to the United States District Court for the District of...

The Emerging Sotomayor-Muppet Axis of Evil

Can’t you take a joke? In the time and place where I grew up, as I have written before , Federal judges were figures of awe. They were men (all men) of rather severe probity, following unpopular mandates from the Supreme Court even when those decisions cost them friends and put their lives in danger. I never recall a public complaint from any of the judges in the Southern state where I grew up, and certainly never outright ridicule of the President and the Congress—at least where others might overhear. Many of these judges held legal and social views I found profoundly wrong. But they were careful to protect the prestige and integrity of the courts they served, and to avoid giving the impression that they were just ordinary players in the poisonous politics of segregation. No matter their private misgivings, they publicly served the law and upheld the Constitution. In no small part I owe my choice of profession to the memory of their service. Here is the federal bench 2012, after a...

Copyright Fight Hits the Lab

The Research Works Act keeps the battle started by SOPA and PIPA in the headlines.

(AP Photo/ailatan)
This week, the scientific publishing giant Elsevier , which produces thousands of academic journals, and Representatives Carolyn Maloney, a New York Democrat, and Darrell Issa, a California Republican, withdrew their support for the Research Works Act after public outcry from public-access advocates. Currently, some federal agencies require that researchers who rely on government funding make their resulting journal publications freely accessible online. The Research Works Act would have forbidden any agency from imposing this requirement, allowing publishers to retain rights to the papers. As with the recent battles over the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA), opposition and the sudden drop-off in support for the legislation suggests that big content companies are losing some of the traction in Washington they once enjoyed. But the Research Works Act was always largely symbolic. “It’s a stake in the ground,” said Allan Adler of the American Association of...

The Decline of Guns

(Flickr/CyJen)
A while back I started a four-part series for Think Progress on the National Rifle Association and the state of the gun debate in America, which finishes up today. In the first three installments (here's Part 1 , Part 2 , and Part 3 ), I detailed how the NRA's electoral power is largely a myth. Contrary to popular belief, their money doesn't get candidates elected, their endorsements almost never matter, and the stories they tell about their history—that they won the House for Republicans in 1994 and the White House for George W. Bush in 2000—are almost certainly false. In today's final installment , I discuss gun ownership and public opinion, and there are some facts that may be surprising. The one that grabbed me was this: gun ownership has been falling for years, and shows no signs of abating. Here's a chart I made using General Social Survey data: This decline is occurring among all age groups, and across all birth cohorts. Furthermore, the people who are most likely to own guns...

Blunt Amendment Fails in the Senate

(Flickr/Stacy Lynn Baum)
For a brief moment yesterday it looked as though some GOP senators were ready to step back from the ledge, and reject their party's assault on women's rights. A handful of Republican senators were hesitant to endorse the controversial Blunt amendment, which would allow any employer—both secular and religious—to reject covering individual aspects of health insurance they find morally questionable, not just contraception. Even Mitt Romney expressed opposition to the bill when an Ohio reporter explained the implications before his campaign quickly realized they had defied party doctrine, and issued a clarification, which reversed Romney's earlier statement. Any qualms with the legislation evaporated when it was put to a vote this morning. The measure failed 51-48, but Republicans voted with their usual lockstep discipline. Soon retiring Senator Olympia Snowe was the lone Republican opposing the measure and three Democrats—Ben Nelson, Joe Manchin, and Bob Casey—crossed the aisles to join...

Are Republicans Backing Away from the Contraception Fight?

(Flickr/Stacy Lynn Baum)
Senate Democrats think they have Republicans backed into a corner. In response to the hullabaloo around the Obama administration's decision on covering contraception in health-care plans, Missouri Senator Roy Blunt has offered an amendment to allow any employer—not just religiously affiliated organizations—to refuse to cover any health-care service—not just contraception—based on "religious beliefs or moral convictions." The battle over reproductive rights has already allowed Democrats to paint Republicans as antagonistic to women and, needless to say, Senate Dems are gleefully forcing a vote on the measure tomorrow to get their opponents' extremist take on the record. The Washington Post 's Greg Sargent checked in with a few Republican senators and found that some are hesitant to endorse the amendment ahead of tomorrow's vote: A spokesman for Senator Susan Collins confirms to me she’s still undecided — with less than 24 hours until tomorrow’s vote. On MSBNC just now, Senator Olympia...

A Supreme Court Prediction

You'll drag me outta here when hell freezes over. (Flickr/DonkeyHotey)
Barack Obama has made two appointments to the Supreme Court, both of which involved replacing reliably liberal justices (Souter and Stevens) with presumably liberal justices (Sotomayor and Kagan). If Obama is re-elected, there's a fair chance he'll get at least one one more appointment. Four of the justices are in their 70s, and you never know when one might get ill or just decide that enough is enough. So here's my prediction: If Obama wins a second term, and one of the five conservative justices on the Supreme Court retires, Republicans will, for the first time, insist publicly that the president absolutely, positively must appoint a justice who reflects the ideology of the person s/he is replacing. That no one has argued this before will be irrelevant, as will Republicans' own satisfaction with appointments like Clarence Thomas, one of the most conservative justices in history, replacing Thurgood Marshall, one of the most liberal. Republican senators, legal eagles, and commentators...

Pirates of the Corporation

Let’s play make-believe (sorry, lawyers call it “counterfactual”) with Justice Stephen J. Breyer. Imagine that Edward Teach, known as Blackbeard, had incorporated his buccaneering business as Pirates, Inc. Now Blackbeard is captured. And sued. “Do you think in the 18th century if they'd brought Pirates, Incorporated [to court], and we get all their gold, and Blackbeard gets up and he says, oh, it isn't me; it's the corporation—do you think that they would have then said: Oh, I see, it's a corporation. Good-bye. Go home[?]” Kathleen Sullivan, the lawyer for the Royal Dutch Petroleum Company, did not flinch: “Justice Breyer, yes, the corporation would not be liable.” She helpfully added that under maritime law, Blackbeard’s victims could sue his ship and get its value. But as for the corporation, no. A few minutes later, Breyer was back. “What about slavery? ... That seems like contrary to international law norms, basic law norms, it could be committed by an individual. And why, if it...

Our Anti-Government Hypocrisy

(Flickr/Iguanasan)
Americans, the political scientists (and common sense) tell us, are ideologically conservative and operationally liberal. On the level of ideology, they’re opposed to government’s intervention in the economy. On the level of daily life, they support such universal government programs as Social Security and Medicare. But this split between abstract beliefs and the concrete needs of daily life doesn’t just apply to government programs: It applies to government regulations as well. Last Thursday, the Pew Research Center for the People and the Press released a survey that revealed what Pew termed “Mixed Views of Government Regulation.” But “mixed,” in this case, means anti-regulatory in matters of ideology and pro-regulatory in practice. Asked whether they believed that government regulation of business was necessary to protect the public or that such regulation usually does more harm than good, just 40 percent answered that regulation was necessary, while 52 percent said it did more harm...

Taking Anti-LGBT Discrimination Seriously

(Flickr/Zolk)
U.S. District Court Judge Jeffrey White's recent opinion holding a key provision of the Defense of Marriage Act unconstitutional presents an interesting contrast to Judge Stephen Reinhardt's recent opinion on California's Proposition 8. Reinhardt, trying to maximize the chances that his opinion would not be overruled and therefore create a bad Supreme Court precedent, wrote a cautious and narrow opinion closely tailored to the unique facts of the case at hand. Judge White, conversely, wrote a broad (though clearly argued) opinion that would have much wider implications. Whether White's opinion can survive further appellate review remains to be seen. But on the merits, he provides a very compelling argument that the legal subordination of people based on their sexual orientation should be considered intolerable. Contemporary equal protection law evaluates state classifications by applying various levels of scrutiny. Racial classifications are subject to "strict" or "heightened"...

The Court That Walks Off Cliffs

(Flickr/peachygreen)
Affirmative Action: Perhaps the defining characteristic of the Rehnquist Court was a certain last-minute reticence. On issue after issue—the Commerce Power, abortion, even the long-standing conservative desire to do away with Miranda v. Arizona— the Court would walk up to the edge of the abyss, dangle its toes over the side, and then step (slightly) back. While moving the law far to the right, the Court seldom engaged in the kind of radical overruling that would have perhaps called its legitimacy into question. Early indications are that the Roberts Court has seen the abyss, and it works. Its two most radical decisions, District of Columbia v. Heller and Citizens United v. Federal Election Commission , both represented quantum leaps toward writing the hard-right agenda into the Constitution. We’ll get another indication of how willing to jump the Court’s majority is, obviously, when the Court decides the mammoth health-care cases later this term. To reach the right’s favored result,...

Ho-Hum, Another Day, Another DOMA Defeat

Earlier this week I wrote about how quickly gay people are winning, just at the same time that women are losing. Speak of the devil! Yesterday, ho-hum, yet another federal district court judge ruled that a key portion of the Defense of Marriage Act was unconstitutional, in Golinski v. Office of Personnel Management . Karen Golinski is a lawyer who works for the Ninth Circuit in San Francisco (nice touch, yes?). She got married during the six months that California had a gender-neutral marriage law, between the California Supreme Court ruling that made it possible and before Prop 8 passed and added a constitutional ban to the law. (California is really just too exciting. Its crazy politics and the earthquake fault line are the only two good reasons I've found not to move there.) Golinski applied to add her wife to her health insurance benefits. Her boss at the Ninth Circuit said yes. But here's the hitch: Golinski worked for the federal government, which, because of DOMA, cannot...

Trying to Win Beyond Virginia

I wrote earlier this week that Virginia's mandatory ultrasound law was proving to be highly unpopular. But though many its Republican supporters were clearly spooked by the level of opposition, I didn't think it very likely that Governor Bob McDonnell would withdraw his support. Happily, I was wrong. McDonnell came out against the provision, and it will presumably be deleted from the final legislation. This is good news. But supporters of reproductive freedom should temper their enthusiasm. There's a flip side to the factors that made the ultrasound bill unpopular—the burdens on abortion that fall primarily on women who have less representation in the political process and don't involve bodily invasion will be much harder to defeat. It's also important to remember that several other states have mandatory ultrasound provisions that are as bad or worse than the one that almost passed in Virginia. Irin Carmon's excellent account of the victory in Virginia contains these thoughts from the...

The Right to Tell Lies

(Flickr/cliff1066a,,c)
Most Supreme Court arguments last one hour—30 minutes for each side. At unpredictable intervals, however, the Court grants one party several extra millennia of agony as a once-solid case disintegrates in full view of the entire courtroom. This happened Wednesday in the argument in United States v. Alvarez , the much-discussed Stolen Valor Act case. The victim of the agony extension was Jonathan D. Libby, deputy federal public defender from Los Angeles. His client, Xavier Alvarez, is a habitual liar who has regularly and vainly tried to convince people that he is a former U.S. Marine, an old-timer with the Detroit Red Wings, the ex-husband of a Mexican movie star, the personal rescuer of the U.S. Ambassador to Iran—and, unfortunately for him, a recipient of the Congressional Medal of Honor. That latter claim violated the Act, passed in 2005. It makes it a federal crime for anyone to “falsely represent[] himself or herself . . . verbally or in writing, to have been awarded” any military...

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