Law

Stare Indecisis

The Supreme Court won't likely rule on the Affordable Care Act based on precedent.

Unfortunately, I haven't yet had the chance to read Michael Bailey and Forrest Maltzman's new book , but given that Maltzman's previous is probably the strongest example of a new wave of political science modeling of Supreme Court decision-making, I'm certainly looking forward to it. And I'm in general agreement with the bottom line of their argument at the Prospect : That the Court is less likely to rule that the Affordable Care Act is unconstitutional than the attitudinal model, which predicts Supreme Court outcomes based on general political affiliation, might indicate. I'm a little less optimistic, though, with respect to the argument about precedent and how it might constrain the Court in this case. Without having read the new book (and hence seen their model laid out in detail), I'm obviously just going by what is presented in the piece. But while quantitative analysis of the Court is powerful and very useful, trying to determine the effects of precedent in this case is an...

Busted in 'Bama

Last Wednesday night, a cop in Tuscaloosa, Alabama, pulled over a rental car that didn’t have the right tag on it. He asked the driver for his license, and the driver instead produced his German identification card. Before Alabama’s new immigration law took effect this fall, the driver would have been ticketed, but under the terms of the new law, the cop arrested the driver and hauled him off to the police station for the crime of lacking proper identification. In fairly short order, a colleague of the arrestee showed up with the driver’s passport, visa, and German driver’s license. At that point, the driver was released—but the story had just begun. Turns out the driver was a Mercedes executive in town to visit a Mercedes SUV plant about 20 miles outside Tuscaloosa, which employs roughly 2,800 Alabamians. And his arrest drew the immediate attention of Robert Bentley, the state’s Republican governor, who had signed the immigration bill into law. Bentley called his homeland security...

DNA, Massachusetts, and the Question: Why Exonerate the Innocent?

Why exonerate the innocent? For some of us, the answer is obvious: justice. It's immoral to keep a person behind bars for someone else's crime. But not everyone believes that's enough of a reason. Here's how they think: Is it really worth overwhelming the underfunded criminal justice system (in Massachusetts, the vast majority of assistant district attorneys, the workhorses of the system, make between $40,000 and $80,000 a year, plus death threats) to process DNA requests for the few outliers who think they're innocent? For that side of the fence, here's the motivator: If the wrong person is in jail, there's a rapist or murderer still walking around, endangering the rest of us. Neither of those reasons has been enough for my home state of Massachusetts, putatively so liberal, to require judges to grant prisoners access to DNA evidence. This weekend Michael Blanding and Lindsay Markel of the Schuster Institute for Investigative Journalism , where I am a senior fellow, published a...

Will the Supreme Court Overturn Obamacare?

The Supreme Court has reinserted itself in the heart of domestic politics by agreeing to review the Patient Protection and Affordable Care Act (PPACA). How is the Court likely to rule? Consider two scenarios. The first scenario relies on a prominent theory of judicial decision-making called the attitudinal model . It holds that justices are unconstrained policymakers. To predict and explain Court actions we simply need to figure out the policy implications of the legislation and justices policy preferences. The vote takes care of itself from that point. In our recently published book, The Constrained Court (you should buy it here —think holiday stocking stuffer), we use politicians’ positions on Court cases to “bridge” preference estimates making them comparable across Congress and the Supreme Court (see here for more details). Applying this technique to the PPACA we can estimate probability that each justice would vote to overturn the law if ideology were the only factor. Based on...

One Small Step for Climate Scientists

Researcher gains legal standing to sue for privacy against global-warming skeptics.

In a small victory for global-warming advocates, the case against climate scientist Michael Mann has hit some rough ground. Mann, a climate scientist who has been fighting a battle against the American Traditions Institute (ATI) since January, received his first piece of good news in the case on November 1 when a Virginia judge ruled that Mann did, in fact, have standing to join the case over the release of his e-mails from his time at the University of Virginia (UVA). The judge also decided to reopen the consent decree between UVA and ATI concerning exempted e-mails. Facing a Freedom of Information Act request, UVA maintained that there was material in Mann’s e-mails that should be safe from release under an academic-material exemption. Mann and UVA were concerned that the initial consent order allowed the contested material to be reviewed by ATI’S lawyers, Chris Horner and David Schnare—an arrangement that struck many as inappropriate. As I wrote about in October , Mann’s struggle...

Roe v. World

It's a myth that the Supreme Court got ahead of public opinion when it legalized abortion in 1973.

As the Prospect 's Gabriel Arana correctly noted yesterday, the litigation challenging the constitutionality of Proposition 8—the voter referendum that banned same-sex marriage in California—has become the high-stakes battle it was originally intended to be. The Supreme Court is almost certain to hear the case, which means either the biggest progressive legal victory in many years or a terrible precedent like Bowers v. Hardwick , which upheld a Georgia ban on sodomy in 1986. Ian Millhiser adds a couple of more important points. First, although the bad guys won, the decision to allow Prop. 8 supporters to defend the constitutionality of the bill was correct. Contrary to the claim of some conservatives that it was somehow tyrannical for the Obama administration to refuse to defend the Defense of Marriage Act in the courts, or for California Governor Arnold Schwarzenegger to refuse to defend Prop. 8, there's nothing wrong with an administration signalling it doesn't support a law by...

Fixing the Courts

Rick Perry introduced a disastrous congressional reform plan earlier this week that has been rightfully ripped to shreds . Perry's plan would rewrite the constitution to turn Congress into a part-time body, opening the path to far more corruption, increasing the influence of lobbyists and money. We don't often praise the Texas governor here on Vox Pop, but he should be given credit where it is due, and somehow mixed in Perry's plan, which would be Jack Abramoff's dream government, was the most sensible policy proposal from a Republican candidate this year. Perry suggested a constitutional amendment that would end lifetime appointments for federal judges, including the nine justices on the Supreme Court. Here's how his plan puts it : There are a number of proposals which might be considered—one would be a Constitutional Amendment creating 18-year terms staggered every 2 years, so that each of the nine justices would be replaced in order of seniority every other year. This would be a...

DOMA, DOMA, DOMA: 1, Judicial challenges

Last week, while men in power were getting called out for behaving badly (see under: Cain, Herman; Penn State football), the Senate Judiciary Committee (SJC) behaved well—by voting out of commmittee a bill that would repeal the Defense of Marriage Act. As I mentioned last week , no one expects the repeal bill, called the Respect for Marriage Act, to actually come to the Senate floor this year. But that’s not really the point of the SJC’s action. DOMA (the Defense of Marriage Act ) is under attack on quite a few fronts. At every front, those involved are looking over their shoulders and watching what’s happening elsewhere—which means that while no single success brings it down, each one reverberates and affects the chances in the next battle. In theory, every branch of government is independent; in reality, they’re always watching each other. The SJC’s vote affects the other branches, just as the various lawsuits against DOMA surely gave the senators on the committee the courage to...

Maine GOP Doesn't Know When to Quit

After voters reject restrictive early voting restrictions, Republicans turn to photo ID

The Republican's national voter suppression strategy took its first hit last week when Maine voters opted to keep their same-day registration laws. The day after that election, I wondered whether the state's Republican majority would show greater hesitance before pursuing other restrictive voter laws. A photo ID law was considered last year, and had come close to becoming law; it passed the state House and was supported by Republican Governor Paul LePage, but lacked the votes to clear the Senate. Maine Republicans had vowed to revive the measure when the next session commences early next year. I had assumed that after voters rebuked their first attempt at decreasing voter turnout, they would need to think twice before giving that law another try. Turns out I was wrong. According to the AP (via ThinkProgress ) they're not backing down: Republican Gov. Paul LePage believes the issue needs to be revisited, notwithstanding Tuesday's vote, said spokeswoman Adrienne Bennett. GOP House...

Health Care Supreme

The Supreme Court, as expected, has decided to take up the question of whether the Affordable Care Act violates the Constitution, and has allotted five and a half hours for oral argument. This is far longer than the typical 30 minutes lawyers get to argue before the Court, but it represents the magnitude of the case. Supreme Court opinions striking down acts of Congress are rare. To find a case where the Supreme Court struck down the centerpiece of a sitting president’s legislative agenda, you would have to go back to the New Deal, when reactionary holdovers like Willis Van Devanter and James McReynolds—the latter a justice so racist and anti-Semitic he would refuse to shake the hands of Jewish colleagues and turn his back on African American lawyers making oral arguments—created a constitutional crisis by repeatedly striking down key New Deal legislation. The Supreme Court's decision to hear the ACA challenge raises three key questions: Should the Supreme Court strike down the...

Putting Marriage Rights to a Vote

The country's gradual movement toward marriage equality took a step further last week. Democrats in Iowa won a closely contested special election, which allowed the party to maintain their senate majority and essentially assured that no amendment to overturn same-sex marriage will be put to a vote until 2015 at the absolute earliest. That followed a New Jersey court's decision to hear a case that might replace the state's civil unions provision with full marriage rights. But a bit of bad news snuck through as well. Basic Rights Oregon—or BRO, a delightful acronym for the state's leading LGBT rights group—announced that they would abandon their goal of putting a pro-marriage measure on the ballot in 2012, with their sights now set on 2014. "It is not a question of if we will cross this threshold, but when," the group's board wrote in a release . "We have considered the possibility of putting this issue on the ballot for the 2012 election. However several factors, including the expense...

The Court Will Rule—and Then?

AP Photo/Alex Brandon
The Supreme Court’s decision today to take up the constitutionality of President Obama’s health-care reform in this session—they’ll hear oral arguments in March and rule by session’s end in June— means that the issue will be revived for voters just a few month before next November’s presidential election. This is probably good for Republicans no matter which way the justices rule. And, no matter which way the justices rule, I can’t see how this helps the Democrats. There are basically three ways the court could go. They could uphold the individual mandate; they could strike it down, which would essentially negate the rest of the law; or they could rule the issue can’t be litigated until 2015, when the federal government would levy the first penalties on persons who refuse to purchase insurance. Additionally, the court will rule on the important but still subsidiary issue of whether the feds can require the states to pick up additional Medicaid expenditures starting in 2016—but the...

Supreme Court to Rule on ACA in Middle of Election Season

Via the invaluable SCOTUSBlog , the Supreme Court announced today that it will be hearing challenges to the constitutionality of the Affordable Care Act (ACA) this term. The oral arguments will consolidate three of the anti-ACA lawsuits, and in addition to addressing basic questions of constitutionality, the Court will be considering the jurisdictional questions that could allow the Court not to issue a ruling on the merits next year. Given that in a high-profile case with important constitutional questions and a circuit split, the Supreme Court intervening is nearly inevitable. The upshot is that a decision on the ACA will be handed down right in the middle of a presidential election. Reflecting the importance of the case and the number of issues involved, oral argument will be 350 minutes rather than the usual 30 or 60. The Court will spend a full 90 minutes on the question of whether the individual mandate can be "severed" from the rest of the bill—that is, whether a ruling that...

Supreme Court to Hear Challenge to Affordable Care Act

Will the individual mandate survive?

It’s official; the Supreme Court will hear the a challenge to the Affordable Care Act, President Obama’s health care reform law. The Court’s decision is expected to come next June. Going by the tenor of conservative rhetoric and the decisions of lower courts, the key issue at hand is the “individual mandate,” which requires all Americans to purchase health insurance by 2014 or face financial penalties. Conservatives argue that the mandate is a gross overreach of federal power —by their lights, the Constitution doesn’t allow the government to tax “inaction.” Allowing the mandate to stand, they argue, would put the United States on a dangerous road toward unrestrained government. Indeed, in his ruling to uphold the individual mandate, Judge Lawrence Silberman of the DC Circuit Court of Appeals pointed out that while “the Government does stress that the health care market is factually unique,” it “concedes the novelty of the mandate and the lack of any doctrinal limiting principles.” As...

Why Tuesday? Because Republicans Said So

Earlier this week, The Washington Post 's Ezra Klein profiled the "Why Tuesday" organization. Here's how that group explains the history of our current election calendar: In 1845, before Florida, California, and Texas were states or slavery had been abolished, Congress needed to pick a time for Americans to vote. We were an agrarian society. We traveled by horse and buggy. Farmers needed a day to get to the county seat, a day to vote, and a day to get back, without interfering with the three days of worship. So that left Tuesday and Wednesday, but Wednesday was market day. So, Tuesday it was. In 1875 Congress extended the Tuesday date for national House elections and in 1914 for federal Senate elections. Of course the constraints that made people in the 1800s choose Tuesday no longer apply in the modern era. Without a bias for the status quo, there would be no reason to choose Tuesday over Wednesday or Thurday. Klein advocated for The Weekend Voting Act, a bill that would move and...

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