ACA Is A Law Of Social Change: Cue The Outrage

By Tina Dupuy, cross-posted from her website

We can all stop pretending continued Republican anger about the Affordable Care Act is news. Some figured a Supreme Court ruling would settle things. And since the GOP said it was unconstitutional with the same fervor as people who’ve read the Constitution—it was easy to assume a decision from the nine justices in the highest court in the land—regardless of the outcome—would chill them out.

They would say things like “We are a nation of laws.” Things they say when they agree with the law—however unjust it may be (i.e. immigration).

No instead there are calls for revolt. The perennially reasonable Senator Rand Paul (R-Kentucky) said in a written statement: “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so.” And then added, “The whole thing remains unconstitutional.” Which is akin to saying just because something is a law doesn’t make it legal. Or just because they have hair on their face doesn’t make them mammals. The court, not some junior senator from a small state, ultimately decides what is or what is not constitutional. But unconstitutional is the word conservatives use for illegitimate. In chess this move is called flipping the board over and stomping away.

But it also feeds into the right-wing narrative that they are history’s most frequent victims. To them, the more egalitarian the country becomes the more persecuted conservatives are. The sentiment can be traced back to 1845 and the founding of the Know Nothings a nativist group concerned the country was being overrun with German and Irish immigrants. The current tea party finds its sympathies much more inline with the Know Nothings than anyone who ever threw tea in the Boston Harbor. They’re each backlash movements sparked by “change.”

The Know Nothings became split on the issue of slavery and in the southern states morphed into what we identify as the Confederacy. Here you have a region of the country that quite literally fired the first shots of what was to be the bloodiest war in American history and to hear them tell it, it was the “war of Northern aggression.”

The Civil War for many didn’t settle things so why would we assume a 5-4 decision could?

Conservatives are still mad about the New Deal, even though it worked to pull the country out of the Great Depression. They’re still miffed about women suffrage, the Civil Rights bill and Roe v. Wade. In fact any movement forward giving more people more rights and greater acceptance is a point of contention with conservatives. Gay rights is framed as Christians losing their rights to vilify whomever they want. Women not being forced to pay for birth control out-of-pocket is the government restricting the freedom of religion institutions to dictate policy to the government.

Conservatives in the current incarnation of the Republican Party think rights are a zero sum game. If one group gains acceptance, it means another falls out of favor. The cornerstone of trickle down economics is that a rising tide raises all boats—but not when it comes to social change in the right-wing mindset. Then there are winners and there are losers. And conservatives on some level have to lose to prove their preexisting condition: They’re not bullies but martyrs—always hanged in the public square for their belief that only they should benefit from the Bill of Rights.

The Affordable Care Act is a law of social change. It insists on greater equality for women in health care. It stands up for the sick over the bottom line. It’s a step forward for human rights (finally) in our medical system. And it mandates personal responsibility (as with most laws). It’s far from perfect, and as with anything it can stand improvement—but does that make it an affront to Republicans?

In a word: Yes.

It’s health care reform policy, Republicans, going all the way back to Nixon, have touted as a way to avoid socialized medicine in America. So naturally its implementation is a major loss for their team.

Now more Americans can get private medical insurance and insurance companies have to spend a higher percentage of premiums on actual health care—but most importantly conservatives get to be the victims of “a communist plot to kill our freedom.”

Scalia Watch

DonkeyHotey

There has long been a consensus in mainstream circles, if not necessarily in the legal community, that whether you agreed with him or not, Justice Scalia possesses a great legal mind.  Indeed, the conventional wisdom for decades, as Jeremy Leaming writes, "has held that Justice Antonin Scalia is the high court’s most brilliant, disciplined, albeit ideological, member."

It may be that exposure through the internet "has altered the narrative by giving forums to an array of writers who have been quick to poke holes in an increasingly tiresome and shoddy line of reporting" or simply that Scalia's over-the-top rants and overt partisanship have finally reached a critical mass.

But as the country becomes more politically polarized, Scalia, as Dana Milbank wrote a while back, has had more difficulty containing his rabid partisanship.  He noted that “Scalia’s tart tongue has been a fixture on the bench for years, but as the justices venture this year into highly political areas such as health-care reform and immigration, the divisive and pugilistic style of the senior associate justice is very much defining the public image of the Roberts Court.”

Leaming is absolutely correct that "with each passing high court term, Scalia seems to be coming wackier, more out-of-touch, increasingly shrill. And he’s being called out for his nuttiness with growing frequency." 

"The Madness of Justice Scalia," Leaming's piece, cites various legal scholars and reporters, including law professor Paul Campos, who observed that Scalia “has in his old age become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy.”

Perhaps Scalia has finally gone too far.  In a column last Wednesday (before the ACA decision), E.J. Dionne called for Scalia to resign:

So often, Scalia has chosen to ignore the obligation of a Supreme Court justice to be, and appear to be, impartial. He’s turned “judicial restraint” into an oxymoronic phrase. But what he did this week, when the court announced its decision on the Arizona immigration law, should be the end of the line.

Not content with issuing a fiery written dissent, Scalia offered a bench statement questioning President Obama’s decision to allow some immigrants who were brought to the United States illegally as children to stay. Obama’s move had nothing to do with the case in question. Scalia just wanted you to know where he stood.

After this case was argued and while it was under consideration, the secretary of homeland security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants,” Scalia said. “The president has said that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the immigration laws. Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the president declines to enforce boggles the mind.

What boggles the mind is that Scalia thought it proper to jump into this political argument. And when he went on to a broader denunciation of federal policies, he sounded just like an Arizona Senate candidate.

Dionne takes Scalia to task for being a "blatantly political actor" and justice at the same time:  "Unaccountable power can lead to arrogance. That’s why justices typically feel bound by rules and conventions that Scalia seems to take joy in ignoring."

Recall, as Dionne reminds us, 2004, when "three weeks after the Supreme Court announced it would hear a case over whether the White House needed to turn over documents from an energy task force that Dick Cheney had headed, Scalia went off on Air Force Two for a duck-hunting trip with the vice president."

Then there was the speech Scalia gave at Switzerland’s University of Fribourg a few weeks before the court was to hear a case involving the rights of Guantanamo detainees:  "I am astounded at the world reaction to Guantanamo,” he declared in response to a question. “We are in a war. We are capturing these people on the battlefield. We never gave a trial in civil courts to people captured in a war. War is war and it has never been the case that when you capture a combatant, you have to give them a jury trial in your civil courts. It’s a crazy idea to me.”

Dionne does not even mention how Scalia (as well as his fellow conservative justices Thomas and Alito) regularly attend right-wing events and political fundraisers.  (Indeed, Clarence Thomas, in particular, is far quieter, but similarly nakedly partisan and ethically challenged.  See, e.g., here and here.)

Scalia is 76 years old but despite the urging of E.J. Dionne does not appear to be leaving the bench any time soon.  What is of far greater concern is that Justice Ginsburg turns 80 next year and Justice Breyer turns 75.  When you throw in Justice Kennedy (75), you have what the New York Times points out is "among the oldest courts since the New Deal era."  As a result, "the winner of the race for president will inherit a group of justices who frequently split 5 to 4 along ideological lines," suggesting "the next president could have a powerful impact if he gets to replace a justice of the opposing side."

And while it is true that Chief Justice Roberts showed some modicum of sanity in voting to uphold the Affordable Care Act, he has not been magically transformed into the new swing justice.  It should be noted that while the outcome was welcome, his legal reasoning was, as Justice Ginsburg put it, "stunningly retrogressive."  (See 10 Ways John Roberts Is Still A Conservative's Best Friend.)

What shouldn't be lost in all the hoopla over the validation of Obamacare is that the Scalia and the other three dissenters (Thomas, Alito and Kennedy), as Paul Krugman points out, "did so in extreme terms, proclaiming not just the much-disputed individual mandate but the whole act unconstitutional. Given prevailing legal opinion, it’s hard to see that position as anything but naked partisanship."

As I have previously written, Romney's choice of Robert Bork as co-chair of his Justice Advisory Committee is a disturbing sign of the kind of radical jurists Romney would nominate.  (See Romney Gets Borked.)  In the wake of Roberts' "defection," there will be even more pressure on Romney to choose right wing extremists in the Scalia-Thomas mold, a fact he is essentially admitting on the campaign trail.  Dionne is right that Scalia should resign but that isn't going to happen.  But there remains an even more disturbing prospect than Scalia staying put.  It is that a President Romney will  add more right-wing ideologues to the Supreme Court (and throughout the federal judiciary), forming a solid block of partisan operatives.

At Least Those Supreme Court Conservatives Aren't Influenced By The New York Times

Clarence and Virginia Thomas

After the theory that Chief Justice Roberts' vote to uphold ACA was caused by his epilepsy medication didn't fly, the latest conservative narrative making the rounds (thanks to a "scoop" by CBS's Jan Crawford) is that Roberts switched his vote, buckling to external political pressure, and then withstood a ferocious month-long campaign by Justice Kennedy to bring him back around. 

Who knows what truth there is to this story (or who inside the Court leaked it), but I was particularly struck by a remarkable nugget in Crawford's article which describes the conservative wing of the Court, in contrast to Chief Justice Roberts, as impervious to outside influences -- or at least liberal ones.  Thus, while Roberts "pays attention to media coverage," the conservatives, "such as Justice Clarence Thomas, deliberately avoid news articles on the court when issues are pending (and avoid some publications altogether, such as The New York Times). They've explained that they don't want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal."

What the article left out are the right-wing influences on Justices Thomas, Scalia and Alito.  As I've previously written, these three justices have attended, headlined and spoken at political fund-raising events for right wing organizations.   In another piece, Activist Judges, I pointed out that Justice Alito attended a major fundraising event for the notorious right wing magazine American Spectator (notorious for smearing President Clinton with false stories as part of the "Arkansas Project," an effort to get Clinton impeached), and that Justice Scalia and Justice Thomas have also attended secret political fundraisers.

And as stated here, Scalia and Thomas were featured guests at a retreat of wealthy Republicans and conservative leaders organized by Charles and David Koch, the brothers who finance right wing causes from the money they made from their energy conglomerate.  One of the Koch brothers pet causes had long been ending financial regulations on elections.  Indeed, according to Common Cause, they funded many of the groups who filed amicus briefs in the Citizens United case.  What is so unseemly about the appearances of Thomas and Scalia at the Koch Industries-sponsored event is that it occurred while Citizens United was pending before the Court.

And then, of course, there is the influence of Justice Thomas's wife, Ginni Thomas, a right-wing activist and powerful lobbyist, who worked to repeal the health care law.  Thomas was employed by the Heritage Foundation, a right wing think tank, between 2003 and 2007, and then set up a political consulting business, Liberty Central, which is described as an advocate for “liberty-loving citizens" fighting against the left wing "tyranny" of President Obama and the Democrats.

Well, at least the conservative members of the Court are not influenced by the New York Times and other dreaded liberal media.

10 Ways John Roberts Is Still A Conservative's Best Friend

By Ian Millhiser, cross-posted from ThinkProgress

Last week, Chief Justice Roberts embraced a ludicrous, Tea Party reading of the two key provisions of the Constitution, tossing out nearly two centuries of established law in the process. Yet, after he also refused to join a deeply partisan decision tossing out President Obama’s signature accomplishment — agreeing with several leading conservative judges in the process — the right-wing did not waste any time drawing its knives upon him. In just 24 hours, he was accused of everything from caving to non-existent “bullying” to being mentally unfit for duty.

It’s tough to imagine a more flagrant display of ungratefulness than the pushback Roberts is now receiving from his fellow conservatives. The reality is that Roberts consistently advanced the right’s agenda from the moment he joined the Court:

1) Corporate Money In Elections: Roberts jonied the majority in Citizens United, holding that wealthy corporations should have a nearly unlimited power to buy and sell American elections. Roberts also voted to undermine public financing laws in a way that severely undermines candidates without well-moneyed backers’ ability to compete in elections.

2) Judges For Sale: Roberts wrote a dissent in Caperton v. Massey that would have allowed a wealthy coal CEO to pay $3 million to put a sympathetic supreme court justice on that court. The same justice would then go on to $50 million verdict against the big spender’s company.

3) Corporate-Owned Courts: Roberts consistently votes to give corporations a nearly unlimited power to force workers and consumers into a privatized, corporate-run arbitration system that overwhelming favors corporations.

4) Dividing And Conquering Ordinary Americans: Roberts voted in AT&T Mobility v. Concepcion to allow corporations to strip their workers and consumers of their ability to bring class action lawsuits. Because of this decision, corporations now have a nearly unlimited power to cheat the people who do business with them — so long as they only do it a few dollars at a time.

5) Corporate Immunity To The Law: Roberts voted to give generic drug makers immunity to key state laws after one of their drugs caused a condition called tardive dyskinesia in many of the people who took it. Tardive dyskinesia is an horrific neurological condition that causes sometimes crippling, uncontrollable bodily movements, often in the face:

6) Abortion: Roberts also joined the Court’s decision restricting reproductive freedom in Gonzales v. Carhart, which reasoned that a woman’s right to choose must be cut back because “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”

7) Race: Roberts has also consistently resisted attempts to eradicate the legacy of racism in America. Most notably, in Parents Involved v. Seattle School District No. 1, he claimed that a plan to desegregate public schools violates Brown v. Board of Education.

8) Gitimo: Roberts twice sided with President George W. Bush on questions of detainee treatment — as a lower court judge in Hamdan v. Rumsfeld, and as Chief Justice in Boumediene v. Bush.

9) Unequal Pay For Women: Roberts joined the Court’s discredited decision in Ledbetter v. Goodyear Tire rolling back women’s right to receive equal pay for equal work.

10) Older Workers: Roberts also joined the Court’s 5-4 decision in Gross v. FBL Financial Services limiting older workers’ ability to be free from age discrimination in the workplace.

California's Cruel And Unusual Death Penalty 40 Years And $4 Billion After Furman v. Georgia

San Quentin State Prison

40 years ago today, the United States Supreme Court decided Furman v. Georgia, which struck down existing death penalty laws as unconstitutional in violation of the Eighth Amendment's cruel and unusual clause.  California's death penalty was quickly reinstated.

Attempting to comply with Furman, the new statute made the death penalty mandatory for certain first degree murders and other crimes.  But in 1976, the U.S. Supreme Court struck down death penalty laws that provided for mandatory death sentences. The California Supreme Court, relying on the high court's ruling, once again found the state's statute to be unconstitutional.

Undeterred, the California legislature passed a new death penalty law in 1977.  This was followed in 1978 by a ballot proposition, known as the Briggs Amendment, which was similar but more expansive version that sought to encompass more -- virtually all -- categories of murder (including unintentional murders committed during certain felonies).  Briggs passed and it is the law we are living with, so to speak, today.   

Forty years after Furman: $4 billion dollars, over a thousand death sentences, over 720 currently on death row, and 13 executions, none since January 2006.

Tani Cantil-Sakauye, after one year as the Chief Justice of the State of California, has concluded that the state's capital punishment system is "not effective" and requires "structural changes" that the State cannot afford.  Her predecessor, Ron George, who was Chief Justice for 15 years, came to the same conclusion, describing California's death penalty scheme as "dysfunctional."

An extensive study by Arthur Alarcon, long-time judge of the Ninth Circuit Court of Appeal, who, together with law professor Paula Mitchell, determined that California's death penalty system is currently costing the state about $184 million per year.  They concluded that "since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions."

Justice Byron White observed in Furman that:

When imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied.  Nor could it be said with confidence that society’s need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient, or that community values are measurably reinforced by authorizing a penalty so rarely invoked.” 

The infrequency of executions and the randomness with regard to which condemned inmates actually will be executed have made a mockery of the supposedly rational justifications for the death penalty.  In addition, given the current backlog and the serious problems identified by the California Commission for the Fair Administration of Justice (CCFAJ) -- problems that would require an enormous influx of state funds to fix -- it simply is not possible that defendants who are only now being sentenced to death will have their death sentences carried out.  Because it is “so wantonly and so freakishly” used, California’s death penalty has become a wholly arbitrary punishment in the same sense as the death penalty laws that were struck down in Furman.

Justice Potter Stewart famously characterized the Texas and Georgia statutes at issue in Furman as being “cruel and unusual in the same way that being struck by lightning is cruel and unusual.”  What he meant was that of all those who committed death eligible crimes, the petitioners were “among a capriciously selected random handful upon whom the sentence of death has in fact been imposed . . . [and] the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”

Application of Furman’s benchmark for determining arbitrariness demonstrates that only a “capriciously selected random handful” of death-sentenced inmates in California will actually be executed.  A new death row prisoner would have to get in line behind 720 condemned inmates.  He or she would then have to wait years for appointment of appellate counsel (currently a 5 year wait) and even longer for the appointment of state habeas counsel (8-10 years).  Even after these lawyers are appointed and appellate briefs and habeas petitions are filed, the case will not be heard and decided before the several hundreds of cases that have preceded it.  And then, after all this time and expense, the California Supreme Court, in virtually every case regardless of the merits, will uphold the death sentence.   Then the case moves on to federal court, which has its own backlog, and often requires new counsel, with proceedings currently averaging over six years in district court followed by over four years of appellate review. 

Justice White noted in Furman that where the “penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice” it is unconstitutional.  As he stated, when the death penalty “ceases realistically to further [the social ends it was deemed to serve] . . .  its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.  A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

We have far surpassed this point in California.

The SAFE California Act is on the November ballot.  If it passes it would replace California's multi‑billion dollar death penalty with life imprisonment without parole and require those convicted of murder to work and pay restitution to victim families through the victim compensation fund.  It would also set aside $100 million in budget saving for local law enforcement for the investigation of unsolved rape and murder cases.

Please join the effort to replace the death penalty by clicking here:  SAFE California.

Women's, Health Care Groups Applaud ACA Decision While Bishops Attack

By Jodi Jacobson, cross-posted from RH Reality Check

Reaction by women's groups and promoters of health reform to this morning's Supreme Court decision upholding the Affordable Care Act (ACA) was swift and laudatory, though numerous leaders also pointed the gaps that remain to be filled.

In a statement, Robert Greenstein of the Center for Budget and Policy Priorities said:

Today’s Supreme Court decision allows the nation to reap the very substantial benefits of the Affordable Care Act:  health insurance coverage for millions of uninsured Americans, important consumer protections for millions of insured Americans whose coverage has serious gaps, and the promise of progress in slowing the growth of health care costs.

Still, Greenstein noted, "for both states and the federal government, much work lies ahead to establish health insurance exchanges, set up enrollment processes that work smoothly both for the exchanges and Medicaid, and complete other critical tasks by the 2014 deadline. The timeframe is short, particularly in states that have made little progress since the law’s passage."

Women's groups were particularly relieved at the positive outcome of the SCOTUS decision, because, on the whole, the ACA has been considered a huge advancement in coverage of preventive and other forms of care often out of reach of women, who make less than men overall throughout their lives, and who, as they enter retirement, are more likely to be poor.

The decision will have a “profound and concrete impact” on millions of people’s lives, Planned Parenthood Federation of America (PPFA) said today in a statement. Calling the Affordable Care Act “the greatest advance in women’s health in a generation,” PPFA said the law will:

"provide access to birth control and cancer screenings without co-pays, guaranteed direct access to OB/GYN providers without referrals, and an end to discriminatory practices against women, such as charging women higher premiums and denying coverage for “pre-existing conditions.”

In addition, noted the National Women's Law Center (NWLC) millions of women and their families can rest assured they will no longer be denied health coverage for having survived domestic violence or rape, or having had a Caesarean section, that maternity care will be included in all health care plans, and that tens of millions of women will gain financial access to coverage, whether through Medicaid or through help with insurance premiums.


Key benefits of the law that have already been realized, according to PPFA, include the following:

• More than 45 million women have already received coverage for preventive health screenings at no cost since August 2010  – including mammograms and Pap tests – and millions more will be able to get free screenings in the coming years.

• More than 3 million young adults have been able to stay on their parents’ insurance plan under the ACA to date, and in the next year, millions more who would have otherwise lost coverage will continue to be insured under their parents’ plan.

• Women are guaranteed direct access to OB/GYN providers without a referral, as a result of the Affordable Care Act.

• Starting in August, birth control will be treated like any other preventive prescription under the Affordable Care Act, and will be available without co-pays or deductibles.

As a result of the Affordable Care Act, notes PPFA, 17 million women will become newly insured.

Health care providers that focus on family planning increasingly contract with private insurance companies. According to the Guttmacher Institute, 33 percent of all family planning providers now contract with private insurers – and 49 percent of Planned Parenthood health centers have contracts with private insurance companies.

With this decision, "we are closer than ever to realizing the promise of health care for all," said Cecile Richards, president of PPFA.

The National Latina Institute for Reproductive Health (NLIRH) likewise applauded the decision as "a significant victory for Latinas, who are more likely than other groups to face structural barriers that prevent them from accessing health care and preventive services."

“Latinas have historically faced a disproportionate number of barriers to basic health care, and we can now envision a future where those barriers begin to crumble,” said NLIRH executive director Jessica González-Rojas. “Everyone has a fundamental right to quality, affordable health care. Today’s Supreme Court decision is an important step toward making that right a reality.”

Gonzales noted that, since it took effect, the ACA has already helped more than 736,000 young Latino/as retain health care coverage under their parents’ plans until they reach the age of 26, and has eliminated discrimination by health insurers against children with pre-existing conditions. In the coming months and years, she continued:

"ACA provisions will expand access to life-saving cervical cancer screenings and other preventive health services, increase support for community health centers and increase Medicaid coverage. Beginning in August, the ACA also provides access to contraception without expensive co-pays, ensuring that every woman can plan the timing and spacing of her children."

“The Affordable Care Act is a breakthrough in access to health care for Latinas,” said González-Rojas. “Today’s Supreme Court decision ensures that Latinas can make the healthiest decisions for themselves and their families.”

But, while the gains achieved in the ACA are a step in the right direction, Gonzales notes, much work remains to be done.

The law leaves many immigrants without access to essential care. In addition, opponents of expanded health care access continue to launch attacks on numerous benefits included in the law, particularly on the provision for contraception without co-pays. The National Latina Institute for Reproductive Health will continue to advocate for solutions that close these gaps in health care.

However, at least one group, the United States Conference of Catholic Bishops, made clear it would continue to fight to prevent women from accessing affordable reproductive health care under the ACA, using the same specious arguments it has made all along.

In short, today's decision was a huge step forward, but in reality just that... a step forward in an ongoing effort toward ensuring access to affordable health care for all.

Hail To The Chief Justice?

DonkeyHotey

Let's not get carried away by the fact that Chief Justice Roberts voted with the so-called liberal-moderate block to uphold the Affordable Care Act.  Let's not forget, as Ethan Bronner of the New York Times writes, that "in the past, especially on campaign finance law but also on other socially sensitive issues like abortion and affirmative action, Chief Justice Roberts has not shied away from leading a conservative redraft of previously established law, causing some to accuse him of judicial activism."

But with the reputation, perhaps legitimacy, of the Supreme Court at stake, Roberts decided to find a way to validate the Act.

As Steven Teles predicted, Roberts did not want "a direct confrontation with the entire Democratic Party. Striking down the substance of the ACA would have created such a confrontation, and put the Supreme Court at the center of the next election. I don’t think Roberts had a stomach for that."

Teles uses a baseball metaphor to demonstrate the difference between Roberts' approach and that of his fellow conservatives on the bench:

The best way to understand the difference between Roberts and the dissenters is to think of two pitchers who are throwing to a batter who is crowding the plate. The first pitcher throws at the batter’s head, while the second brushes him back. At least in this decision, Roberts decided to be that second kind of pitcher. Roberts wanted to send a signal to the other branches that there are limits on government, and the ACA was really crowding the plate. But he didn’t want to hit the pitcher and invalidate the whole law. So declaring that the mandate violates the Congress’ power under the commerce clause but upholding it as a tax does what Roberts wanted to do: get Congress to pay closer attention to constitutional norms while not precipitating a bench clearing brawl. 

I'm not sure I buy Teles' overarching point (and that of others, such as Laurence Tribe) in the wake of this ruling that Roberts is not really a radical ideologue.  As Ed Kilgore observes, "Roberts exercised 'judicial restraint;' at the same time, however, he managed to deliver not only his 'brush-back pitch' but a nice, easy talking point about ACA relying on a 'tax.'"

And it is unrealistic to think that Roberts has magically undergone some kind of transformation.  As law professor Adam Winkler points out, the Roberts Court has hardly been known before today for its judicial restraint:

Since John Roberts became Chief Justice in 2005, the Court has issued one landmark ruling after another. The Roberts Court gave us Citizens United, which struck down longstanding limits on corporate political spending. This Court also allowed new restrictions on women's right to choose; became the first Supreme Court in American history to strike down a gun control law as a violation of the Second Amendment; effectively outlawed voluntary efforts by public schools to racially integrate; and curtailed the reach of environmental protections.

In many of these decisions, the Roberts Court overturned or ignored precedent, including Rehnquist Court decisions less than a decade old. Prior to Citizens United, the Supreme Court had explicitly held in two cases that corporate political expenditures could be limited -- the most recent of which was handed down in 2003. Six years before the Roberts Court upheld the federal ban on "partial birth" abortion, the Rehnquist Court, which wasn't known for its liberal leanings, had overturned a nearly identical law.

Significantly, although Roberts agreed with the four conservative justices that the individual mandate was not a regulation of interstate commerce, he ultimately voted to uphold the constitutionality of the mandate by characterizing it as a tax.  While his vote saved the Act, Justice Ginsburg cautioned that Roberts' view comprised a "novel constraint on Congress’ commerce power." 

In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments. According to The Chief Justice, the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive.

As Amy Davidson notes, “stunningly retrogressive” is not the phrase most people are using this morning to describe Roberts’s opinion; he is being celebrated as a moderate, called a disappointment to conservatives. But Ginsburg’s caution is worth watching. (See Professor Tobias Wolff's comments on the extraordinarily disruptive potential of Roberts' reasoning.)

But, as Winkler notes, "with this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president's signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn't want to go there."

Chief Justice Roberts undoubtedly had the Court's institutional legitimacy and his own reputation in mind when he voted to uphold the Affordable Care Act.  And, more disturbingly, as Winkler predicts:

Roberts may have voted to save healthcare because he wants to preserve the Court's capital to take on other big issues heading toward the Court. Legal experts predict the Roberts Court will invalidate a key provision of one of the most important laws in American history, the Voting Rights Act, next term. And the Court is set to end affirmative action in public education. Both policies have been centerpieces of America's commitment to civil rights for over 40 years.

It is therefore ridiculous to analyze Roberts' legacy based on this one ruling.  As Winkler concludes, "The Roberts Court has only just begun."

The Affordable Care Act Survives

DonkeyHotey

Before the Obama Administration embraced individual mandates as a compromise to push through health care reform, it was a Republican idea (endorsed, of course, by then-Governor Romney).  And when Republican state Attorneys General began challenging the constitutionality of the law their actions were viewed with derision by most legal scholars.  And prior to oral argument in the Supreme Court, it was widely assumed that the law would be upheld.  Since then dire predictions about the fate of the law, of health care for Americans, and of President Obama's re-election prospects have dominated the media.

It was perilously close -- another 5-4 decision -- and it took Chief Justice Roberts to side with the majority in upholding the Affordable Care Act because the usual swing vote, Justice Kennedy, dissented.

From Scotusblog:

Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Monday upheld the constitutionality of the crucial – and most controversial — feature of the Affordable Care Act.   By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t.  That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed.  The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form.

As Greg Sargent explains:  "The court ruled that the mandate is defensible as a 'tax.' In so doing, it supported the administration’s argument that it’s within the proper scope of federal authority to incentivize the purchase of health insurance, in order to expand coverage to millions of Americans who have been left behind by the private market."

Democrats will breath a sigh of relief while Republicans plot their next move to gut the law.  Which brings up a fascinating point about the entire debate on health care:  how our polarized politics have radically altered what used to be a bi-partisan consensus on at least the ultimate goal --  providing health care to all Americans.

Ezra Klein explains that there was not always such a stark divide between Democrats who are committed to "provide every American with health insurance" and Republicans who are committed to "prevent any American from being forced to have health insurance."

Democrats and Republicans used to argue over how best to achieve universal coverage, but both agreed on the goal. The first president to propose a serious universal health-care plan was Harry Truman, a Democrat. The second was Richard Nixon, a Republican. In the 1990s, when President Bill Clinton was arguing for a national health-care system based on an employer mandate, Republicans were arguing for one based on an individual mandate.

In the 2000s, Romney used the individual mandate to make Massachusetts the first state to actually achieve near-universal coverage. On the national level, Republicans as diverse as Newt Gingrich, Lamar Alexander and Lott joined him. Republicans sometimes like to present their support for the individual mandate as a youthful indiscretion, but as late as June 2009, Charles Grassley, the ranking Republican on the Senate Finance Committee, was telling Fox News that “there is a bipartisan consensus to have an individual mandate.” 

As Klein concludes:  "The battle over the Affordable Care Act has largely distracted voters from this tectonic shift in the Republican Party. Yet unlike in past elections, in which even the most conservative Republicans argued that we should 'ensure that all Americans would have affordable, quality, private health coverage,' voters this year will choose between one party that supports universal health care and one that doesn’t, with health insurance for as many as 50 million voters hanging in the balance."

Supreme Court Politics

DonkeyHotey

It was a big -- and telling -- day at the high court even without the highly anticipated Affordable Care Act decision, which is now expected to be issued on Thursday.  As I wrote earlier, Justice Scalia's raving dissent about state sovereignty in the Arizona immigration case starkly illustrates that he is more of a political operative than an impartial judge.

And, not surprisingly, Scalia's obeisance to states' rights was nowhere in evidence in another case decided today, a case in which a 5-4  majority struck down Montana’s 100-year-old anti-corruption law banning corporate spending on elections without ever hearing arguments in the case.  As Nicole Flatow at American Constitution Society summarized:  "Although Montana’s law was intended to combat corruption in election spending, the five-justice majority held in a paragraph-long decision that this case was controlled by Citizens United, which found that independent expenditures by corporations 'do not give rise to corruption.'” 

Flatow points out that, "A supermajority of Montanans thought otherwise when they passed the Corrupt Practices Act in 1912," and as Justice Stephen Breyer wrote in his dissent, “Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”
 
Breyer's dissent, joined by Justices Ginsburg, Kagan and Sotomayor, pointedly concluded as follows:

Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United or, at least, its application in this case. But given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration. Consequently, I vote instead to deny the petition. 

And there you have it.  As Amy Davidson notes, "Breyer is saying that he does not trust the majority enough to even listen, and would rather that it not hear the case at all; since he was joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, that means the four of them didn’t believe that a single of the other five Justices had been at all chastened by the consequences of Citizens United."

And so, E.J. Dionne pleads:

Will everyone please finally admit conservatives actually don’t care a whit about states’ rights unless invoking states’ rights happens to be helpful to the conservative agenda? Conservatives on the court have become complete and utter hypocrites on the matter of what states can and can’t do.

This has stuck in my craw for a long time. Recall that the Supreme Court had absolutely no qualms about telling the state of Florida in 2000 that there was no way it could recount its votes in a fashion that would be satisfactory, and never mind that the Florida Supreme Court had ruled in favor of recounts. Those recounts might have gotten in the way of George W. Bush’s elevation to the presidency. Face it: If states’ rights are inconvenient to the outcome conservatives want, conservative justices will find a way to supersede them.

James Fallows recently wrote with regard to the Affordable Care Act case that "confidence in the very idea that the Roberts majority will approach this as a "normal" legal matter, rather than as one more Bush v. Gore front in the political wars, grows ever harder to maintain."

Which leads Ed Kilgore to draws what to me is the most critical lesson, whatever happens with the health care decision:

But it’s becoming more obvious each day that the judicial counter-revolutionaries of the Supreme Court don’t need the crisis atmosphere that they used to justify Bush v. Gore to continue its legacy. Indeed, it seems to have become the only precedent the majority reliably respects. Maybe they will surprise us all on Thursday and step back from the brink. But without question, if another seat on the Court falls their way, the constitutional substructure of every 20th century social accomplishment from the New Deal to the Civil Rights Act to the Clean Air Act to the right to an abortion is in immediate danger. And anyone who remembers that strange night in 2000 when the Court’s Republican appointees decided to seize the opportunity to choose a president should not be surprised.

Supreme Court Bans Mandatory Life-Without-Parole For Children Convicted Of Homicide

Bryan Stevenson

In Miller v. Alabama and Jackson v. Hobbs, the Supreme Court holds that mandatory life-without-parole sentences for all children 17 or younger convicted of homicide are unconstitutional.  (I wrote about these cases earlier here.)  Both cases were argued by the brilliant and heroic Bryan Stevenson.

Here is a summary of this great outcome from Equal Justice Institute of which Bryan is the founder and executive director:

The Court today struck down statutes in 29 states that provide for mandatory life-without-parole sentences for children, reasoning that mandatory imposition of life-without-parole sentences on children “contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.”

"This is an important win for children. The Court took a significant step forward by recognizing the fundamental unfairness of mandatory death-in-prison sentences that don't allow sentencers to consider the unique status of children and their potential for change," said Bryan Stevenson, Executive Director of the Equal Justice Initiative, who represents Jackson and Miller. "The Court has recognized that children need additional attention and protection in the criminal justice system.”

Today’s decision requires the lower courts to conduct new sentencing hearings where judges will have to consider children’s individual characters and life circumstances, including age, as well as the circumstances of the crime.

While the Court did not categorically ban juvenile life without parole in all circumstances, Justice Kagan wrote for the majority that, “given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”

Stevenson cautioned, however, that sentencing courts’ discretion must be exercised in an informed and thoughtful way that acknowledges that children are biologically different than adults and less responsible for their wrongdoing, and that the courts should provide the individuals affected by the ruling a meaningful opportunity to show they have rehabilitated themselves and are appropriate candidates for release.
Stevenson added that historically, race and poverty have been powerful forces in influencing which children receive life-without-parole sentences.

Today's decision follows the Court's earlier rulings in Roper v. Simmons (2005) and Graham v. Florida (2010), which acknowledge the diminished culpability of children.

Groups as diverse as the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, the Council of Juvenile Correctional Administrators, the American Bar Association, mental health professionals, former juvenile court judges, criminologists, victims, and national advocacy organizations filed amicus briefs in the cases to urge the Court to give children an opportunity to have their sentences reviewed later in life.

The Supreme Court Strikes Down Much Of Arizona's Anti-Immigration Law While Scalia Rants

The Supreme Court issued its much-anticipated ruling on Arizona's harsh anti-immigration law, upholding the most controversial part of the law -- but striking the rest.

As the New York Times reports:

The court unanimously sustained the law’s centerpiece, the one critics have called its “show me your papers” provision. It requires state law enforcement officials to determine the immigration status of anyone they stop or arrest if there is reason to suspect that the individual might be an illegal immigrant.

The justices parted ways on three other provisions. Justice Anthony M. Kennedy, writing for five members of the court, said the federal government’s broad powers in setting immigration policy meant that other parts of the state law could not be enforced. 

The provisions that were struck included Section 3 criminalizing the failure of persons to carry immigration documents; Section 6, barring undocumented immigrants from seeking work; and Section 6, allowing warrantless arrests when an officer has probable cause to believe a person who has committed a crime is undocumented.

One of the more fascinating -- and disturbing -- aspects of the decision was Justice Scalia's raving dissent from the portion of the majority opinion that blocked implementation of the Arizona law.

As Ben Jacobs writes, "the conservative icon rails against the court’s decision over 22 pages and makes strained claims for Arizona’s continued ability as sovereign state to regulate immigration while citing dubious authorities like the notorious Kentucky and Virginia Resolutions (documents written anonymously by Madison and Jefferson that have repeatedly been rejected by the court over the past 200 years when cited by segregationists and secessionists)."

Here's an excerpt:

But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Govern­ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?

A good way of answering that question is to ask:  Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding [that the national government has supreme jurisdiction over immigration policy]?

Huh?  As Jed Lewison at Daily Kos puts it:  "So according to Scalia's logic, SB1070 is constitutional because Arizona wouldn't have entered into the Union if it weren't. Brilliant!"

Remarkably, Scalia criticized the Administration's immigration policy and specifically went after Obama's recently-announced executive order to stop the deportation of  children whose parents illegally entered the country -- which post-dated and had nothing to do with this case: 

It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30.
[For certain illegal immigrants] immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.” The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conduct­ing as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.

As UCLA law professor Adam Winkler, Scalia has "finally jumped the shark":

He claims to respect the founding fathers, but his dissent channels the opponents of the Constitution. Back then, opponents argued that the Constitution denied states their sovereignty by giving too much power to the federal government, as with immigration. Now Scalia echoes their complaints that states are being denied their sovereignty. States are not sovereign when it comes to powers vested in Congress, such as the authority over immigration and naturalization.

 Ben Jacobs rightly concludes that "The health care decision is only days away and it is explicit that at least one justice is making his decisions on political grounds."

Corporate Takeover At The Supreme Court

I've written previously about the unprecedented pro-corporate bias of the current conservative majority of the Supreme Court, and the insidious role played by the U.S. Chamber of Commerce in getting the Court to hear business cases and to rule in favor of business interests.  (See, e.g., here, here and here.

The Constitutional Accountability Center points out that "without much fanfare, the U.S. Chamber of Commerce is edging towards what could be its first 'perfect' Term before the Supreme Court since at least 1994."  It has "declared victory in all seven of its cases that have reached a clear outcome," which "brings the Chamber’s overall win/loss rate before the Roberts Court up to 68% (60 of 88 cases)."

As CAC's "prior studies establish, this is significantly higher than the Chamber’s success before the Rehnquist Court of 56% (45 of 80 cases), and dramatically higher than its success rate before the Burger Court, when the Chamber only won 43% (15 of 35) of its cases."

Justice Scalia: The Opportunistic Originalist

By Jeremy Leaming, cross-posted from American Constitution Society

DonkeyHotey

We likely shouldn’t be surprised by Justice Antonin Scalia’s “flip-flop,” as TPM puts it, on precedent supporting modern understanding of the Constitution’s commerce clause.

TPM’s Sahil Kapur reports that in his forthcoming book, Scalia says the Supreme Court’s 1942 opinion in Wickard v. Filburn wrongly construed the scope of the commerce clause. As Kapur and many others have noted, including the Obama administration, Scalia cited Wickard in a 2005 opinion concluding that a law barring personal cultivation of marijuana for medical use was not beyond the scope of the commerce clause.

In that case, Gonzales v. Raich, Scalia lodged a concurring opinion, citing precedent in holding, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

In an e-mail to TPM, constitutional law expert Adam Winkler wrote, “This is typical Scalia.”

Winkler, a law professor at UCLA, continued:

He respects precedents when they fit his conservative ideology and disregards them when they don’t. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What’s changed is the political implications of the commerce clause. When it’s being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law.
Once again, we see that Scalia’s orginalism is a charade.

There is also the spectacle of oral argument, where Scalia not only revealed a wobbly understanding of the health care insurance system but affinity for the simplistic, but radically libertarian arguments lobbed against the Affordable Care Act’s minimum coverage provision. The minimum coverage provision is integral to the health care reform law, requiring those who can afford to do so to obtain a minimum amount of the health care coverage starting in 2014.

The provision was quickly attacked by the Right as a dire threat to liberty. If the government were able to require many indiviuals to purchase health care insurance, then surely it could also force individuals to buy broccoli and gym memberships, the law’s opponents argued.


In an ACS Issue Brief, Simon Lazarus blasted the arguments against health care reform as constituting a “bold bid for historic, sweeping constitutional change. If successful, they would be a major step toward reinstating the web of tight constitutional constraints on congressional authority, known as ‘Lochnerism,’ which conservative Supreme Court majorities repeatedly invoked during the first third of the 20th century to strike down economic regulatory laws.”

The Supreme Court’s opinion on the constitutionality of the health care law is coming sometime this month, unless the justices decide the case is not ready to be challenged.

During her featured remarks at the ACS 2012 Convention, Justice Ruth Bader Ginsburg touched upon the rampant media speculation surrounding the challenges to the health care reform law, the likelihood of more sharply divided opinions to come, and the impact of Supreme Court dissents.

In noting the challenges to the minimum coverage provision, Ginsburg said, “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

See video of Ginsburg’s remarks here.

Courting Disaster: What Romney Would Do To Our System Of Justice

As I have previously written, Romney's choice of Robert Bork as co-chair of his Justice Advisory Committee is a disturbing sign of the kind of radical jurists Romney would nominate to the federal bench.  (See Romney Gets Borked.)  Not to mention what Romney could do to the Supreme Court -- which is already the most conservative it has been since the 1930s -- if given the opportunity.  (See Supreme Court Matters.)  As the economy faulters and Obama's gaffes get picked apart, it is critical to focus on how disastrous a Romney Presidency would be for our system of justice.  -- Lovechilde

A Romney Presidency Could Mean A Hostile Takeover Of The Federal Courts

By Jessica Mason Pieklo, cross-posted from RH Realty Check

As it stands the state of the federal judiciary is one of crisis. More than 160 million Americans live in a community with a federal court vacancy. Additional funding cuts threaten to shut down courts or suspend trials in some areas which means individual seeking justice for claims must wait longer, if they have access to the courts at all. Judicial vacancies not only stress the functioning of the federal judiciary, they threaten the ideological stability as well. A significant reason the federal judiciary is chronically understaffed is because Congressional Republicans refuse to act on nominees out of partisan and ideological spite. The result is a federal bench significantly lacking in any diversity rendering judgments over an increasingly diverse population. Sounds bad, doesn't it? It is, and if Mitt Romney wins the presidency, it will only get worse.

Early in his tenure as governor of Massachusetts, Romney developed a reputation as a man with an eye toward good governance and transparency. His early judicial appointments reflected a wide array of ideologies and experiences and Romney even undertook more substantive structural reforms to combat the practice and perception of political cronyism in judicial nominations.

But it quickly became clear that in order to advance his political career Romney would have to embrace a harder-line conservatism in both ideology and approach to the courts. Chronicles of Romney's political evolution from moderate to hard-right plutocrat are not difficult to come by, but it is his approach to the courts, their independence and their function that deserves much closer scrutiny. And that scrutiny shouldn't be limited to simply the kind of judges a President Romney would appoint to the federal bench, but how his administration would help or hinder the function of the courts in its entirety.

If Romney's early judicial selections as governor of Massachusetts illustrate a belief in the necessity of an independent and ideologically diverse judicial system, his later selections show an embrace of rigid conservatism and the benefits of political payback. In Massachusetts Romney went from nominating openly gay judges to beneficiaries of Bain capital and from embracing oversight of the judicial nomination process to openly working against it.

Fast forward to Romney's current presidential run. Under any other political climate than the current one, having failed Supreme Court nominee Robert Bork as a judicial advisor would be considered a political liability at best and the end of any serious presidential wish at worst. After all, Bork's political and legal career first drew attention back in 1973 when as solicitor general and under direct order from then-President Nixon, he fired Archibald Cox as special prosecutor in the Watergate cover-up. Bork's views on civil rights, including the idea that because women make up a majority of the population gender discrimination is an impossibility, and his belief that integrating public accommodations under the 1964 Civil Rights Act was an "unsurpassed ugliness," would eventually go on to shape a belief that the judiciary must bend its will to that of the people unless expressly prohibited by the Constitution.


If that sounds a bit obtuse let's ground it in the current debate on women's reproductive rights. At least one sitting U.S. Senator is calling on conservatives to simply ignore the mandates of Roe v. Wade and establish fetal personhood via the 14th Amendment. That call to ignoring the rule of law because it is an affront to the will of the "people" is directly out of the Robert Bork playbook.
Combine Bork's ultraconservative orthodoxy when it comes to the federal courts, his shared religious conservatism with Romney and add Romney's deep ties to the private equity world and we could expect most judicial nominations would fit the mold of Samuel Alito – social conservatives with deep and loyal ties to the monied world.

Declaring that a President Romney would appoint staunch conservative judges and practitioners to the federal bench is admittedly not much of a declaration. Place those ultra-conservative justices in a system already structurally strained and stressed from a decade of political attacks and suddenly the federal courts start to look an awful lot like those businesses Romney the private equity baron would take over and kill off.

The obvious problem with that scenario is that we're talking about the federal courts and not a private company on the verge of bankruptcy and prime for a hostile take-over.

Romney may have started his political career in Massachusetts as an advocate of judicial reform, but he did not end it as one. And with the state of our federal judiciary already in crisis the last thing this country can afford is an administration that drives the law further right while dismantling the courts from within.

Justice Stevens' Reasoned Takedown Of Citizens United

By Jeremy Leaming, cross-posted from American Constitution Society

At some point perhaps soon the U.S. Supreme Court’s conservative wing will have to reckon with some of its sweeping assertions in its controversial 2010 Citizens United v. FEC majority opinion.

Retired Supreme Court Justice John Paul Stevens in a methodical, thoughtful speech at the University of Arkansas Clinton School of Public Services detailed why he thinks some of the holding in Citizens United is due for reconsideration.

Stevens’ former colleague Justice Samuel Alito mouthed “not true” during President Obama’s 2010 State of the Union address when the president said Citizens United could “open the floodgates for special interests – including foreign corporations – to spend without fault in our elections.”

But the majority opinion, Stevens said “placed such heavy emphasis on ‘the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.’”
“Indeed,” Stevens continued, “the opinion expressly stated, ‘We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.’”

Stevens said:

Given the fact that the basic proposition that undergirded the majority’s analysis is that the First Amendment does not permit the regulation of speech – or of expenditures supporting speech – to be based on the identity of the speaker or his patron, it is easy to understand why the president would not have understood that ambiguous response to foreclose First Amendment protection for propaganda financed by foreign entities.
But Justice Alito’s reaction does persuade me that in due course it will be necessary for the Court to issue an opinion explicitly crafting an exception that will create a crack in the foundation of the Citizens United majority opinion. For his statement that it is ‘not true’ that foreign entities will be among the beneficiaries of Citizens United offers good reason to predict there will not be five votes for such a result when a case arises that requires the Court to address the issue in a full opinion.

The former justice, the third longest serving justice on the high court, also pointed to an opinion, one he joined, that followed Citizens United. In Holder v. Humanitarian Law Project, the majority held that Congress can bar material support of terrorist groups, even if that support is advice on how to conduct peaceful protests.

“As Justice Breyer correctly noted,” Stevens said, “the proposed speech at issue was the kind of political activity to which First Amendment ordinarily offers its strongest protection. Nevertheless, under the Chief Justice’s opinion, the fact that the proposed speech would indirectly benefit a terrorist organization provided a sufficient basis for denying it First Amendment protection.”

So while the Citizens United majority claimed that political speech must receive sweeping protection regardless of the identity of the speaker, it looks as though the majority is going to have to start creating some categories here.

“Could the Court possibly conclude that expenditures by terrorist or foreign agents in support of a political campaign merit greater First Amendment protection than their actual speech on political issues? I think not. Indeed, I think it likely that when the Court begins to spell out which categories of non-voters should receive the same protections as the not-for-profit Citizens United advocacy group, it will not only exclude terrorist organizations and foreign agents, but also all corporations owned or controlled by non-citizens, and possibly even those in which non-citizens have a substantial ownership interest.”

Stevens provided more explanation of why he thinks Congress will be able to “impose more restrictive limitations on campaign speech than on issue advocacy.” See his entire remarks here, made available by The Huffington Post.

As The Huffington Post’s Mike Sacks notes and this blog has too the high court may have another vehicle to reconsider the sweeping majority opinion in Citizens United.

Last year the Montana Supreme Court upheld its longtime Corrupt Practices Act, a tough regulation of corporate financing of its elections. In doing so the Montana Court blasted the Citizens United majority opinion, and said it did not mean the state had to dump its strong campaign finance law. The justices may consider to review the case, and numerous public interest groups are encouraging the Supreme Court, if takes the case for review, to curtail its sweeping assertions advanced by the Citizens United majority.

Getting Away With Torture

DonkeyHotey

Jose Padilla, an American citizen, was arrested in 2002, at Chicago’s O’Hare International Airport on suspicion of plotting to detonate a dirty bomb.  He was designated by President Bush as an "enemy combatant," denied a civilian trial, and held in a military prison for three-and-a-half years where he was tortured.  As an editorial in the New York Times states:

[He] was denied contact with his lawyer, his family or anyone else outside the military brig for almost two years and kept in detention for almost four. His jailers made death threats, shackled him for hours, forced him into painful stress positions, subjected him to noxious fumes that hurt his eyes and nose and deafening noises at all hours, denied him care for serious illness and more.

Padilla was eventually tried in federal court on criminal conspiracy charges and found guilty in 2007 for conspiring to kill people in an overseas jihad and to fund and support overseas terrorism. He was neither charged or convicted of planning to detonate a dirty bomb. He was sentenced to 17 years and four months in prison.

Padilla sued John Yoo, the former Bush Administration official who authored the infamous torture memos. (Padilla sought damages of $1.)   In case you've forgotten:

A Yoo memo from 2001 advised that the military could use “any means necessary” to hold terror suspects.

A 2002 memo to then-White House Counsel Alberto Gonzales advised that treatment of suspected terrorists was torture only if it caused pain levels equivalent to “organ failure, impairment of bodily function or even death.”

Yoo also advised that the president might have the constitutional power to allow torturing enemy combatants.

Most famously, Yoo was the principal author of a memo sent to the CIA in August 2002 authorizing “waterboarding,” in which water is poured over the face of a bound detainee and simulates drowning.

The Ninth Circuit reversed a 2009 ruling by federal district court judge who had held that the lawsuit could go forward.  According to the Ninth Circuit, Yoo was not personally liable because "regardless of the legality of Padilla's detention and the wisdom of Yoo's judgments, at the time he acted the law was 'not sufficiently clear that every reasonable official would have understood that what he was doing violated' [Padilla's] rights."

The Court assumed that Padilla was tortured but found that Yoo had qualified immunity for two reasons:

First, . . . it was not “beyond debate” at that time that Padilla .   — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal.

Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.

This nearly insurmountable burden, of having to establish that a government official's violation of a citizens rights was "beyond debate" stems from the U.S. Supreme Court's decision last year, in Ashcroft v. Al-Kidd.  The Times explains why this standard is unworkable:

The Bush administration manufactured both “debates” — about torture and enemy combatants. Any future government can rely on this precedent to pull the same stunt as cover for some other outrage.

By using the “enemy combatant” category, the Bush administration stirred debate that had not existed about whether rights of an American citizen in custody depend on how he is classified. By coming up with offensive rationalizations for torturing detainees, it dishonestly stirred debate about torture’s definition when what it engaged in plainly included torture.

Yoo, minimizing his role as limited to providing "legal advice that the Constitution allows the military detention of Americans who join al Qaeda," complains in the Wall Street Journal that the Obama Administration failed to defend him in the lawsuit.  He is concerned that "worrying about future lawsuits will distort official decision-making, which should balance the costs and benefits to the national interest and not worry about personal liability."

As an amicus brief filed by law professors explained, “Yoo did not merely give ‘wrong’ advice in performing customary legal duties," rather "he acted outside of his legal role altogether by participating directly in the formulation of policy that gave rise to the deprivation of [Padilla’s] constitutional rights and by creating legal cover for unlawful detention and interrogation policies.”

As the Times concludes, the Ninth Circuit was wrong to "dwell on whether Mr. Padilla’s mistreatment was torture. Even if somehow it did not qualify, its cruel, inhumane and shocking nature badly violated his rights as a citizen — and international law on the treatment of detainees. Even at the time, the issue was beyond debate, and Mr. Yoo should have known that."