Tag: Supreme Court of the United States

The Man Who Can’t be King

SCOTUS again today. The Court struck down — unanimously — the President’s “recess” appointments to the National Labor Relations Board. I wrote about this before. Congress was in pro forma session and refusing to consider the President’s appointments to various agencies. The President argued they were effectively in recess and appointed people anyway. The Court has now unanimously struck that down with Scalia basically trashing the entire idea of recess appointments as an anachronism. I agree.

This will invalidate some or perhaps all of the decisions made by the NLRB over the recent past. I expressed concern about this before but as hist_ed pointed out, those decisions were illegal (and some were in limbo anyway, pending this case).

For those of you counting: according to Ilya Shapiro, this makes twelve times in the last two and a half years that the Court has unanimously rejected the Obama Administration’s expansive view of federal and executive power. And the liberals still think we’re crazy when we say Obama is over-reaching.

The Death of the Judiciary

So this was happening:

A member of the Oklahoma House drafted a resolution Wednesday seeking the impeachment of state Supreme Court justices who granted a delay of execution to two death row inmates.

Republican state Rep. Mike Christian told The Associated Press that the five justices engaged in a “willful neglect of duty” when they granted stays of execution Monday to Clayton Lockett and Charles Warner, both of whom were scheduled to be executed this month.

Lockett and Warner, who aren’t challenging their convictions, have filed a civil lawsuit seeking the source of the drugs used to execute them. Pending the resolution of that lawsuit, they asked for a stay of execution.

The Court of Criminal Appeals has said it couldn’t weigh in on the delay of execution because it didn’t have the power or the authority, so the high court said a “rule of necessity” led to its decision Monday. Under the state constitution, the Supreme Court handles civil cases while the Court of Criminal Appeals takes those involving inmates.

The Court later dissolved the stay.

At issue here is that the State of Oklahoma is refusing to reveal the drugs they use to execute people. Ostensibly, this is to protect companies that manufacture those drugs from being harassed by anti-death-penalty activists.

I’ll get into the merits of the case in a moment. But what I want to focus on is what I see as a looming threat to an independent judiciary. Over the last couple of decades, we have seen a slow push to gradually eviscerate the independence of the judicial branch. Politicians rail against “activist judges”, each political side screams blue murder when SCOTUS rules against them and now we finally have impeachment proceedings because of a disagreement with a court. And this isn’t confined to conservatives. Every time SCOTUS rules against liberals, there are cries to impeach the justices or at least limit their terms (conveniently to just after the last Republican President left office).

While these cries might be satisfying to those who rail against “activist” judges and are still fuming from either the Obamacare or the Citizens United decision, I see this as fundamentally dangerous to liberty. Because the protection of our liberty and our Constitutional rights requires an active independent judiciary. Both sides should understand this. Conservatives have won key victories in cases like Heller because the bench decided to act against the “will of the people” as expressed through their legislature. And some of our most bitter defeats — Kelo and Obamacare, in particular — have come about because the judiciary wasn’t activist enough and wouldn’t overturn a law. Liberals have also won key victories — like last year’s gay marriage decision — when the judiciary has over-ruled the “will of the people”.

In the end, this boils down less to any real philosophy about the role of the judicial branch than to whining whenever that branch doesn’t do what we want. Objecting to bad court decisions is fine. In fact, I think it’s required in a healthy Republic. But the tone of the last few years had turned away from criticism to active attacks and calls to limit the independence of the judiciary.

This trend worries me. I have expressed this concern before, but it’s worth repeating. I fear that we are slowly moving toward a regime where there is basically no one protecting our Constitutional rights. Congress and the President rarely, if ever, consider the Constitutionality of their laws. They say that’s for the Courts (in fact, Bush said exactly this when signing the blatantly unconstitutional McCain-Feingold Law). Everyone seems to agree that Presidents are just supposed to enforce the law, never bother with whether those laws violate our basic freedoms (with the exception of the occasional veto). And with the railing against courts for “ignoring the will of the people/legislature”, we’re moving away from judicial review as well. So given these facts, who the hell is defending our Constitutional rights? Jon Stewart?

This is the complete opposite of how things should be. When the government acts, the branches of our government should be like the officers in a nuclear missile silo — nothing happens unless all three turn their keys. All three have to agree that it is within the power of government; all three have to agree that it does not violate our Constitutional rights. Congress must not pass laws that violate the Constitution; the President must veto ones that do and refuse to use unconstitutional powers that the legislature gives him*; the Courts must bounce any law that violates the Constitution.

(*To be clear, this doesn’t mean the President should act on his own or rewrite laws or ignore laws. This power, which would be used very rarely, would only be used in the negative sense of the President refusing to utilize powers that he deems unconstitutional, such as if Congress suspended habeas.)

Now as to this particular case: some commentators are avoiding talking about what the criminals did. I won’t. One shotgunned a teenager and buried her alive. The other raped and murdered a child. While I am neutral on the death penalty, these would probably be the guys you would want to apply it to.

But the issue here is not the horrible crimes that these vermin committed. The issues it that Oklahoma is using a secret recipe for lethal injection — a formula that tonight resulted in the botched execution of one of the two men in this case. When the methods of execution are secret, there is literally no way to decide if it constitutes cruel and unusual punishment.

Now maybe you think with what these guys did, they deserve to suffer. But we have laws and a Constitution for a reason and that reason is to protect everyone from the excesses of government. And when you chip away at anyone’s Constitutional rights, you chip away at everyone’s. The destruction of our Constitutional liberties always starts with people who everyone agrees are despicable, before proceeding to the rest of us. Free speech killers don’t start with Sesame Street; they start with the Klan and the Nazis. Surveillance fetishists don’t start with your backyard; they start with terrorists. And attacks on the protections in our criminal justice system don’t start with some kid smoking pot; they start with murderers and child molesters. There is good reason to believe that at least one innocent man has been executed and a new study claims that one in 25 death row inmates, and perhaps more, are innocent. Do they deserve to suffer?

We can not yield on Constitutional rights, not even with these pieces of human debris. Because once the freedom destroyers gain an inch, they will ask a mile.

But … even if we posit that the Court was wrong to delay these executions, a call for impeachment is ridiculous overkill. The Court did not set them free, commute their sentences or bake them cookies. They simply delayed their executions (as it turned out, for a few days). If the Courts are in danger of impeachment every time they make an unpopular decision, we might as well just do away with the Courts. Try people on Oprah and execute them on Springer. Who cares if innocent people are killed cruelly? It’s what the people want, isn’t it? That’s what baby rapists and child killers deserve, isn’t it?

An independent judiciary is going to make some mistakes and some bad decisions. But a non-independent judiciary that is subject to the whims of the mob is going to make bad decisions constantly. We already have two of our branches constantly doing the wrong thing. Do we really need the third to join in the fun?

P.J.’s Amicus Brief

If you like the work of P.J. O’Rourke — or political satire in general — you must read the amicus brief that he filed in the case of Susan B. Anthony List v. Driehaus. The case concerns an Ohio law that bans false statements about political candidates. SBA said that Driehaus supported taxpayer-funded abortions because he voted for Obamacare, Driehaus sued. Cato is arguing that false statement about politicians are protected speech so they hired a satirist to write the brief. No legal speak, just genius:

[W]here would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America?

Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular-humanist professors of Chicano studies.

That’s just a sample. O’Rourke actually makes the case very plainly that telling massive lies and half-truths about opposing politicians is a time-honored tradition (just ask Mitt Romney, whom the Democrats claimed killed a woman by cutting off her healthcare). He makes the case that the Court should err heavily on the side of free speech and that this law would have a chilling effect. He argues that the best response to free speech is more free speech. I agree.

And be sure to read the footnotes. Sample:

Driehaus voted for Obamacare, which the Susan B. Anthony List said was the equivalent of voting for taxpayer-funded abortion. Amici are unsure how true the allegation is given that the healthcare law seems to change daily, but it certainly isn’t as truthy as calling the mandate a tax.


Update: Thinking about this some more, I think this may be one of the more important cases before the Court this year.

The Left Wing has been gnashing their teeth for a long time on their perception that the Right Wing wins because they lie their socks off. Bush only won in 2004 because the Swift Boat Veterans lied, Obamacare is only unpopular because the Right Wing lies about it, the Republicans only took Congress because of Tea Party lies, Iraq only happened because Bush lied, etc. etc. They have long wanted a “truth detector”, as Bill Clinton put it, to make sure that Americans’ minds are not clouded by the prevarications of the evil Fox News.

The Ohio Law is born of this belief. It sets up the state as an arbiter of what is and is not true and then brings criminal sanctions down on those whom the state deems to have lied. Notably, it exempts politicians from lying about themselves, since they are unlikely to say defamatory things about themselves. When you add in, as I have frequently noted, that some of the “facts” being checked are not, in fact, facts at all, but opinions of what will happen (2013’s “Lie of the Year” — that you can keep your healthcare if you want it — was fact-checked as “true” before the law was actually written and enacted), the danger of this law becomes clear.

This law can’t be smacked down hard enough.

SCOTUS Takes On Blago

This could be interesting:

A 55-year-old woman who earns less than minimum wage caring for her disabled son could unravel decades of labor law and strike a blow against one of the most powerful political lobbies in the nation.

Pamela Harris is fighting an Illinois law crafted by imprisoned former Gov. Rod Blagojevich (D.) and enforced by his successor Pat Quinn (D.) that forces her and other home healthcare workers to pay union dues. Her case, Harris v. Quinn, begins oral arguments at the Supreme Court on Tuesday morning

“I don’t want to be the face and name associated with anti-union campaign, but this is at its heart a mother doing what she thinks is right for her son,” she told the Washington Free Beacon. “I don’t see this as a union issue, but the current administration in Illinois has an unhealthy relationship with public sector unions. We got swept up in that.”

Ms. Harris provides care to her son, who has a very rare disease that leaves him completely disabled. However, because she gets payments from Medicaid for this, under a Blagojevich law, she has to pay union dues (although without getting union benefits). No word yet on whether Illinois Democrats plan to deduct UAW dues if you get a tax credit for buying a hybrid car.

There is a lot of fear on the Left over what SCOTUS will do, because they could rule very broadly and strike a devastating blow against organized labor. However, I think that hype is overblown. The pattern of the Roberts court is to rule conservatively but narrowly. I expect it is very likely they will strike down this specific law 5-4 but avoid broadly striking down similar laws. The Left will freak out and go back to hating Roberts. And it’s likely some forced unionization laws will be nipped in the bud or be repealed. So expect a step against government-supported labor cartels, but not a decisive blow.

VRA On Its Last Legs

SCOTUS delivered an important decision today, basically striking down Section 4 of the Voting Rights Act. A little history:

When the Voting Rights Act passed in 1965, almost no African-Americans were registered to vote in the Deep South due to brutal repression and sickening legal chicanery. Civil rights litigators and the Department of Justice were doing their best to help. They filed lawsuit after lawsuit to make it possible for blacks to register. But every time a court deemed one discriminatory practice illegal, local officials would switch to another. Literacy tests, poll taxes, burdensome registration requirements—these techniques were all used to prevent African-Americans from voting. Southern voting registrars would even resign from their positions as soon as a lawsuit was on the cusp of succeeding, thereby sending the case back to square one. The Voting Rights Act aimed to change all of this.

Section 5 was the most important and imaginative provision in the law. It required certain states and jurisdictions, mostly in the South, to ask the federal government’s permission before making any change—no matter how small—in the way they run elections. Until a rule was “precleared,” it could not go into effect. This unusual provision solved the central problem of voting-rights enforcement during the civil rights era—keeping up with the increasingly creative strategies recalcitrant state and local governments used to disenfranchise voters. Section 5 shifted the burden of inertia, allowing the Department of Justice to get one step ahead of local officials.

In what is becoming a trend for the Roberts Court, the judges declined to strike down the entire VRA. Instead they struck down Section 4, which defines which areas need to preclear their election laws based on voter registrations and restrictions as they existed in 1972. This is an incremental step, building on criticisms the judges leveled at Section 4 four years ago. They warned Congress then that Section 4 was becoming outdated and needed to be replaced. Congress didn’t listen. And while I expect Congress to make a lot of noise, I don’t expect any action. Section 4 and, to a large extent Section 5 are effectively dead.

The reactions from the Left, as you can imagine, are a bit apoplectic. The most common argument is that the VRA has done a good job (African American registration is now comparable to white registration in many VRA-affected areas) so why scrap it now? But to me, that’s the argument for scrapping it. I can see the argument for having passed the VRA in the first place, over-riding states’ rights temporarily because the extraordinary circumstances of institutionalized and unremitting racism. But that was a temporary measure. At some point, we shouldn’t simply assume states are racist monsters because of conditions older than I am. Comparing this to Dred Scott or Plessy is simply ridiculous, especially since most of the VRA remains intact. In fact, this very Court, earlier in the session, threw out Arizona’s proof of citizenship requirement by a 7-2 vote, agreeing that it was over-ridden by federal law. There is nothing whatsoever to stop individuals or the Justice Department from challenging any state law they think is designed to surpress minority voting. I find it very unlikely that states will start playing the legal games they played in the 60’s to surpress the vote.

You can read more from Mataconis and Joyner at Outside the Beltway. The upshot — one I agree with — is that the Court made the correct decision: chip away at the VRA but leave enough intact so that discrimination can not rear its ugly head again.

The most amazing part of SCOTUS watching is the whipsawing of the pundit’s attitudes. When the Roberts Court made the Citizens United decision, all the liberal pundits rent their garments. Then the Obamacare decision came and suddenly the Roberts Court was awesome! Now they chip away at a dubious part of the VRA and they’re worse than the Tanney Court. If the Court overturns Prop 8 or DOMA tomorrow (I expect them to punt), then they’ll be awesome again.

Me? I think it’s been a mixed bag. The Roberts Court has made some critical inroads in Second Amendment Rights and property rights. They’ve made some poor decisions on civil liberties, Obamacare and criminal defense rights. But the thing they’ve mostly done is show restraint: knocking down parts of laws instead of entire volumes of law, deferring to the legislative process when they can and making changes in a manner consistent with judicial history and our Constitution.

That’s not perfect. I think judicial activism is a good thing when our liberty is at stake. But it’s an improvement over the radically activist Courts of the past.

Another SCOTUS Win

After you’ve watched the enragifying video in Rich’s post, you can calm yourself with this:

The federal government suffered a major defeat today at the U.S. Supreme Court in the case of Arkansas Game & Fish Commission v. United States. In their unanimous decision, the justices rejected the government’s sweeping claim that a series of recurring floods induced by the U.S. Army Corps of Engineers did not qualify as a taking of property under the Fifth Amendment because the flooding was only temporary in duration.

This is, potentially, an even more momentous decision than you think. One of the problems in environmental law is the government has often gotten away with depriving people of the use of their land without technically depriving them of the land itself. This is particularly common with the Endangered Species Act, in which development or even management of a parcel of land is denied because it has an endangered snail.

If the Court had wedged open the idea that depriving someone of the use of something is no different from simply taking it, we could see major changes ahead. Right now, the ruling is narrower than that, applying to specific destruction of property. But the Court’s growing recognition of property rights is a good sign.

Democrat Super PACs and Self-Loathing

What are liberals to do?  The Citizens United decision by SCOTUS is almost as infuriating to progressives as Bush v Gore.  Almost.  They’re convinced that the deck is permanently stacked against them because The Rich, Inc is somehow able to buy elections and cancel out their votes.  As we all know, only the government should be able to buy votes and only through entitlements and free cell phones, but that’s not what I’m interested in right now.

Not content after ruthlessly demagoguing against job creators to the point that they’re a virtual hunted minority, driving them to renounce their citizenship to flee punitive taxation, and trying to strip them of their First Amendment rights to support the candidates that they prefer; Democrats are turning their anger inward in a rare display of acknowledgement of their own hypocrisy.

In 2010, conservative outside groups held a three-to-one advantage in spending on House races and a slightly more than two-to-one advantage in Senate races, according to the Center for Responsive Politics. The formation of the Democratic super PACs and their coordination with traditional liberal groups — labor, environmental and women’s groups — helped cut that advantage to less than two-to-one in both House and Senate races in 2012, according to Federal Election Commission data.

No mention of all of those strange foreign donations that bypassed credit card verification on the Obama campaign’s website though.  If only there were some way to turn that on and off.  But I’m being unfair.  This is about Super PAC’s.  

I don’t really expect the Democrats to quit using money from Super PACs.  No political party practices what it preaches when it comes to ethics and hundreds of millions of dollars.  It’s just delightful to see them actually acting like they feel guilty, for once, about something that helped them win an election.  I wonder if we’ll see similar chest-thumping about the possibility that some fraudulent voters may have gotten counted thanks to their bitter opposition to Voter ID?

Nah.  The playing field just has to be leveled, after all.

The Day After

“It is not our job to protect the people from the consequences of their political choices.” – Chief Justice Roberts

Yesterday was one of the most important days in American political history. Over a million people tuned into SCOTUSblog to find out what was happening. I read more and posted more in comments sections and on Twitter than I ever have.

Let’s be clear: I think Obamacare is a bad bill. What few cost controls it attempts are ineffective and misguided. It massively expands the horrible Medicaid system. It will blow up the deficit. It does nothing to increase competition or consumer involvement. Its model — Romneycare — has controlled insurance prices and increased coverage. But that has come with an exploding state budget and increasingly ham-fisted efforts to clamp down on costs.

But the ultimate impact of yesterday’s decision may be different than what we think. Allahpundit has a roundup of some of the more interesting commentary, including must-reads from Orin Kerr, George Will and Ezra Klein. The gist is that while we may have lost the battle, we may also have put ourselves on track for winning the war. The Decision does several critical things:

  • It set limits on the use of the Commerce Clause, which has long been the duck blind for liberal activism. This is now Constitutional law.
  • In doing so, it reverted Obamacare to a tax, which means it can be repealed with 51 votes (same as when it was passed). And yes, the bill did originate in the House, technically.
  • It set the first limits in American history on the ability of the Federal government to use its spending power against the states. This limit was upheld by two of the liberal justices.
  • It reaffirmed the idea of judicial restraint. Roberts’ opinion goes to great lengths on this, reaffirming the idea that if there are multiple interpretations of a statute, the Court should go with the one that complies with the Constitution. This is the kind of judicial restraint we’ve wanted for decades.
  • It did all this without appearing to be a partisan decision.
  • Think about what happens if the GOP wins the election and actually — and this is by no means a certainty — repeals or massively repairs Obamacare. The Left will lose Obama’s signature achievement and the only legacy will be a firm precedent set for restraining the power of the federal government. This possibility is almost enough to make me consider voting for Romney, something I was incredibly dubious about just 24 hours ago.

    We shouldn’t be rending garments. We should be seeing this as the long game — the slow move toward a more restrained federal government. In the long run, National Federation of Independent Business v. Sebelius — actually, let’s just call it Sebelius so that she will always be tied to this — may turn out to be one of the most important conservative decisions in history. But it’s up to us to take advantage of the opportunity.

    Obamacare Ruling Open Thread

    I’ll post updates as events warrant.

    9:52: Best line so far is from Walter Olson who said he has some “Judicial activism!” placards but will have to wait for the decision to know which side to give them to.

    9:55: I’ve avoided predictions. But gun to my head, I’d say parts of PPACA are going down. The reason? The full court press by the Left to delegitimize the decision in advance. I think they have inside information.

    9:59: Holy shit, SCOTUSblog has 350,000 readers right now.

    10:02: Expect less complaining about activism with the Supreme Court overturning the Stolen Valor Act.

    10:09: The mandate survives as a tax. Not sure what that means. CNN is claiming the mandate was struck down. Apparently Roberts rules with the liberal wing.

    10:14: SCOTUSblog says that the bottom line is ACA is upheld because Roberts supported it. Assuming this is the case, I’m disappointed but will respect the Court’s decision. And my respect or Justice Roberts actually goes up because I think he is ruling on his interpretation of the law.

    Even with this ruling, this has been a great session for the court, which limited the power of the EPA and FCC and upheld the right of free speech and free religion.

    It’s time to go to work on repealing or repairing PPACA. Just because the Supreme Court says the government can do something, it doesn’t follow that it must do it.

    10:24: And holy fuck, over 800,000 people were reading SCOTUSblog.

    10:29: And just like that, Left Wing wailing and gnashing of teeth turns into gloating.

    10:31: And Right Wing bashing of Roberts begins. Never mind that his Court has been the most conservative since the 1930’s. HE ISSUED A RULING I DON’T LIKE!

    10:33: This ruling is quite interesting. The conservative block would have struck down the entire law. The liberal block would have upheld it. Ginsberg said that the mandate could survive just as a mandate. But Roberts’ ruling is now the law of the land: he said it could survive … but ONLY as a tax (which it clearly is, even if Obama didn’t want to own that). So ignore screaming about how the government can make us buy things. Roberts’ decision will insure that it can’t.

    And really, if you’re worried about the government coercing us into doing things, you should have complained thirty years ago when SCOTUS upheld using highway funds to force states to raise the drinking age.

    The course for the GOP is clear: make sure the public knows that Obama raised taxes on the uninsured. And run heavily on repealing/replacing PPACA. That’s the wonderful thing about our system. We always have options.

    10:37: States can opt out of the Medicaid expansion. That’s actually pretty huge. And really really important for state budgets. So free healthcare is no longer guaranteed.