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US Supreme Court Tag

Posted by Fuzzy Slippers on June 28, 2015 22 Comments
Ted Cruz is not at all happy with the recent Supreme Court decisions regarding ObamaCare subsidies and gay marriage, and  his solution is bound to be controversial. He's proposing a constitutional amendment that would make the Supreme Court justices subject to judicial-retention elections. Here's his tweet about it: He also wrote a lengthy piece for The National Review in which he argues that the Supreme Court has rendered decisions that are lawless examples of judicial activism and that undermine the Court's very legitimacy.  Cruz writes:
The Framers of our Constitution, despite their foresight and wisdom, did not anticipate judicial tyranny on this scale. The Constitution explicitly provides that justices “shall hold their Offices during good Behaviour,” and this is a standard they are not remotely meeting. The Framers thought Congress’s “power of instituting impeachments,” as Alexander Hamilton argued in the Federalist Papers, would be an “important constitutional check” on the judicial branch and would provide “a complete security” against the justices’ “deliberate usurpations of the authority of the legislature.”

Posted by Fuzzy Slippers on June 27, 2015 14 Comments
Following the surreal decision of the Supreme Court regarding ObamaCare subsidies, Texas Representative Brian Babin (R) wants to ensure that the justices take full advantage of the law they just contorted in order to save it.  Picking up Justice Scalia's comment that the decision effectively turns ObamaCare into SCOTUScare, Babin has introduced a bill that requires Supreme Court justices to sign up for ObamaCare. Watch: From Babin's website:
U.S. Representative Brian Babin (TX-36) issued the following statement today after introducing the SCOTUScare Act (H.R. 2905), which finally eliminates their exemption and requires all U.S. Supreme Court Justices and their employees to sign up for Obamacare:

Posted by William A. Jacobson on June 27, 2015 49 Comments
Today, The NY Times turned its entire front page above the fold to celebrating yesterday's Supreme Court decision on gay marriage: NY Times Supreme Court Gay Marriage Headline Front Page Many national and major regional papers did the same. But is any diversity of news coverage permitted on such a huge cultural victory? If you want to know what the future of the post-SCOTUS SSM culture war looks like, take a look at this tweet by former MSM exec. Betsy Fischer Martin (h/t @bryanjacoutot) complaining that a north Louisiana paper had a larger headline about a local pageant than the Supreme Court's gay marriage decision. The Supreme Court decision was front page, above the fold, right hand side, double column, and was followed just below it with another report about the impact of the decision. But that a local pageant story had more column space apparently was unacceptable:

Posted by Amy Miller on June 26, 2015 135 Comments
Today's ruling in the Obergefell same-sex marriage case sent shockwaves rolling across the nation. Fox News correspondent Shannon Bream read the decision on the air as the crowd outside the Court cheered: The scene outside the Supreme Court right now is kind of a circus:

Posted by New Neo on June 25, 2015 37 Comments
A dissent has no power except the power of its words and its logic. So Justice Scalia's dissent in King v. Burwell (joined by Alito and Thomas) is satisfying only in the rhetorical and intellectual sense. But it is so good that I'm highlighting it again anyway. Here are some excerpts:
[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925)...Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved... ...The somersaults of statutory interpretation [this Court has] performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

Posted by William A. Jacobson on June 25, 2015 139 Comments
My soundbite: "The Supreme Court today rewrote Obamacare in order to save Obamacare. The plain meaning of the term 'Exchange established by the State' was contorted to mean established by the State or Federal government. That contortion, Justice Scalia correctly noted in dissent, effectively has turned Obamacare into SCOTUScare." ---------- Decision just in in King v. Burwell. Here. In a 6-3 ruling authored by Chief Justice Roberts, the Court held that subsidies are available on the federal exchanges. Those voting in the majority were Roberts, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Had the court ruled otherwise, it would have put all of Obamacare in jeopardy, since 38 states do not have exchanges and Obamacare is too expensive for most people without a subsidy. The issue was whether only state-established exchanges could issue tax credits, or whether the federal exchanges could also. Challengers to IRS regulations pointed to the words “established by the State” in the legislation as clear and unambiguous that subsidies were limited to state exchanges. The Court rejected this assertion:

Posted by William A. Jacobson on June 24, 2015 93 Comments
Possibly as soon as Thursday morning, but certainly by early next week, we will know how the Supreme Court rules on the issue of whether denying same-sex couples the ability to marry violates the U.S. Constitution. Lyle Denniston at ScotusBlog summarized the case as follows:
Taking on a historic constitutional challenge with wide cultural impact, the Supreme Court on Friday afternoon [January 16, 2015] agreed to hear four new cases on same-sex marriage. The Court said it would rule on the power of the states to ban same-sex marriages and to refuse to recognize such marriages performed in another state.... The Court fashioned the specific questions it is prepared to answer, but they closely tracked the two core constitutional issues that have led to a lengthy string of lower-court rulings striking down state bans. As of now, same-sex marriages are allowed in thirty-six states, with bans remaining in the other fourteen but all are under court challenge. Although the Court said explicitly that it was limiting review to the two basic issues, along the way the Justices may have to consider what constitutional tests they are going to apply to state bans, and what weight to give to policies that states will claim to justify one or the other of the bans....
I hate trying to predict court rulings, but the political winds have changed dramatically the past few years, so if I had to bet, I'd bet that the ruling is 5-4 for gay marriage. [Warning - my bets tend to be counter-indicators.] Don't think for a second that politics and public opinion doesn't influence such historic cases. I also expect Elena Kagan to be one of the five, based on her comments during oral argument, via NY Times:

Posted by Amy Miller on June 22, 2015 62 Comments
Today, the Supreme Court handed down a ruling that stands to drastically change the relationship farmers have with the federal government. The order in Horne, et al. v. Department of Agriculture turned on its head the idea that the government can seize an entire "bundle" of property rights, yet avoid classifying that seizure as a taking as long as they allow the original owners to retain some manner of interest in the property. In 2001, Marvin and Laura Horne challenged that very premise when they decided to withhold portions of their raisin crop that the government mandated be relinquished to the Raisin Administrative Committee (which is indeed a real thing); the Hornes were fined almost a million dollars for their transgressions, but they fought back, arguing that the Committee's seizure of even a portion of an individual farmer's crop as a condition of participating in the market constituted an unconstitutional taking.

Posted by Kemberlee Kaye on June 21, 2015 7 Comments
Think tanks, policy wonks, legislative staffers, and politijunkies are eagerly awaiting the Supreme Court's ruling on King v. Burwell. As for the rest of the country, most have clue why this case is so crucial. John David Danielson of The Federalist addressed this issue Thursday:
According to a new poll by the Kaiser Family Foundation, 7 in 10 Americans have heard little or nothing about King v. Burwell, the U.S. Supreme Court case that will, any day now, decide the fate of Obamacare’s health insurance subsidies for millions of Americans. Yet 63 percent of those surveyed also say that if the court rules against the government, Congress should act to keep those subsidies in place. Got that? The vast majority of Americans know almost nothing about this case, but 63 percent have an opinion about what Congress should do in response to a ruling that carries certain policy implications.
Thanks for nothing, Media. But what about those enrolled in Obamacare? The Foundation for Government Accountability surveyed voters enrolled in a federal exchange heath care plan. Obamacare customers do think Congress should act to change the law, but not for the same reasons as the general respondents surveyed in the Kaiser Family Foundation poll.

Posted by Fuzzy Slippers on June 20, 2015 24 Comments
There has been a lot of speculation, including by me, about what the Republican-controlled Congress will do should the Supreme Court rule against Obama in King v. Burwell.  Should the Court strike down federal subsidies, Republicans will need to have a plan in place to address this decision as it impacts those who are currently receiving subsidies for ObamaCare from the federal exchange because their state did not set up a state exchange. Republicans are still talking about a "fix" but are now stressing that it is to be "transitional" rather than permanent.  According to Bloomberg:
[Representative Dennis Ross of Florida] added, “There’s a strong consensus in that room” that the subsidies must be continued in some form “until Republicans can substantively change the law.” Participants at Wednesday’s closed-door meeting said key aspects of a transition plan were presented to lawmakers by Ryan, Energy and Commerce Committee Chairman Fred Upton, Budget Committee Chairman Tom Price of Georgia and Education and Workforce Committee Chairman John Kline of Minnesota. Along with immediate repeal of the law’s individual and employer mandates, the plan would give states the option to build their own insurance exchanges and offer subsidies, using federal money. Alternatively, people in states affected by the ruling would receive a subsidy to purchase an insurance plan either from healthcare.gov or on the open market.

Posted by New Neo on June 11, 2015 20 Comments
Atlantic writer Russell Berman wonders:
...[Obama's] decision to champion his signature achievement in such pointed terms just weeks before the high court’s ruling is due raised the question of whether Obama was trying to jawbone the justices at the 11th hour. ...“It seems so cynical,” he said, “to want to take coverage away from millions of people; to take care away from people who need it the most; to punish millions with higher costs of care and unravel what’s now been woven into the fabric of America.”... The speech came a day after the president, in response to a reporter’s question, commented directly on the case before the justices..."Under well-established precedent, there is no reason why the existing exchanges should be overturned through a court case," Obama said. "This should be an easy case. Frankly, it probably shouldn't even have been taken up," he added... [In 2012, Obama had] sharply warned the Court not to rule against his healthcare law the first time around. “I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Obama said then.

Posted by William A. Jacobson on June 10, 2015 7 Comments
I was a guest Tuesday morning on The Tony Katz Show on WICB Indianapolis. The topic was the Zivotofsky case discussed earlier this week, Supreme Court Overturns Congress on Jerusalem Passport Law. I made the point that while the majority decision purported to make the decision very narrow, it's likely that the decision would be used to try to limit Congressional legislation more broadly as relates to foreign policy: Professor Eugene Kontorovich expresses a similar view, writing at ScotusBlog (via Volokh Conspiracy):

Posted by William A. Jacobson on June 08, 2015 15 Comments
The Supreme Court decided the much-anticipated Zivotofsky case, involving a congressional law which permitted American citizens born in Jerusalem to choose to list "Israel" as their place of birth, rather than just "Jerusalem," as the State Department mandated.  (Full Opinion here.) Needless to say, the case had enormous political implications, even if the legal issue itself was not particularly political.  The Executive Branch refuses to recognize Jerusalem as the capital of Israel, or even though Israel has declared Jerusalem to be its capital both when it was divided prior to 1967, and after it was reunited in 1967.  Worse still, for passport purposes it does not even recognize Jerusalem as part of Israel at all. The political gloss is that the Executive Branch claims the issue should be subject to negotiations, but the reality is that the State Department fears backlash from the Palestinians and Israel-hating nations (i.e., most of the United Nations) should it side with Israel's claim to Jerusalem as its capital. Congress, on the other hand, is in sync with American domestic public opinion, which is overwhelmingly pro-Israel, so in 2002 Congress passed a law to force the State Department's hand on the issue.

Posted by New Neo on June 04, 2015 21 Comments
Republicans are in a pickle, and have been since the moment Obamacare was passed. You might think they're in a good position, because the Supreme Court is considering overturning the state Obamacare exchanges and subsidies because of wording in the statute, and this would throw the entire Obamacare system into turmoil. The case in question is King v. Burwell, and it could be decided any day now. But there's one catch, and it's a biggee: if the ruling goes against Obamacare, the press and the left will rail at the Republicans for being the big bad meanies who took away a lot of people's subsidies. That was part of the beauty of Obamacare for the left, and one of the many many reasons they were so extraordinarily eager to pass it and pass it as quickly as possible: they wanted to create a dependence and an expectation, otherwise known as an entitlement, that would be tremendously hard to reverse. But what do the American people actually want if SCOTUS throws out the state exchanges and therefore the state subsidies? A substantial majority appear to want Congress to fix Obamacare rather than re-establish the state exchanges, according to this poll. But what would that actually look like?

Posted by Kemberlee Kaye on June 02, 2015 24 Comments
Yesterday, fledgling retailer Abercrombie & Fitch lost their anti-hijab case in the Supreme Court. Amy provided background when SCOTUS heard oral arguments in February:
Back in 2008, Samantha Elauf, an observant Muslim, applied and was interviewed for a job at teen-friendly retailer Abercrombie & Fitch. She impressed the hiring manager, but when the time came to make a decision, the manager decided not to hire Samantha because she had concerns about whether or not Samantha would insist on wearing her headscarf to work. This would have been a violation of Abercrombie’s “Look Policy,” which dictates that employees conform to a strict set of style guidelines that specifically prohibit head coverings and black clothing.
Abercrombie's "Look Policy" was summarized as, "classic East Coast collegiate style."

Posted by Amy Miller on June 01, 2015 6 Comments
Remember Anthony Elonis? He was sentenced to four years in federal prison after he posted original rap lyrics and other content concerning his wife, co-workers, a kindergarten class, and even a federal agent. A lower court held that Elonis' posts constituted a "true threat" against those mentioned in his rants, and he served more than three years of his sentence before being released. At controversy in the ensuing lawsuit was the prosecutor's use of a low-hanging, "reasonable person" standard in his instructions to the jury. The Court had never specifically ruled on whether or not a prosecutor must show intent to carry out verbal or written threats in order to get a conviction; lower courts are split, with most requiring enough evidence to show that a reasonable person would see or hear the speech and believe that it is “a serious expression of an intention to inflict bodily injury or take the life of an individual.” In today's ruling, the Supreme Court held that requiring only negligence with respect to the communication of a threat, is not sufficient to support a conviction under the statute that governed Elonis' alleged crimes.

Posted by Amy Miller on May 26, 2015 14 Comments
It's time to define what the meaning of the word "population" is---and how it applies to the drawing of electoral districts. In 1964, the Supreme Court ruled in Reynolds v. Sims that, under the Equal Protection Clause of the 14th Amendment, state legislative districts have to be about equal in population. The Court also held that population must always be the "controlling consideration" in state redistricting. Seem straightforward? Not so fast, say two voters from Texas. A few years ago, Sue Evenwel and Edward Pfenninger, together with the Austin-based Project on Fair Representation, sued the State of Texas over an implemented redistricting plan that redrew state senate districts based on total population, as opposed to voting population. They argue that such a standard dilutes the voting power of registered voters living in areas heavily populated with nonvoters and illegal immigrants, thus violating the principle of "one person, one vote." The Texas Tribune explains:
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