Quote of the moment: Potter Stewart, on the freedom to procreate without government intrusion

August 31, 2013

Justice Potter Stewart, official portrait in the U.S. Supreme Court. Artist: Ruth A. Nestor Hamilton. Oyez image.

Justice Potter Stewart, official portrait in the U.S. Supreme Court. Artist: Ruth A. Nestor Hamilton. Oyez image.

Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. [...] As recently as last Term, in Eisenstadt v. Baird, 405 U. S. 438, 405 U. S. 453, we recognized “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.

Potter Stewart (1915-1985) US Supreme Court Justice (1959-81)
Roe v. Wade, 410 U.S. 113, 169-170 (1973) [Concurring]
(Source)

Links added here, except “Source.”  Handing the scrub brush to WIST, so WIST may tip it to itself.


Old and Wise? Stones older than Supreme Court

December 8, 2012

Some wag at Associated Press noticed recently that the Rolling Stones’ average age puts them older than the U.S. Supreme Court.  (Did some one notice this before AP?)  Franklin Roosevelt criticized the Court as “nine old men.”  Women have improved the Court, but age sometimes makes us wonder, still, if new ideas wouldn’t help.

Rolling Stones in 2012, 50th anniversary

Left to right, Charlie Watts, Keith Richard, Ron Wood and Mick Jagger; Bill Wyman absent from this photo; Rolling Stones, 50th Anniversary Tour 2012 – Samir Hussein photo WireImage, via Rolling Stone magazine. Other than no ties, they dress not-too flamboyantly.

Maybe we should wonder about increasing the wisdom that comes with age:

Rolling Stones:

Mick Jagger, 69

Keith Richards, 68

Charlie Watts, 71

Ronnie Wood, 65

Bill Wyman (rejoining them on tour), 76

Average age:  69.8 years (calculated from whole years only)

U.S. Supreme Court:

Antonin Scalia, 76

Anthony Kennedy, 76

Clarence Thomas, 64

Ruth Bader Ginsburg, 79

Stephen Breyer, 74

John G. Roberts, 57

Samuel A. Alito, Jr., 62

Sonia Sotomayor, 58

Elena Kagan, 52

Average age:  68.4 years

U.S. Supreme Court, Roberts Court 2010 – Back row (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony Kennedy, and Ruth Bader Ginsburg – Wikimedia image. This bunch wears less colorful, but sillier costumes. Justice Ginsburg tends to favor neckwear the same way Keith Richards does; what else might they have in common?

A wise-beyond-his-teen-years camper at Camp Rising Sun of the Louis August Jonas Foundation, in the 1960s or early 1970s, observed, “You cannot be both young and brave, and old and wise.”  Certainly one would hope to achieve the happier medium of brave and wise (not necessarily in that order), but humans being who we are and experience being the master teacher that it is, we find ourselves on one end of both spectra, either wizened in age, or brave perhaps because of youth.

The Stones, celebrating their 50th year as a band in 2012, probably rock better than the Court does.  One can’t help wondering whether the wisdom of the Stones wouldn’t serve us better than that of the current court.  Ironically, those most wise at the Court tend to be the younger ones (Breyer definitely excluded).  I’d be inclined to swap out Alito and Scalia  for any two of the Stones.  Maybe Roberts for a third.

Thomas?  Well, he’s almost a contemporary, and I had lunch with him a couple of times (Senate staff).  I hate to criticize a lunch companion so.  But comparing Jagger’s record at the London School of Economics with Thomas’s record in academia, yeah, I could be persuaded.  I dealt with Breyer, too (not at lunch), and am inclined to think he could rock pretty well.

Perhaps the answer is that we need more rock and roll in the halls of justice.  Pete Seeger, Arlo Guthrie and Bruce Springsteen, among others, would probably agree.

If both groups banned the use of hair dye, would it improve anything they do?

Which bunch would you rather have dispensing final decisions on justice?  Which bunch would you prefer to see in concert?

More:


Go to the original source: Supreme Court’s decision on Obamacare

June 28, 2012

You can read the entire decision here:  http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

5-4 decision, Chief Justice Roberts voting to uphold the bill, Kennedy voting against and leading the dissent.

Official 2005 photo of Chief Justice John G. R...

Official 2005 photo of Chief Justice John G. Roberts (Photo credit: Wikipedia)

Syllabus from the case (links added for your convenience, not in the original):

NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF
HEALTH AND HUMAN SERVICES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 11–393. Argued March 26, 27, 28, 2012—Decided June 28, 2012*

*Together with No. 11–398, Department of Health and Human Services et al. v. Florida et al., and No. 11–400, Florida et al. v. Department of Health and Human Services et al., also on certiorari to the same court.

In 2010, Congress enacted the Patient Protection and Affordable Care Act in order to increase the number of Americans covered by health insurance and decrease the cost of health care. One key provision is the individual mandate, which requires most Americans to maintain“minimum essential” health insurance coverage. 26 U. S. C. §5000A.For individuals who are not exempt, and who do not receive health insurance through an employer or government program, the means of satisfying the requirement is to purchase insurance from a private company. Beginning in 2014, those who do not comply with the mandate must make a “[s]hared responsibility payment” to the Federal Government. §5000A(b)(1). The Act provides that this “penalty”will be paid to the Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the same manner” as tax penalties. §§5000A(c), (g)(1). Another key provision of the Act is the Medicaid expansion. The current Medicaid program offers federal funding to States to assist pregnant women, children, needy families, the blind, the elderly, and the disabled in obtaining medical care. 42 U. S. C. §1396d(a). The Affordable Care Act expands the scope of the Medicaid program and increases the number of individuals the States must cover. For example, the Act requires state programs to provide Medicaid coverage by 2014 to adults with incomes up to 133 percent of the federal poverty level, whereas many States now cover adults with children only if their income is considerably lower, and do not cover childless adults at all. §1396a(a)(10)(A)(i)(VIII). The Act increases federal funding to cover the States’ costs in expanding Medicaid coverage. §1396d(y)(1). But if a State does not comply with the Act’s new coverage requirements, it may lose not only the federal funding for those requirements, but all of its federal Medicaid funds. §1396c.

Twenty-six States, several individuals, and the National Federation of Independent Business brought suit in Federal District Court,challenging the constitutionality of the individual mandate and the Medicaid expansion. The Court of Appeals for the Eleventh Circuit upheld the Medicaid expansion as a valid exercise of Congress’s spending power, but concluded that Congress lacked authority to enact the individual mandate. Finding the mandate severable from the Act’s other provisions, the Eleventh Circuit left the rest of the Act intact.

Held: The judgment is affirmed in part and reversed in part.
648 F. 3d 1235, affirmed in part and reversed in part.

1. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit.
The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund. The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. Pp. 11–15.

2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30.

(a) The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity.” E.g., United States v. Lopez, 514 U. S. 549, 560. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so  affects commerce.

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” Pp. 16–27.

(b) Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. E.g., United States v. Comstock, 560 U.S. ___. The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such an expansion of federal power is not a “proper” means for making those reforms effective. Pp. 27–30.

3. CHIEF JUSTICE ROBERTS concluded in Part III–B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.

The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for the reasons explained, the Commerce Clause does not give Congress that power.It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.” Art. I, §8, cl. 1. In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, 657, the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31–32.

4. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III–C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause. Pp. 33–44.

(a) The Affordable Care Act describes the “[s]hared responsibility payment” as a “penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. It does not, however, control whether an exaction is within Congress’s power to tax. In answering that constitutional question, this Court follows a functional approach,“[d]isregarding the designation of the exaction, and viewing its substance and application.” United States v. Constantine, 296 U. S. 287,
294. Pp. 33–35.

(b) Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance. See New York v. United States, 505 U. S. 144, 169–174. Pp. 35–40.

(c) Even if the mandate may reasonably be characterized as a tax, it must still comply with the Direct Tax Clause, which provides:“No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” Art. I, §9, cl. 4. A tax on going without health insurance is not like a capitation or other direct tax under this Court’s precedents. It therefore need not be apportioned so that each State pays in proportion to its population. Pp. 40–41.

5. CHIEF JUSTICE ROBERTS, joined by JUSTICE BREYER and JUSTICE KAGAN, concluded in Part IV that the Medicaid expansion violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion. Pp. 45–58.

(a) The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.” Art. I, §8, cl. 1. Congress may use this power to establish cooperative state-federal Spending Clause programs. The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs. Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17. “[T]he Constitution simply does not give Congress the authority to require the States to regulate.” New York v. United States, 505 U. S. 144, 178. When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism. Cf. South Dakota v. Dole, 483 U. S. 203, 211. Pp. 45–51.

(b) Section 1396c gives the Secretary of Health and Human Services the authority to penalize States that choose not to participate in the Medicaid expansion by taking away their existing Medicaid funding. 42 U. S. C. §1396c. The threatened loss of over 10 percent of a State’s overall budget is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion. The Government claims that the expansion is properly viewed as only a modification of the existing program, and that this modification is permissible because Congress reserved the “right to alter, amend, or repeal any provision” of Medicaid. §1304. But the expansion accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for particular categories of vulnerable individuals. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. A State could hardly anticipate that Congress’s reservation of the right to “alter” or “amend” the Medicaid program included the power to transform it so dramatically. The Medicaid expansion thus violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion. Pp. 51–55.

(c) The constitutional violation is fully remedied by precluding the Secretary from applying §1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion. See §1303. The other provisions of the Affordable Care Act are not affected. Congress would have wanted the rest of the Act to stand, had it known that States would have a genuine choice whether to participate in the Medicaid expansion. Pp. 55–58.

6. JUSTICE GINSBURG, joined by JUSTICE SOTOMAYOR, is of the view that the Spending Clause does not preclude the Secretary from withholding Medicaid funds based on a State’s refusal to comply with the expanded Medicaid program. But given the majority view, she agrees with THE CHIEF JUSTICE’s conclusion in Part IV–B that the Medicaid Act’s severability clause, 42 U. S. C. §1303, determines the appropriate remedy. Because THE CHIEF JUSTICE finds the withholding—not the granting—of federal funds incompatible with the Spending Clause, Congress’ extension of Medicaid remains available to any State that affirms its willingness to participate. Even absent §1303’scommand, the Court would have no warrant to invalidate the funding offered by the Medicaid expansion, and surely no basis to tear down the ACA in its entirety. When a court confronts an unconstitutional statute, its endeavor must be to conserve, not destroy, the legislation. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 328–330. Pp. 60–61.

Read the entire decision, and its dissents, for the authoritative view . . .

Earlier related articles:


Activist Supreme Court?

June 25, 2012

Today’s the day, most likely, the Supreme Court will announce the results of the legal challenges to what has come to be called ObamaCare.

English: West face of the United States Suprem...

West face of the United States Supreme Court building in Washington, D.C. (Photo credit: Wikipedia)

In a twist of fate, conservatives are praying for an activist court to go against precedent, and strike the plan down.  They hope that will improve their chances of getting into the driver’s seat of federal government again in November, because a fiscal ditch is looming and they find the temptation too strong to resist.

Ezra Klein’s Wonkbook noted:

Most legal scholars think the mandate is constitutional, but few are confident it will be upheld. ”The U.S. Supreme Court should uphold a law requiring most Americans to have health insurance if the justices follow legal precedent, according to 19 of 21 constitutional law professors who ventured an opinion on the most-anticipated ruling in years. Only eight of them predicted the court would do so…Five of the 21 professors who responded, including Whitman, said the court is likely to strike down the coverage requirement. Underscoring the high stakes and complexity of the debate, eight described the outcome as a toss-up..” Bob Drummond in Bloomberg.

Klein’s post is titled “Everything you need to know about health care and SCOTUS in one post.”  He covers the waterfront — you should read it.

Interesting day.  I’ll be traveling.


Heart of Atlanta Motel and civil rights

December 28, 2011

PG posted this photo in one of his collections at Chamblee54:

Heart of Atlanta Motel, 1956 - Special Collections and Archives,Georgia State University Library

Heart of Atlanta Motel, 1956 - Special Collections and Archives,Georgia State University Library

I wondered whether this is the motel in the case testing the 1964 Civil Rights Act — and sure enough, it is.  The case was decided, finally, by the U.S. Supreme Court in 1964, Heart of Atlanta Motel, Inc., v. United States, 379 U.S. 241 (1964) .

This important case represented an immediate challenge to the Civil Rights Act of 1964, the landmark piece of civil rights legislation which represented the first comprehensive act by Congress on civil rights and race relations since the Civil Rights Act of 1875. For much of the 100 years preceding 1964, race relations in the United States had been dominated by segregation, a system of racial separation which, while in name providing for “separate but equal” treatment of both white and black Americans, in truth perpetuated inferior accommodation, services, and treatment for black Americans.

During the mid-20th century, partly as a result of cases such as Powell v. Alabama, 287 U.S. 45 (1932); Smith v. Allwright, 321 U.S. 649 (1944); Shelley v. Kraemer, 334 U.S. 1 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950); NAACP v. Alabama, 357 U.S. 449 (1958); Boynton v. Virginia, 364 U.S. 454 (1960) and probably the most famous, Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), the tide against segregation began to turn. However, segregation remained in full effect into the 1960s in parts of the southern United States, where the Heart of Atlanta Motel was located, despite these decisions.

The Atlanta Time Machine, a great collection of photos in the history of Atlanta and Georgia, has more photos, and this description of the site:

The Heart of Atlanta motel, located at 255 Courtland Street NE, was owned by Atlanta attorney Moreton Rolleston Jr.  Rolleston, a committed segregationist, refused to rent rooms at his hotel to black customers.  Upon passage of the Civil Rights Act of 1964, Rolleston immediately filed suit in federal court to assert that the law was the result of an overly broad interpretation of the U.S. Constitution’s commerce clause.  Rolleston represented himself in the case, HEART OF ATLANTA MOTEL, INC. v. UNITED STATES ET AL., which  went all the way to the United States Supreme Court.  Rolleston lost when the Supreme Court ruled that Congress was well within its powers to regulate interstate commerce in such a manner.  The Hilton Hotel now stands on the former site of the Heart of Atlanta Motel.

Texts in law school rarely have illustrations.  I know the motel mostly as a citation on pages of text, great grey oceans of somnambulent text.  This case is important in civil rights, though it is mentioned almost never in history texts.  What are these cases really about?  These photos offer us insight.

The Heart of Atlanta Motel aspired to greatness in the late 1950s and 1960s — evidenced by this publicity flyer photo from the Atlanta Time Machine; notice the flag flying for the motel’s Seahorse Lounge (Atlanta is landlocked):

Heart of Atlanta Motel publicity photo - Atlanta Time Machine

Heart of Atlanta Motel publicity photo - Atlanta Time Machine; not just a podunk "motor lodge," but a "resort motel." Click for larger image.

For the 1960s, this place offered great amenities, including two swimming pools and in-room breakfast service.

Flyer for the Heart of Atlanta Motel, circa 1960 - Atlanta Time Machine image

Flyer for the Heart of Atlanta Motel, circa 1960 - Atlanta Time Machine image

This photo is amusing — I can just imagine the difficulties of launching a motor boat of this size in one of the swimming pools, obviously for a publicity stunt.  The photo is dated February 27, 1960, in the Pullen Library Collection.

Boat in the pool at the Heart of Atlanta Motel, 1960 - Atlanta Time Machine image

Boat in the pool at the Heart of Atlanta Motel, 1960 - Atlanta Time Machine image

To compare how times have changed, you may want to look at this aerial photo of the area, including the Heart of Atlanta Hotel, and compare it with modern photos which show the Hilton Hotel that replaced the property.

Rolleston appears to have had a big ego.  As noted above, he represented himself in this case, and he argued it in the Supreme Court.  Here’s a picture from about that time, from the University of Missouri-Kansas City Law School “Famous Trials” site:

Moreton Rolleston, Jr., owner of the Heart of Atlanta Motel and the attorney who argued the case at the Supreme Court - UMKC Law School image

Moreton Rolleston, Jr., owner of the Heart of Atlanta Motel and the attorney who argued the case at the Supreme Court - UMKC Law School image; photo: Wayne Wilson/Leviton-Atlanta

You may decide for yourself whether this fits the old legal aphorism that a lawyer who represents himself in a case has a fool for a client.  The Oyez site at the University of Chicago provides access to the audio of the oral arguments.  Did Rolleston argue ably?  Rolleston argued against Archibald Cox, who went on to fame in the Watergate scandals.  This appears to have been Rolleston’s only appearance before the Supreme Court; it was Cox’s ninth appearance (he argued 20 cases before the Court in his career, several well known and notable ones).

Heart of Atlanta vs. United States was argued on October 5, 1964.  The opinion was issued on December 14, 1964, a 9-0 decision against Rolleston and segregation authored by Justice Tom C. Clark (one of Dallas’s earliest Eagle Scouts).

This was a fight Mr. Rolleston picked.  He was not cited nor indicted for violation of the Civil Rights Act, but instead asked for an injunction to prevent the law’s enforcement; according to the published decision,

Appellant, the owner of a large motel in Atlanta, Georgia, which restricts its clientele to white persons, three-fourths of whom are transient interstate travelers, sued for declaratory relief and to enjoin enforcement of the Civil Rights Act of 1964, contending that the prohibition of racial discrimination in places of public accommodation affecting commerce exceeded Congress’ powers under the Commerce Clause and violated other parts of the Constitution. A three-judge District Court upheld the constitutionality of Title II, §§ 201(a), (b)(1) and (c)(1), the provisions attacked, and, on appellees’ counterclaim, permanently enjoined appellant from refusing to accommodate Negro guests for racial reasons.

Oyez summarizes the case question:

Facts of the Case 

Title II of the Civil Rights Act of 1964 forbade racial discrimination by places of public accommodation if their operations affected commerce. The Heart of Atlanta Motel in Atlanta, Georgia, refused to accept Black Americans and was charged with violating Title II.

Question 

Did Congress, in passing Title II of the 1964 Civil Rights Act, exceed its Commerce Clause powers by depriving motels, such as the Heart of Atlanta, of the right to choose their own customers?

The decision turned on the commerce clause, and the reach of Congressional power to regulate interstate commerce.

Decision: 9 votes for U.S., 0 vote(s) against
Legal provision: Civil Rights Act of 1964, Title II

The Court held that the Commerce Clause allowed Congress to regulate local incidents of commerce, and that the Civil Right Act of 1964 passed constitutional muster. The Court noted that the applicability of Title II was “carefully limited to enterprises having a direct and substantial relation to the interstate flow of goods and people. . .” The Court thus concluded that places of public accommodation had no “right” to select guests as they saw fit, free from governmental regulation.

Good decision.

Heart of Atlanta Motel is gone.  The site is occupied by the Hilton Atlanta, today.


Scalia and Thomas: Neither is Caesar’s wife

November 18, 2011

It sure looks like a breach of ethics, but James Oliphant writes in the Los Angeles Times that there is no formal rule prohibiting a sitting Supreme Court justice from hobnobbing with a law firm set to argue a gargantuan case in a few months.

The day the Supreme Court gathered behind closed doors to consider the politically divisive question of whether it would hear a challenge to President Obama’s healthcare law, two of its justices, Antonin Scalia and Clarence Thomas, were feted at a dinner sponsored by the law firm that will argue the case before the high court.

The occasion was last Thursday, when all nine justices met for a conference to pore over the petitions for review. One of the cases at issue was a suit brought by 26 states challenging the sweeping healthcare overhaul passed by Congress last year, a law that has been a rallying cry for conservative activists nationwide.

The justices agreed to hear the suit; indeed, a landmark 5 1/2-hour argument is expected in March, and the outcome is likely to further roil the 2012 presidential race, which will be in full swing by the time the court’s decision is released.

The lawyer who will stand before the court and argue that the law should be thrown out is likely to be Paul Clement, who served as U.S. solicitor general during the George W. Bush administration.

Clement’s law firm, Bancroft PLLC, was one of almost two dozen firms that helped sponsor the annual dinner of the Federalist Society, a longstanding group dedicated to advocating conservative legal principles. Another firm that sponsored the dinner, Jones Day, represents one of the trade associations that challenged the law, the National Federation of Independent Business.

Another sponsor was pharmaceutical giant Pfizer Inc, which has an enormous financial stake in the outcome of the litigation. The dinner was held at a Washington hotel hours after the court’s conference over the case. In attendance was, among others, Mitch McConnell, the Senate’s top Republican and an avowed opponent of the healthcare law.

The featured guests at the dinner? Scalia and Thomas.

One wishes for some of the usual journalistic “balancing,” with someone to note who among the crowd represents the opposite side in the case, and someone else to note that the dinner had a lot of other sponsors.  But one might get uneasy thinking that the usual journalistic balancing can’t be mustered here, and that Scalia and Thomas just don’t care about appearances of ethical violations, if they can get away with it.

Lower court judges have clear ethical guidance on the issue, counseling against such appearances:

It’s nothing new: The two justices have been attending Federalist Society events for years. And it’s nothing that runs afoul of ethics rules. In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal judges.

If they were, they arguably fell under code’s Canon 4C, which states,A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event.“

Those rules do not apply to the nine people who sit on the nation’s highest court.

In those few times I lunched with Thomas and worked with him, when he staffed environmental issues for Indiana’s Missouri’s Sen. John Danforth, I found him an agreeable lunch companion and smart, but a great idealogue.  Had I known then what we all know now, I would have paid closer attention, asked different and sharper  questions, and kept notes.  And I might have dropped a few hints about history, and Caesar’s wife.  Supreme Court justices should consider themselves wedded to the American republic, and act accordingly.

What do you think, Dear Reader?  Was this a violation of ethics, even if not required by the rules that apply to Supreme Court justices?


Justice Ginsburg errs, wonderfully

July 8, 2009

David Bernstein writing at the Volokh Conspiracy corrects Justice Ginsburgh.  She told a reporter for the New York Times that she thought nominee Sonia Sotomayor might be, when confirmed, the first justice who didn’t speak English as a first language at home.

Not so fast, Bernstein said.  In a wonderful and fun display of historical knowledge and research, suggests several justices from earlier appointments who spoke something other than English first.

  • Justice Louis Brandeis, German -
    “I’m not sure what language was primarily spoken in the Brandeis household, but I would guess German, based on the following information: Brandeis’s parents were German-speaking immigrants; Brandeis attended a German-language elementary school, the ‘German and English Academy;’ the school was co-founded by his father, suggesting that his father had great fondness for the German language and culture; and Brandeis spent two of his teenage years studying in Germany.”
  • Maybe Justice Arthur Goldberg, Yiddish -
    “It’s also possible that Arthur Goldberg’s parents, immigrants from a shtetl in Ukraine, spoke Yiddish at home.”
  • Justice Felix Frankfurter almost definitely, German -
    ” . . . a commenter points out that Felix Frankfurter’s family didn’t arrive in the U.S. from Vienna until Frankfurter was twelve years old.”
  • Justice Clarence Thomas, Gullah -
    ” . . . I remembered that Justice Thomas’s first language is Gullah, an Afro-English creole dialect”

Thomas spoke Gullah originally?  When we shared a wall on Senate staff (he on John Danforth’s staff, I on Orrin Hatch’s), we also shared lunch on a few occasions, and meetings on energy and environment issues.  I was struck by his great enunciation, the clear way that he used his nearly baritone voice to make English work.  I wonder whether he can still command Gullah — it’s got to be one of the most minority languages on Earth right now.  Fascinating.

Are there other Supreme Court justices who may have spoken a language other than English, first?  Historians?  Got candidates? Justice Warren Burger’s family was of German descent, and in Minnesota, when he was born, it would not have been uncommon for an entire town to have German as its primary language.  I haven’t found anything to suggest that’s the case, though. Justice William J. Brennan’s parents were Irish immigrants, so there is an outside chance they spoke some Gaelic dialect.

I wouldn’t be surprised if we could find another justice who served between 1840 and 1960 with German as a first language.

How about Cardozo, and a Sephardic dialect, or Portuguese?  Any justices of French descent?  Welsh descent?  Readers, help out!


Texas Darlin’ on Sotomayor: Still ugly

June 15, 2009

I can’t bite my tongue and let idiots rage on unfairly and inaccurately about important matters.

Earlier I noted the difficulties with reality at Texas Darlin’.  The warden of the blog dropped by and suggested I should join the discussion there if I had something to say.  It always ends badly.  Someone there says something plug ugly stupid, and I note the facts.  My posts get edited, or censored.

Some post linked there, and I looked.  I couldn’t resist.  The owner and commenters are flailing around like a bass in the boat, trying to make a case that Sonia Sotomayor shouldn’t be a justice of the Supreme Court.  They have convinced themselves that she’s a racist, she’s sexist, she got where she is solely because of affirmative action and the Great Cabal that Runs the World.  And they are stuffing tinfoil in their ears now — it makes their hats leak, but it keeps them from hearing anything that might upset them.

I expect they’ll remove my posts soon.  If you care, I’ve made some defense of Sonia Sotomayor, and I copied the posts below the fold.  Texas Darlin’ inmates correspondents repeat every canard about Sotomayor you can imagine.  And some you can’t imagine.

Texas Darlin’ is neither.

I am persuaded to do a series of posts on the nomination of Sotomayor.  In the interim, here’s my attempt to square things at Texas Darlin’, below the fold.

Read the rest of this entry »


The truth about Judge Sotomayor

June 11, 2009

Nina Totenberg of NPR wins great respect as a reporter on the Supreme Court for a reason:  She’s a great reporter.

Totenberg on Judge Sonia Sotomayor’s alleged race bias:

As a judge, Sotomayor has ruled in 100 cases that involve questions of racial discrimination of one sort or another. Tom Goldstein, Supreme Court advocate and founder of the leading Supreme Court blog, has read all of those decisions. He says that Sotomayor does not seem to put her thumb on the scale and has in fact, most of the time, ruled against those charging discrimination.

In only 1 of out 8 cases, he says, has she favored in some sense claims of discrimination.

“The fact that she so rarely upholds discrimination claims I think answers the idea that she is always angling for minorities,” he says.

Totenberg on Sotomayor’s statements about judge-made law and policy:

And if the New Haven case is a harbinger in one direction, there are other cases that point the other way too. Sotomayor, for example, dissented when her colleagues allowed the New York City Police Department to fire one of its officers for sending hate mail on his own time. While the hate mail was patently offensive, hateful and insulting, Sotomayor wrote, it did not interfere with the operations of the police department, and, she observed, under our Constitution, even a white bigot has the right to speak his mind.

In another case involving a black couple bumped from an American Airlines international flight, Sotomayor said their race discrimination claim was clearly trumped by an international treaty governing airline rules. It matters not, she said, that her ruling might mean airlines could discriminate on a wholesale basis and that there would be no legal recourse. The treaty’s language is clear and it is not for the courts to make policy, she said, adding that if policy is to be changed, Congress or federal agencies must do it.

White bigots ought to study more and flap less.


Fillmore wasn’t the only one with White House/bath tub troubles

June 9, 2009

Jim Butler alerted me to this little piece at I Can Has Cheezburger?  Notice the historical/mathematical error, explained below:

Yeah, it’s funny.  But Taft didn’t serve in all three branches of the federal government. He was never a member of Congress.  He served in the executive branch and the judicial branch, at least twice in each, but he never served in the legislative branch, in Congress.

Taft was collector of taxes for the IRS, Ohio state judge, Solicitor General of the U.S., judge on the Sixth Circuit Court of Appeals for the U.S., chairman of the commission to organize a government for the Philippines after the Spanish-American War, and then Governor-General of the Philippines, Secretary of War for Teddy Roosevelt, Acting Secretary of State, Governor of Cuba, Co-chairman of the National War Labor Board in World War I, and then Chief Justice of the U.S. Supreme Court, but never a member of either the House of Representatives or the Senate.

The LOLphoto is still funny.

Oh.  Kenny just found the same thing posted at Kitchen Pundit.   Still wrong.  Still funny.

What “bathtub trouble?” Well, yeah, we ought to explain that.  The story is that Taft was so large — 330 pounds plus as president — that he once got stuck in a White House bathtub, and consequently had a much larger tub installed there.  Is the story accurate?

Here’s a news story of Taft’s bathing troubles post-presidency, from the New York Times:

CAPE MAY, N.J., June 18 [1915]. — Ex-President Taft, who came here yesterday as the guest of the Pennsylvania Bankers’ Association, took a bath in his apartments in the Hotel Cape May. He failed properly to consider the size of the average seashore hotel bathtub, however, with the result that when he got into the tub the water overflowed and trickled down upon the heads of the guests in the dining room.

And the White House?  Here’s a photo of the specially-made Taft bathtub just before its installation at the White House, about 1911:

Four men show the size of President Tafts bathtub, 1911 - White House Museum.org photo

The National Archives and Records Administration has an exhibit right now at the Archives building on “BIG,” celebrating 75 years of NARA.  Included are orders for big tubs for Taft, and a replica of the giant tub installed at the White House (which was broken when it we removed in 1948 for renovation).

As evidence that William Howard Taft was the biggest man to serve as President of the United States, the exhibit presents the 1909 order for a bathtub and other items specially ordered to accommodate Taft’s 300-plus-pound frame. In January 1909, two months after being elected President (he was inaugurated on March 4, 1909), Taft boarded the USS North Carolina to set sail to inspect the Panama Canal construction zone. The ship was outfitted specially for him. The captain ordered the following items: “1 brass double bedstead of extra length; 1 superior spring mattress, extra strong; 1 bath tub, 5 feet 5 inches in length, over rolled rim and of extra width.” Later newspaper accounts (and a photograph) revealed that the bathtub was built on an even bigger scale—that it had “pondlike dimensions . . . [it] will hold four ordinary men and is the largest ever manufactured . . . the tub is 7 feet 1 inch long, 41 inches wide and weighs a ton.”

Soon after leaving the presidency, Taft lost 70 pounds, which he maintained throughout the remainder of his life. In 1921, Taft was appointed Chief Justice of the United States, becoming the only person to hold the highest office in both the executive and judicial branches.


10 things about Judge Sonia Sotomayor

May 27, 2009

Those people over at MoveOn.org move quickly:

Ten Things To Know About Judge Sonia Sotomayor

  1. Judge Sotomayor would bring more federal judicial experience to the bench than any Supreme Court justice in 100 years. Over her three-decade career, she has served in a wide variety of legal roles, including as a prosecutor, litigator, and judge.
  2. Judge Sotomayor is a trailblazer. She was the first Latina to serve on the Court of Appeals for the Second Circuit and was the youngest member of the court when appointed to the District Court for the Southern District of New York. If confirmed, she will be the first Hispanic to sit on the U.S. Supreme Court.
  3. While on the bench, Judge Sotomayor has consistently protected the rights of working Americans, ruling in favor of health benefits and fair wages for workers in several cases.
  4. Judge Sotomayor has shown strong support for First Amendment rights, including in cases of religious expression and the rights to assembly and free speech.
  5. Judge Sotomayor has a strong record on civil rights cases, ruling for plaintiffs who had been discriminated against based on disability, sex and race.
  6. Judge Sotomayor embodies the American dream. Born to Puerto Rican parents, she grew up in a South Bronx housing project and was raised from age nine by a single mother, excelling in school and working her way to graduate summa cum laude from Princeton University and to become an editor of the Law Journal at Yale Law School.
  7. In 1995, Judge Sotomayor “saved baseball” when she stopped the owners from illegally changing their bargaining agreement with the players, thereby ending the longest professional sports walk-out in history.
  8. Judge Sotomayor ruled in favor of the environment in a case of protecting aquatic life in the vicinity of power plants in 2007, a decision that was overturned by the Roberts Supreme Court.
  9. In 1992, Judge Sotomayor was confirmed by the Senate without opposition after being appointed to the bench by George H.W. Bush.
  10. Judge Sotomayor is a widely respected legal figure, having been described as “…an outstanding colleague with a keen legal mind,” “highly qualified for any position in which wisdom, intelligence, collegiality and good character would be assets,” and “a role model of aspiration, discipline, commitment, intellectual prowess and integrity.”

Sources for each of the 10 things:

1. White House Statement, May 26, 2009.
http://www.moveon.org/r?r=51451&id=16226-5763840-nrcJckx&t=1

2. White House Statement, May 26, 2009.
http://www.moveon.org/r?r=51451&id=16226-5763840-nrcJckx&t=2

3. Cases: Archie v. Grand Cent. Partnership, 997 F. Supp. 504 (S.D.N.Y. 1998) and Marcella v. Capital Dist. Physicians’ Health Plan, Inc., 293 F.3d 42 (2d Cir. 2002).

4. Cases: Flamer v. White Plains, 841 F. Supp. 1365 (S.D.N.Y. 1993), Ford v. McGinnis, 352 F.3d 382 (2d Cir. 2003), and Campos v. Coughlin, 854 F. Supp. 194 (S.D.N.Y. 1994).

5a. “Sotomayor’s Notable Court Opinions and Articles,” The New York Times, May 26, 2009.
http://www.moveon.org/r?r=51454&id=16226-5763840-nrcJckx&t=3

5b. Cases: Bartlett v. N.Y. State Board, 970 F. Supp. 1094 (S.D.N.Y. 1997), Greenbaum v. Svenska Hendelsbanken, 67 F.Supp.2d 228 (S.D.N.Y. 1999), Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001), and Gant v. Wallingford Board of Education, 195 F.3d 134 (2d Cir. 1999).

6. “Sonia Sotomayor: 10 Things You Should Know,” The Huffington Post, May 26, 2009.
http://www.moveon.org/r?r=51452&id=16226-5763840-nrcJckx&t=4

7. “How Sotomayor ‘Saved’ Baseball,” Time, May 26, 2009.
http://www.moveon.org/r?r=51455&id=16226-5763840-nrcJckx&t=5

8. “Sotomayor’s resume, record on notable cases,” CNN, May 26, 2009.
http://www.moveon.org/r?r=51453&id=16226-5763840-nrcJckx&t=6

9. “Sotomayor’s resume, record on notable cases,” CNN, May 26, 2009.
http://www.moveon.org/r?r=51453&id=16226-5763840-nrcJckx&t=7

10a. Judge Richard C. Wesley, a George W. Bush appointee to the Second Circuit.
http://www.moveon.org/r?r=51451&id=16226-5763840-nrcJckx&t=8

10b. “Sotomayor is Highly Qualified,” The Wall Street Journal, May 9, 2009.
http://www.moveon.org/r?r=51456&id=16226-5763840-nrcJckx&t=9

10c. Honorary Degree Citation, Pace University School of Law, 2003 Commencement.

  • Judge Sotomayor is a widely respected legal figure, having been described as “…an outstanding colleague with a keen legal mind,” “highly qualified for any position in which wisdom, intelligence, collegiality and good character would be assets,” and “a role model of aspiration, discipline, commitment, intellectual prowess and integrity.”ere are the sources for the ten statements:

  • Supreme Court tryouts

    March 20, 2009

    Elena Kagan took the oath of office to be the nation’s top lawyer, the Solicitor General, last Friday.  The Associated Press is running a story (here from the Sacramento Bee) on whether this is a tryout for the Supreme Court itself, “Obama could make top high court lawyer a justice.”  (Isn’t that a tortured headline?)

    Three justices may want to retire soon:  Justice John Paul Stevens is 88 years old.  Justice Ruth Bader Ginsburg is 76, and back on the court in record time after surgery for pancreatic cancer.  Justice David Souter is third oldest, at 69.

    So, this AP story could be a good article for use in government classes.  Consider these questions:

    • Is Solicitor General a stepping stone to the Supreme Court’s bench?
    • What is the role of the Solicitor General?
    • How important is Supreme Court experience, or experience in other courtrooms, to success in arguing before the Supreme Court?
    • What are some of the top cases before the Supreme Court this term, and what are the potential and likely results of these appeals?
    • What is the role of the U.S. Senate in selection of federal judges, and especially in the selection of Supreme Court justices?
    • Kagan clerked for Justice Thurgood Marshall.  What do law clerks do for justices?  What does her clerking suggest for Kagan’s advocacy of Voting Rights Act issues, since she worked with Justice Thurgood Marshall?

    Resources:


    Meanwhile, back in reality, Obama’s election certified

    January 9, 2009

    It’s one of those arcane and many argue archaic things the “founders” left us, but the electoral college’s process of electing the president of the U.S. rumbled to completion yesterday when Congress opened the ballots from the electors, and then certified that Barack Obama will be the next president of the U.S.

    Preparations for the inauguration continue unabated.

    But for those still clinging to their tinfoil hats, even as the deadline rapidly approaches to go to High Definition Television, January 9 and January 16 offer chances for the Supreme Court to overturn the election, by ruling Obama’s birth was invalid.  Some, confusing the Supreme Court with Congress, urge a landslide of letters to the Court itself (“that’ll show ‘em!”).

    I’ve managed to get myself banned at that last website.  I asked the author to make a case, to provide the evidence and arguments against Obama’s eligibility.  Such an appearance of gravity and Newtonian physics scares the bejeebers out of these groups.

    One of the most intrigueing questions now:  What will the Bergites and Dononfrions do after inauguration? Are there enough of them that Pfizer is working on a treatment, or cure?


    FAIL repeated: Challenges to Obama’s eligibility

    December 26, 2008

    Some weeks ago we visited six hurdles that the case against Barack Obama’s eligibility for the presidency would have to overcome to disqualify him.

    All six hurdles still remain.  No one has made any serious response to any of the six.

    Above the West Entrance to the U.S. Supreme Court is engraved Equal Justice Under Law

    Above the West Entrance to the U.S. Supreme Court is engraved "Equal Justice Under Law"

    But the Birth Certificate Obsessed (BCO) people go on and on.

    Let me note that the six hurdles still stand — six reasons why the objections to Obama’s eligibility will fail:

    1. Obama has a U.S. passport (claims that he doesn’t have a passport were put to rest when it was revealed, in March 2008, that State Department workers had illegally accessed his passport records).
    2. Because we know Obama has a U.S. passport, we can be quite sure his draft status was verified before it was issued — which puts to bed any issue about his registering for the draft (which he wouldn’t have been required to do in any case until 1980 — draft registration had been suspended in 1973 until the Afghanistan/Soviet crisis).
    3. Obama’s a lawyer; the National Conference of Bar Examiners, or the Illinois Bar, would have checked on any problems that surfaced when verifying his fitness to practice law.
    4. Obama was a U.S. senator; as a matter of course, the FBI does a background check on every U.S. senator to verify they may view top secret material. Security clearances are absolutely necessary for members of the Intelligence Oversight Committee, the Foreign Relations Committee, and the Armed Services Committee.  Obama was a member of the Foreign Relations Committee, chairing the subcommittee that deals with U.S. relations with NATO — a post that requires top secret clearances.
    5. Obama has been getting the full national security briefing every day that the president gets; CIA and Homeland Security would have to verify his top secret clearances, and then some.  There is absolutely no indication that this top, top check was not carried out.
    6. Perhaps most important, Obama posted an image of his birth certificate on-line in June; experts who checked the actual document verify it is real, and therefore authoritative.

    Each of these six circumstances creates a rebuttable presumption that Obama is a citizen, and a natural born citizen under the somewhat ambiguous requirements of Article II of the Constitution.  In order to make a case that Obama is ineligible, contestants would need to make a strong showing, with clear evidence, to rebut the presumptions created by by these official actions.

    Professional poker player Leo Donofrio has made no such evidentiary showing, anywhere, at any time.  Nor has any other Obama critic presented any evidence to overcome any of these six presumptions.

    Recently a poster named Carlyle complained that my previous post had been unknown to him. While I posted trackbacks to his post at Texas Darlin’, that blog censors my posts and trackbacks, and thereby deprived this BCO from knowing about the facts (indeed, trackbacks are automatic, since Texas Darlin’ is also a WordPress blog; the only way the trackbacks and comments don’t show up at TD’s blog is because she censors them).  With some fury, Carlyle and others found that post from November 27 and complained I was unfair to them.  However, none has presented any serious challenge to the six hurdles.

    How can I be unfair when they won’t make a case?

    Here, below the fold, is an example of the heated and off-target responses I’ve gotten.  Of course, I offer comments as we go.

    Read the rest of this entry »


    Supreme Court won’t review challenge to Obama

    December 15, 2008

    The Associated Press reports that the Supreme Court refused for the second time to take a second case challenging the eligibility of Barack Obama to be president.

    Cort Wrotnowski alleged that Obama’s father’s British citizenship made Obama’s birth citizenship different from “natural born” citizenship as the Constitution says the president must be.

    There was no comment on the case from the Court, just a note that the appeal was not taken.

    Tinfoil hat concessionaires on Capitol Hill were disappointed.

    In other news, electors are meeting today to elect Obama president.


    Follow

    Get every new post delivered to your Inbox.

    Join 1,991 other followers

    %d bloggers like this: