Moe Lane

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.

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…)

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

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…)

…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.

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…)

If so… um, thanks?

To sum up the argument: the Obama administration has always been two-faced over whether the individual mandate is a tax or not, due to the horrifically botched way that the Democrats shoved Obamacare down America’s throat. If the mandate is not a tax, its constitutionality becomes highly iffy; and if it is a tax then Obama lied like a cheap rug when he promised the American people that their taxes weren’t going up:

Mind you, people shouldn’t have believed that nonsense from Obama in the first place.  Politicians lie, people. (more…)

…what?  I am perfectly entitled to use the rules of thumb popularized by left-wing hack groups like ThinkProgress or Talking Points Memo: since they felt justified in using uncorroborated anonymous reports to vicariously convict Prosser of assault, they have absolutely no justification for other people using the precise same criteria to vicariously convict Bradley.  Besides, my version makes much more coherent sense.

OK, let me explain this one for folks coming in late.  About two weeks ago there was supposedly a violen… oh, let’s not use euphemisms: supposedly, two Wisconsin Supreme Court Justices (Prosser and Bradley) got into a fight.  It was first reported that Prosser put Bradley in a choke-hold – whereupon most of the Online Left dropped their pants and started typing blissfully angry screeds about how the crime of one Supreme Court Justice attacking another Supreme Court Justice could only be made right with an immediate resignation – only to have it later come out that other reports had it that Bradley had actually charged Prosser with fists raised, and that Prosser was merely defending himself against a larger and younger opponent.  Complicating all of this is the minor detail that no charges were apparently filed*, and Bradley has only now come out with a rather belated claim accusing Prosser of the choking, while not explaining why she is not pursuing a criminal case.  Which is very possibly due to the fact that there’s at least one witness apparently who told Bradley at the time that no, she had not been choked.

Note, by the way, that all of the people involved – participants and witnesses – are Wisconsin Supreme Court Justices.  You’re going to see some fascinating dissents from these people for the next few years. (more…)

The way this administration is handling Supreme Court pick (and current Solicitor General) Elena Kagan may just have more Left-pushback than I assumed: it’s making Maureen Dowd wax most sarcastic.

['Voice' of Joe Biden]: This week, when the president first told me he’d chosen Elena Kagan to serve on the Supreme Court, I couldn’t help but smile. I met her 20 years ago, when she took a break from teaching school and chasing guys to join my staff in the Senate, and even back then, it was easy to picture her in a black robe.

Of course, Elena prefers to see herself in something frillier, because she’s a girl’s girl. Just try dragging her out of La Perla! And I’m sure, under those robes, she’ll be rocking some Juicy Couture jeans and Christian Louboutin suede boudoir slides. Uh-oh. Did I sound gay there for a minute? Well, I’m not. And neither is Elena Kagan.

[snip]

Elena is anything but a history-making, barrier-breaking, proud, strong, happy gay woman. She’s a garden-variety, sad, scary, single, childless career woman who can’t get a man because she’s too smart, works too much and refuses to settle.

I’d like to repeat for the record – once again – that wide swathes of the Right are largely indifferent to whether or not SG Kagan is gay. Although if it turns out that she is we’d quite like to know why this administration felt the need to lie about it.

Sorry that the title isn’t snappy, but it happens.

High Court Will Rule On Violent Video Game Ban

The Supreme Court agreed Monday to decide whether California can ban the sale or rental of violent video games to children.

The court will review a federal court’s decision to throw out California’s ban.

The court in question is the 9th, which has a long and in/glorious (depending on who you ask) history of having its rulings smacked down by the USSC.  Preliminary assumption is that they’ll sustain it, given that there was a roughly similar case last week involving animal cruelty that got struck down – but it’s the Supreme Court.  You never know what those wacky guys and gals over there are going to do.

Moe Lane

PS: My opinion is that I don’t need the legislature to help me decide whether or not I should let my kids have access to violent video games.  And that I don’t need the courts to validate my decision, either; that door swings in both directions.

This is a joke, right?

This may come as a surprise to some people, but the U.S. Constitution does not specify the size of the Supreme Court.

[snip]

So if nine justices is not writ in stone, the embattled President Obama should deal with this hostile conservative/reactionary court by adding three members.

(Via AoSHQ) Leaving aside the fact that author Stan Isaacs apparently felt the need to educate his readers about something which would be familiar to anybody with even a basic working knowledge of 20th century American history*, I’m wondering whether Isaacs can actually count.  The President can declare as many Supreme Court justices as he likes; getting them confirmed requires Senate approval.

And if it was OK for then-Senator Obama to filibuster Alito for ideological reasons, then it’s certainly OK for us to return the favor.  And the GOP has the votes.  And the GOP base will descend like an asteroid from orbit on any GOP Senator that even looks like he or she will not support a filibuster against packing the US Supreme Court.  And then the GOP will rake the Democrats over the coals about it in the November elections.

So, really.  Feel free to try this.

Moe Lane

PS: My initial reaction to the size of the Supreme Court is that it’s not outside the realm of possibility that we’d be better off if the number was reduced to, say, seven.  I’m not wedded to that opinion; I’ve never really thought about it before.

*Insert the standard rant on the American public school system here.

Crossposted to RedState.

The confirmation of judges to the United States Supreme Court is a process that is exclusively the responsibility of the United States Senate.  A candidate (like Ms. Sotomayor) is brought before the Senate Judiciary Committee for evaluation/grilling: once she makes it out of the committee (it’s generally considered a good idea to have at least one crossover vote), she is then voted on by the full Senate.  At no time is the House of Representatives involved.

Why am I mentioning this?  Because apparently the Democratic Congressional Campaign Committee doesn’t know any of this.  Doubleplusundead reported that this was the title of a press release*:

Senator Cornyn Votes NO on Sotomayor – Where is Rep. Pete Sessions?

To which FamousDC responded:

In the House.
Not voting on a Supreme Court nominee.
They only do that in the Senate.

I’m sure that we all hope that the DCCC has taken this lesson in elementary civics to heart, and earnestly that the offending press release in question is at least not lonely, wherever it’s been memory-holed*.  Then again, it’s probably keeping company* with all those press releases on how well the DCCC is recruiting this cycle, so at least it has friends* in this, its time of sudden darkness.

Moe Lane

PS: Of course the NRCC would love to hear from you.

*Allegedly.

Crossposted to RedState.