Apr
14
2014
2

@SCOTUSblog no longer permanently credentialed for Supreme Court.

This is… not optimal.

(more…)

Mar
23
2014
6

Remember: oral arguments Tuesday on the Hobby Lobby case.

I came perilously close to writing this post in a white-hot fury (for reasons only indirectly related to the case), but wrath is a counter-productive emotion in this particular situation.  Suffice it to say that the people that run Hobby Lobby are adamant that they not be required to pay for drugs that they consider to be abortifacients; and while I’m personally sorry if this bothers progressives I am equally adamant that progressives get it through their collective skulls that they are not the sole arbiters of morality in this country. They are not, in fact, even the primary arbiters; and for what I consider to be very good reasons.

Rant over.  Enjoy your Sunday morning.

Nov
26
2013
3

Hobby Lobby #Obamacare conscience exemption case to be heard by Supreme Court.

Not unexpected, but not before time, either.

The U.S. Supreme Court today agreed to review the lawsuit filed by Hobby Lobby against the federal government over the Obamacare mandate that employers provide contraceptive coverage in their health plans.

Hobby Lobby, which is owned by an Oklahoma City family with strong Christian beliefs, says a 1993 law, the Religious Freedom Restoration Act, protects the company from the mandate. The company is particularly opposed to paying for coverage that includes the morning after pill.

(more…)

Jun
24
2013
10

Does the Supreme Court think that it has standing to review the Big Four?

Chris Geidner (H/T: AoSHQ) asks that question.

Although the country is waiting on the Supreme Court’s decisions in four major cases — involving California’s Proposition 8, the Defense of Marriage Act, affirmative action policies, and the Voting Rights Act — the court’s decision in all four cases could be not to decide.

How?

Standing.

My answer is still: I think that the court will decide that it has standing.  Of course, this is mostly based on the assumption that, if the Supreme Court was going to toss any or all of this out anyway, why didn’t it just do so at the beginning of the month and save us the anticipation? (more…)

Jun
22
2013
8

Why Section 5 of the Voting Rights Act may be going away.

Justice Anthony Kennedy is apparently spreading marmalade on his English muffins again:

During oral arguments in the Voting Rights Act case, a majority of justices appeared prepared to turn aside the solicitor general’s argument that the law’s requirement that jurisdictions with a track record of racial discrimination preclear any changes to their voting systems with Washington. Justice Antonin Scalia dismissed this feature of the Voting Rights Act—arguably the most important piece of civil-rights legislation in American history—as a distasteful “racial entitlement.” Justice Anthony Kennedy, the swing justice, recognized the historical value of the act but nonetheless suggested that the method of identifying which jurisdictions are subject to the requirement had become, over the years, “improper.” “Well, the Marshall Plan was very good, too,” he said, “but times change.”

Bolding mine.  This has always been the snag with keeping Section 5 of the VRA.  Today, very few people would argue that in 1965 the federal government would not have been justified in insisting that individual states respect the US Constitution, particularly the 14th and 15th Amendments.  However, it is almost fifty years later.  The people who were segregationists then are mostly dead of old age.  Their children and grandchildren get (rightfully) offended at the suggestion that they wish to suppress minority voters – because, you understand, integration WON.  These days Section 5 gathers its primary support from its beneficiaries: entrenched minority Democratic politicians, and slightly less entrenched Republican ones*.  I recognize the tactical advantages, but speaking as a good, classical Republican I’m happy to see that Anthony Kennedy is enjoying his marmalade. (more…)

Jun
10
2013
--

Hey, everybody: it’s SCOTUS Day!

That’s right, kids: today’s a day where the United States Supreme Court reminds you that complicated, final decisions in tricky law cases are determined by whether Anthony Kennedy liked what he had for breakfast that morning.

[pause]

Well, at least the Supreme Court isn’t declaring our metadata unconstitutional. That’s something, at least.

SCOTUS Blog is covering it in real time, but feel free to comment here.

Moe Lane (crosspost)

Mar
26
2013
3

Predicting what the Supreme Court will do is a mug’s game.

So let me be a mug: at a guess, they’re going to punt on Calfornia’s Prop 8 question via a technicality and shave as narrow a position as they can on DoMA.  The Supreme Court is getting a little institutionally tired of being the heavy for every time Congress or a state passes a problematical law: see their responses to Obamacare and McCain-Feingold for examples of what they can do to provide negative feedback.

I am almost certainly wrong.

Moe Lane

PS: I think that many commenters and commentators have a bad habit of over-emphasizing Chief Justice Roberts’ Obamacare opinion when forecasting future Supreme Court decisions.  Although, to be fair, disappointment can often color analysis.

Mar
12
2013
4

National Labor Relations Board begs Supreme Court for a miracle.

Because they’re going to need one:

Today, the National Labor Relations Board (NLRB) announced it will seek U.S. Supreme Court review of the D.C. Circuit’s decision invalidating the President’s recess appointments to the NLRB. In January, the court ruled that the three “recess” appointments to the NLRB are invalid because they exceeded the scope of the President’s authority under the Recess Appointments Clause of the U.S. Constitution. The NLRB’s petition will be due by April 25, 2013.

The really short version is that the NLRB is currently facing a scenario where every single one of its decisions that were reached after Obama’s invalid recess appointments can be overthrown just as soon as any particular loser of said decisions can get it into court.  For that matter, as the rule stands now the courts have more or less invalidated the current system of recess appointments entirely; which ruling is a disaster for the executive branch, and one that the NLRB really, really needs the Supreme Court to overturn.

Which is why they’re going to court.  At this point simply getting the recess appointment thing turned back on again would be a bit of a win.  If you define ‘win’ nicely, or at least non-judgmentally.

Moe Lane

(more…)

Nov
26
2012
2

US Supreme Court reaffirms right of people to videotape cops. …Freaking *Illinois*.

Nice to see that the ACLU isn’t completely useless:

The Supreme Court has rejected an Illinois prosecutor’s plea to allow enforcement of a law aimed at stopping people from recording police officers on the job.

The justices on Monday left in place a lower court ruling that found that the state’s anti-eavesdropping law violates free speech rights when used against people who tape law enforcement officers. The law sets out a maximum prison term of 15 years.

Here’s a really good, really useful rule of thumb for handling any Constitutional situation not explicitly spelled out in the document in question: if the question at hand is Would the Founders have trusted federal, state and/or local government to do X without some kind of oversight then the default answer is going to be The answer is going to not just be “No.”  It’s going to be “HELL, NO.” 

Idiot.

Moe Lane

May
15
2012
6

#rsrh Chief Justice Roberts used Citizen’s United to give Souter a SPECIAL send-off.

Oh, this is entertaining, in a nasty-fun sort of way.  It’s an accounting of the way that Citizens United went down, and you can almost hear Jeffrey Toobin’s teeth grinding over every word. If this account is correct, what happened was the combination of a truly awful oral argument and a favorable pro-reform opinion coming from perennial swing vote Anthony Kennedy; Chief Justice John Roberts took advantage of the latter to assign Kennedy the job of writing the majority opinion, thus ensuring that several decades’ worth of onerous free speech restrictions got gut-shot and left to die at the side of the road*.

At this point, soon-to-retire Justice David Souter got his nose out of joint on the subject and decided to effectively flip off the Court on his way out the door; having been assigned the minority opinion, Souter was prepared to snipe at the majority in his dissent.  Roberts then demonstrated why George W Bush had made a good call by making him Chief Justice:

Roberts didn’t mind spirited disagreement on the merits of any case, but Souter’s attack—an extraordinary, bridge-burning farewell to the Court—could damage the Court’s credibility. So the Chief came up with a strategically ingenious maneuver. He would agree to withdraw Kennedy’s draft majority opinion and put Citizens United down for reargument, in the fall. For the second argument, the Court would write new Questions Presented, which frame a case before argument, and there would be no doubt about the stakes of the case. The proposal put the liberals in a box. They could no longer complain about being sandbagged, because the new Questions Presented would be unmistakably clear. But, as Roberts knew, the conservatives would go into the second argument already having five votes for the result they wanted. With no other choice (and no real hope of ever winning the case), the liberals agreed to the reargument.

(more…)

Mar
27
2012
9

#rsrh Obamacare update: The Obama adminstration blocks a hand grenade…

with their teeth.  Apparently Solicitor General David Verelli was… a typical member of this administration, frankly.  Which is to say: ill-prepared, ill-advised, and ill-suited for the task put out in front of him.  And it cost him – and by implication, his boss:

Call it The Faceplant Heard ‘Round The Nation.  CNN legal analyst Jeffrey Toobin, who had earlier predicted that the Supreme Court would uphold the individual mandate, called the first half of oral arguments on the issue “a train wreck for the Obama administration,” and openly predicted that the court would overturn at least that part of ObamaCare…

Someday I hope to see an Obama administration official take his or her job and/or responsibilities as seriously as I do.  Could that happen soon?  That would be spiffy, thanks.

Moe Lane

PS: Find out what Justice Kennedy had for breakfast today.  ANALYZE ITS CHEMICAL CONTENT.  It’s time that we did some SCIENCE to this problem.

Mar
26
2012
4

Obama’s first lose-lose Obamacare-related argument today.

The first round of the US Supreme Court’s attempts to settle the problem that is Obamacare takes place today, and from the Obama administration’s purely partisan (and particularly puerile) perspective, there’s no winning scenario available.  Essentially, what’s happening today is the courts are hearing arguments about whether or not Obamacare’s individual mandate qualifies as a tax.  If it does qualify as a tax, then under the provisions of the Tax Anti-Injunction Act (TAIA) the mandate cannot actually be challenged in courts until it’s actually been collected; more plainly, you can’t sue for relief from an onerous tax before they take it from you.

The merits of the case are one thing – the above link from Heritage goes into the whole issue, in some detail – but the partisan implications are another.  There’s no good result for the Obama administration: if the Supreme Court decides that the individual mandate is not a tax then a large portion of the administration’s existing arguments goes away, thus increasing the likelihood of a humiliating disposal (at least in part) of the one thing that Obama has managed to do domestically in four years.  But if the mandate is a tax, then Obama gets to face a plethora of attack ads in the fall which will be (accurately) portraying him as a shameless serial liar who used the looming Obamacare legislation to sneak in a stealth tax on the American middle class. (more…)

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