The Supreme Court Approaches Judgment Day
http://www.truthdig.com/report/item/the_supreme_court_approaches_judgment_da
y_20160126/
Posted on Jan 26, 2016
By Bill Blum
The Supreme Court justices during a 2010 hearing. From left: Sonia
Sotomayor, Stephen Breyer, Clarence Thomas, Antonin Scalia, Chief Justice
John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Samuel Alito and Elena
Kagan. (Dana Verkouteren / AP)
I know you've heard this before, but this time the future of the Supreme
Court really is up for grabs in the coming presidential election. By the
time November rolls around, three of the justices-Ruth Bader Ginsburg,
Antonin Scalia and Anthony Kennedy-will be octogenarians. Right behind them,
Justice Stephen Breyer will be 78.
Unless Father Time goes on permanent leave or the laws of nature are
suspended, all four could resign on short notice, allowing the next occupant
of the White House to appoint their successors.
Since the average tenure of justices appointed since 1970 has exceeded 26
years, the next president will have the opportunity to reshape the nation's
most powerful judicial body for a generation or more. And with the power to
reshape the court will come the power to redefine the meaning and
application of the Constitution.
It's not only liberals and progressives like me or folks at watchdog groups
like People For the American Way who are fretting about the direction of the
court. If anything, conservatives are even more on edge.
At the Federalist Society's annual lawyers convention late last year,
according to the Washington Times, seasoned Supreme Court litigator Michael
Carvin voiced the angst shared by many on the right in the most dramatic
terms, declaring: "If the election goes wrong . we will all descend into a
hellish existence from which we will never emerge."
Carvin's anxiety was echoed by professor Michael Paulsen, a constitutional
scholar from the University of St. Thomas School of Law. "Ideology matters,"
Paulsen told the crowd gathered at the Mayflower Hotel in Washington, D.C.
"Judicial philosophy matters. Sometimes it's literally a matter of life and
death who[m] you appoint to the court."
It's easy to understand such concerns. The replacement of even a single
justice could swing the tribunal's voting balance on a variety of pivotal
legal issues, prompting reconsideration of a host of recent, landmark 5-4
decisions. Since those decisions are a mixed bag, some liberal in outlook
and effect and others conservative, both ends of the political spectrum have
plenty of skin in the game of remaking the court.
Among the issues and cases most likely to be re-evaluated by a new panel of
justices are these five headliners:
Citizens United v. FEC, and Campaign Finance
Of the plethora of pro-business rulings handed down since Chief Justice John
Roberts assumed office in 2005, none has done more to consolidate the
oligarchy's hold on government than the Citizens United decision of January
2010.
In his majority opinion, Justice Kennedy invoked the First Amendment and the
legal fiction of corporate personhood to sweep away decades of legislative
and judicial precedent that had prohibited corporations and unions from
spending their general treasury funds on federal elections. Two months
later, invoking the reasoning of Citizens United in the case of
SpeechNow.org v. FEC, the U.S. Court of Appeals for the District of Columbia
Circuit approved the formation of super PACs, the so-called
"expenditure-only" entities that cannot give money directly to candidates
but can independently raise and spend unlimited sums on their behalf.
In 2014, in McCutcheon v. FEC, the Supreme Court struck again by a 5-4
margin, this time in an opinion penned by Roberts, lifting the
long-established aggregate limits on the amount of money that wealthy
individuals can donate directly to candidates in any given election cycle.
Both Hillary Clinton and Bernie Sanders have vowed that, if elected, they
will place justices on the court committed to reversing Citizens United,
McCutcheon and presumably earlier rulings such as Buckley v. Valeo, decided
in 1976, to limit the role of money in politics. Their opponents have
promised to do exactly the opposite.
Heller v. District of Columbia, and the Second Amendment
Prior to Scalia's 5-4 paean to gun rights in 2008's Heller decision, the
dominant view expressed both by academics and judges in the few court cases
that addressed the issue was that the Second Amendment protected individual
gun ownership only in connection with service in antiquated state militias.
All that changed, however, with the triumph of Scalia's "originalist"
interpretation of the amendment, which asserts that the Founding Fathers
intended to secure constitutional protections for the personal right to bear
arms.
And while the Heller decision was limited to gun ownership in the nation's
capital and other federal venues, the court extended its analysis to the
states two years later in McDonald v. Chicago.
Despite being widely panned by Second Amendment experts such as Fordham
University's Saul Cornell as a "constitutional scam" based on a sloppy
reading of colonial history, Scalia's originalism is now the law of the
land, venerated as holy writ by every Republican presidential hopeful.
By contrast, Clinton-and to a lesser extent Sanders-supports such gun
control measures as mandatory background checks, assault weapons bans,
trigger-lock laws and prohibitions on cross-state, concealed-carry permits.
Sooner or later, the Supreme Court will take up another major firearms case.
When it does, depending on who wields the gavel, Heller and McDonald could
well be overturned-or be further entrenched in the bedrock of our
constitutional law.
National Federation of Independent Businesses v. Sebelius, and Obamacare
In what many conservatives regard as a great betrayal, Chief Justice Roberts
authored the bitterly divided, 5-4 opinion that upheld the Affordable Care
Act's individual mandate in 2012. What's largely been forgotten is that
Roberts' opinion was anything but an enthusiastic endorsement of the ACA.
The mandate survived, but barely-and not as an exercise of the federal
government's constitutional power to regulate interstate commerce, as the
Obama administration had urged, but as a function of Congress' authority to
levy taxes.
Since then, the ACA has been repeatedly attacked, politically and legally.
Last term, in a 6-3 decision (King v. Burwell), again written by Roberts,
the court turned away a highly technical suit argued by Michael Carvin that
sought to invalidate federal income tax subsidies for low-income purchasers
of health insurance in states that have not set up their own marketplace
exchanges.
The King decision sent Scalia into a tizzy, prompting him to lambaste the
majority's holding as "interpretive jiggery-pokery" for its allegedly shoddy
reasoning and as "pure applesauce" for what he argued was an undeserved
windfall it bestowed on ACA beneficiaries. The case also sparked widespread
calls on the right for Roberts' impeachment.
This term, the ACA faces another Supreme Court test, akin to 2014's Hobby
Lobby litigation, in Little Sisters of the Poor Home for the Aged v. Burwell
and five related appeals that once more challenge the statute's
contraceptive services mandate. The plaintiffs are nonprofit religious
organizations that, like Hobby Lobby Stores Inc., argue that the ACA's
birth-control insurance provisions violate their rights as employers under
the Religious Freedom Restoration Act of 1993.
Given the Hobby Lobby precedent, it's easy to see the current court handing
a narrow, 5-4 victory to the Little Sisters. But if we remove Ginsburg from
the equation in future ACA lawsuits and replace her with a clone of Thomas
or Justice Samuel Alito, the entire structure of Obamacare conceivably could
crumble.
Obergefell v. Hodges, and Same-Sex Marriage
If Scalia was sent into orbit by the King case, he positively lost his
jurisprudential bearings when Kennedy teamed up with the panel's four
liberals to write the majority opinion in Obergefell v. Hodges, recognizing
a constitutional right to same-sex marriage.
Raging in dissent, Scalia branded Kennedy's opinion "a naked judicial claim
to legislative-indeed, super-legislative-power." Lamenting the end of
federalism and states' rights, he charged that a "system of government that
makes the People subordinate to a committee of nine unelected lawyers does
not deserve to be called a democracy."
As if yielding to paranoid fantasy, he continued: "Who ever thought that
intimacy and spirituality (whatever that means) were freedoms? And if
intimacy is, one would think Freedom of Intimacy is abridged rather than
expanded by marriage. Ask the nearest hippie." Not quite finished, he added
in a boorish footnote: "The Supreme Court of the United States has descended
from the disciplined legal reasoning of John Marshall and Joseph Story to
the mystical aphorisms of a fortune cookie."
It boggles the mind to think that if Kennedy, Breyer and/or Ginsburg leave
the bench before Scalia and are replaced by hard-line conservatives,
Scalia's homophobia could command a new majority and wind up toppling
marriage equality.
Obergefell represents the greatest formal advance for constitutional and
human rights achieved in this country in decades. It literally hangs in the
balance.
The Death Penalty
Although the court has nibbled away at the periphery of capital punishment
in recent years, holding it unconstitutional as applied to juveniles and the
mentally ill and overturning Florida's capital sentencing procedures (Hurst
v. Florida), it has consistently declined to abolish the death penalty
outright.
The rest of the civilized world, however, is turning away from capital
punishment, and only six American states conducted executions in 2015. Last
term, in Glossip v. Gross, the court passed on yet another opportunity to
join the enlightenment.
As I have previously written in this column, Richard Glossip was convicted
of a 1997 murder in Oklahoma but may very well be innocent. Technically, the
issue before the court in his case was not whether he had committed the
homicide, but whether the state's use of a new and highly controversial
three-drug cocktail in its lethal injection protocol violated the Eighth
Amendment's prohibition of cruel and unusual punishment.
Alito's majority opinion, joined by the court's other Republican appointees,
answered the issue with a ringing endorsement of the protocol, despite the
fact that the cocktail had caused prolonged agony in two executions.
While Alito's decision came as no surprise, Breyer's dissent broke serious
new ground. Writing for himself and Ginsburg, Breyer declared not only that
he would have granted Glossip's petition (which had been filed both for him
and several other Oklahoma prisoners facing imminent execution), but that he
would have taken another, far bolder step-calling for a re-examination of
the death penalty itself. "[R]ather than try to patch up the death penalty's
legal wounds one at a time," Breyer reasoned, "I would ask for full briefing
on a more basic question: whether the death penalty violates the
Constitution."
Breyer's opinion marked the first time since the late Justice Harry
Blackmun's dissent, in a case from Texas, that a sitting member of the court
has formally taken an abolitionist stance on the death penalty.
As Breyer's dissent illustrates, the future of capital punishment, like the
overall direction of the court, is in play. In the meantime, Glossip remains
under a sentence of death, although his execution has been stayed pending a
review of the Oklahoma protocol by the state's attorney general.
The five cases I've singled out comprise only a sliver of the hot-button
issues that may come before a reconstituted Supreme Court dominated by
justices appointed by President Obama's successor. No doubt other critical
cases also will arrive before the new court, raising questions that touch
the most sensitive and intimate aspects of our daily lives-from abortion
rights to police brutality, from global warming and immigration to voting
rights and government surveillance.
Few of us may be satisfied with the ultimate nominees of the two main
parties, and you can count me among the likely disgruntled if anyone but an
aging, slightly stoop-shouldered senator from Vermont captures the
Democratic nod. But none of us can plausibly argue that the election won't
matter, especially when it comes to the future of the Supreme Court and the
laws it oversees.
http://www.truthdig.com/ http://www.truthdig.com/
The Supreme Court Approaches Judgment Day
http://www.truthdig.com/report/item/the_supreme_court_approaches_judgment_da
y_20160126/
Posted on Jan 26, 2016
By Bill Blum
The Supreme Court justices during a 2010 hearing. From left: Sonia
Sotomayor, Stephen Breyer, Clarence Thomas, Antonin Scalia, Chief Justice
John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Samuel Alito and Elena
Kagan. (Dana Verkouteren / AP)
I know you've heard this before, but this time the future of the Supreme
Court really is up for grabs in the coming presidential election. By the
time November rolls around, three of the justices-Ruth Bader Ginsburg,
Antonin Scalia and Anthony Kennedy-will be octogenarians. Right behind them,
Justice Stephen Breyer will be 78.
Unless Father Time goes on permanent leave or the laws of nature are
suspended, all four could resign on short notice, allowing the next occupant
of the White House to appoint their successors.
Since the average tenure of justices appointed since 1970 has exceeded 26
years, the next president will have the opportunity to reshape the nation's
most powerful judicial body for a generation or more. And with the power to
reshape the court will come the power to redefine the meaning and
application of the Constitution.
It's not only liberals and progressives like me or folks at watchdog groups
like People For the American Way who are fretting about the direction of the
court. If anything, conservatives are even more on edge.
At the Federalist Society's annual lawyers convention late last year,
according to the Washington Times, seasoned Supreme Court litigator Michael
Carvin voiced the angst shared by many on the right in the most dramatic
terms, declaring: "If the election goes wrong . we will all descend into a
hellish existence from which we will never emerge."
Carvin's anxiety was echoed by professor Michael Paulsen, a constitutional
scholar from the University of St. Thomas School of Law. "Ideology matters,"
Paulsen told the crowd gathered at the Mayflower Hotel in Washington, D.C.
"Judicial philosophy matters. Sometimes it's literally a matter of life and
death who[m] you appoint to the court."
It's easy to understand such concerns. The replacement of even a single
justice could swing the tribunal's voting balance on a variety of pivotal
legal issues, prompting reconsideration of a host of recent, landmark 5-4
decisions. Since those decisions are a mixed bag, some liberal in outlook
and effect and others conservative, both ends of the political spectrum have
plenty of skin in the game of remaking the court.
Among the issues and cases most likely to be re-evaluated by a new panel of
justices are these five headliners:
Citizens United v. FEC, and Campaign Finance
Of the plethora of pro-business rulings handed down since Chief Justice John
Roberts assumed office in 2005, none has done more to consolidate the
oligarchy's hold on government than the Citizens United decision of January
2010.
In his majority opinion, Justice Kennedy invoked the First Amendment and the
legal fiction of corporate personhood to sweep away decades of legislative
and judicial precedent that had prohibited corporations and unions from
spending their general treasury funds on federal elections. Two months
later, invoking the reasoning of Citizens United in the case of
SpeechNow.org v. FEC, the U.S. Court of Appeals for the District of Columbia
Circuit approved the formation of super PACs, the so-called
"expenditure-only" entities that cannot give money directly to candidates
but can independently raise and spend unlimited sums on their behalf.
In 2014, in McCutcheon v. FEC, the Supreme Court struck again by a 5-4
margin, this time in an opinion penned by Roberts, lifting the
long-established aggregate limits on the amount of money that wealthy
individuals can donate directly to candidates in any given election cycle.
Both Hillary Clinton and Bernie Sanders have vowed that, if elected, they
will place justices on the court committed to reversing Citizens United,
McCutcheon and presumably earlier rulings such as Buckley v. Valeo, decided
in 1976, to limit the role of money in politics. Their opponents have
promised to do exactly the opposite.
Heller v. District of Columbia, and the Second Amendment
Prior to Scalia's 5-4 paean to gun rights in 2008's Heller decision, the
dominant view expressed both by academics and judges in the few court cases
that addressed the issue was that the Second Amendment protected individual
gun ownership only in connection with service in antiquated state militias.
All that changed, however, with the triumph of Scalia's "originalist"
interpretation of the amendment, which asserts that the Founding Fathers
intended to secure constitutional protections for the personal right to bear
arms.
And while the Heller decision was limited to gun ownership in the nation's
capital and other federal venues, the court extended its analysis to the
states two years later in McDonald v. Chicago.
Despite being widely panned by Second Amendment experts such as Fordham
University's Saul Cornell as a "constitutional scam" based on a sloppy
reading of colonial history, Scalia's originalism is now the law of the
land, venerated as holy writ by every Republican presidential hopeful.
By contrast, Clinton-and to a lesser extent Sanders-supports such gun
control measures as mandatory background checks, assault weapons bans,
trigger-lock laws and prohibitions on cross-state, concealed-carry permits.
Sooner or later, the Supreme Court will take up another major firearms case.
When it does, depending on who wields the gavel, Heller and McDonald could
well be overturned-or be further entrenched in the bedrock of our
constitutional law.
National Federation of Independent Businesses v. Sebelius, and Obamacare
In what many conservatives regard as a great betrayal, Chief Justice Roberts
authored the bitterly divided, 5-4 opinion that upheld the Affordable Care
Act's individual mandate in 2012. What's largely been forgotten is that
Roberts' opinion was anything but an enthusiastic endorsement of the ACA.
The mandate survived, but barely-and not as an exercise of the federal
government's constitutional power to regulate interstate commerce, as the
Obama administration had urged, but as a function of Congress' authority to
levy taxes.
Since then, the ACA has been repeatedly attacked, politically and legally.
Last term, in a 6-3 decision (King v. Burwell), again written by Roberts,
the court turned away a highly technical suit argued by Michael Carvin that
sought to invalidate federal income tax subsidies for low-income purchasers
of health insurance in states that have not set up their own marketplace
exchanges.
The King decision sent Scalia into a tizzy, prompting him to lambaste the
majority's holding as "interpretive jiggery-pokery" for its allegedly shoddy
reasoning and as "pure applesauce" for what he argued was an undeserved
windfall it bestowed on ACA beneficiaries. The case also sparked widespread
calls on the right for Roberts' impeachment.
This term, the ACA faces another Supreme Court test, akin to 2014's Hobby
Lobby litigation, in Little Sisters of the Poor Home for the Aged v. Burwell
and five related appeals that once more challenge the statute's
contraceptive services mandate. The plaintiffs are nonprofit religious
organizations that, like Hobby Lobby Stores Inc., argue that the ACA's
birth-control insurance provisions violate their rights as employers under
the Religious Freedom Restoration Act of 1993.
Given the Hobby Lobby precedent, it's easy to see the current court handing
a narrow, 5-4 victory to the Little Sisters. But if we remove Ginsburg from
the equation in future ACA lawsuits and replace her with a clone of Thomas
or Justice Samuel Alito, the entire structure of Obamacare conceivably could
crumble.
Obergefell v. Hodges, and Same-Sex Marriage
If Scalia was sent into orbit by the King case, he positively lost his
jurisprudential bearings when Kennedy teamed up with the panel's four
liberals to write the majority opinion in Obergefell v. Hodges, recognizing
a constitutional right to same-sex marriage.
Raging in dissent, Scalia branded Kennedy's opinion "a naked judicial claim
to legislative-indeed, super-legislative-power." Lamenting the end of
federalism and states' rights, he charged that a "system of government that
makes the People subordinate to a committee of nine unelected lawyers does
not deserve to be called a democracy."
As if yielding to paranoid fantasy, he continued: "Who ever thought that
intimacy and spirituality (whatever that means) were freedoms? And if
intimacy is, one would think Freedom of Intimacy is abridged rather than
expanded by marriage. Ask the nearest hippie." Not quite finished, he added
in a boorish footnote: "The Supreme Court of the United States has descended
from the disciplined legal reasoning of John Marshall and Joseph Story to
the mystical aphorisms of a fortune cookie."
It boggles the mind to think that if Kennedy, Breyer and/or Ginsburg leave
the bench before Scalia and are replaced by hard-line conservatives,
Scalia's homophobia could command a new majority and wind up toppling
marriage equality.
Obergefell represents the greatest formal advance for constitutional and
human rights achieved in this country in decades. It literally hangs in the
balance.
The Death Penalty
Although the court has nibbled away at the periphery of capital punishment
in recent years, holding it unconstitutional as applied to juveniles and the
mentally ill and overturning Florida's capital sentencing procedures (Hurst
v. Florida), it has consistently declined to abolish the death penalty
outright.
The rest of the civilized world, however, is turning away from capital
punishment, and only six American states conducted executions in 2015. Last
term, in Glossip v. Gross, the court passed on yet another opportunity to
join the enlightenment.
As I have previously written in this column, Richard Glossip was convicted
of a 1997 murder in Oklahoma but may very well be innocent. Technically, the
issue before the court in his case was not whether he had committed the
homicide, but whether the state's use of a new and highly controversial
three-drug cocktail in its lethal injection protocol violated the Eighth
Amendment's prohibition of cruel and unusual punishment.
Alito's majority opinion, joined by the court's other Republican appointees,
answered the issue with a ringing endorsement of the protocol, despite the
fact that the cocktail had caused prolonged agony in two executions.
While Alito's decision came as no surprise, Breyer's dissent broke serious
new ground. Writing for himself and Ginsburg, Breyer declared not only that
he would have granted Glossip's petition (which had been filed both for him
and several other Oklahoma prisoners facing imminent execution), but that he
would have taken another, far bolder step-calling for a re-examination of
the death penalty itself. "[R]ather than try to patch up the death penalty's
legal wounds one at a time," Breyer reasoned, "I would ask for full briefing
on a more basic question: whether the death penalty violates the
Constitution."
Breyer's opinion marked the first time since the late Justice Harry
Blackmun's dissent, in a case from Texas, that a sitting member of the court
has formally taken an abolitionist stance on the death penalty.
As Breyer's dissent illustrates, the future of capital punishment, like the
overall direction of the court, is in play. In the meantime, Glossip remains
under a sentence of death, although his execution has been stayed pending a
review of the Oklahoma protocol by the state's attorney general.
The five cases I've singled out comprise only a sliver of the hot-button
issues that may come before a reconstituted Supreme Court dominated by
justices appointed by President Obama's successor. No doubt other critical
cases also will arrive before the new court, raising questions that touch
the most sensitive and intimate aspects of our daily lives-from abortion
rights to police brutality, from global warming and immigration to voting
rights and government surveillance.
Few of us may be satisfied with the ultimate nominees of the two main
parties, and you can count me among the likely disgruntled if anyone but an
aging, slightly stoop-shouldered senator from Vermont captures the
Democratic nod. But none of us can plausibly argue that the election won't
matter, especially when it comes to the future of the Supreme Court and the
laws it oversees.
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