President Obama and the Supreme Court

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Supreme Court of the United States

 

2015

8 December
Politics Are Dominating The Supreme Court This Week. That’s Not Good.
If a majority of the justices get their way, the rules of the democratic process could get tougher than ever before.
The Supreme Court did three things on Tuesday, and all three had to do with politics.
More precisely, they all had to do with the politicization of the rules of voting, redistricting and representation — and how state and national laws, and the U.S. Constitution, keep it all in check. Or don’t.
The main event was Evenwel v. Abbott, a high-profile case that threatens to change the rules for who gets to put people in power at the state level — much to the likely detriment of Latinos, immigrants, families with children and even prisoners.
But before that, a unanimous court decided Shapiro v. McManus, an under-the-radar case dealing precisely with the role of federal courts in deciding these kinds of disputes. In a brief, eight-page ruling, Justice Antonin Scalia and his colleagues essentially made it easier for courts to entertain these cases.
Then came the hearing in Harris v. Arizona Independent Redistricting Commission, the second order of the day on Tuesday. This case hasn’t received nearly as much media attention as Evenwel, but it is just as politically charged
29 June
Justice Ginsburg Deals a Blow to Partisan Gerrymandering
Supreme Court conservatives attack RBG’s opinion as “outrageously wrong.”
In a victory for opponents of partisan gerrymandering, the Supreme Court on Monday upheld the use of an independent commission to draw Arizona’s congressional districts. Writing for a narrow majority in the 5-4 ruling, Justice Ruth Bader Ginsburg touted the importance of direct democracy and making sure the power of the people is not hijacked by its elected representatives.
Supreme Court upholds lethal injection procedure
A divided Supreme Court on Monday turned aside claims by death-row inmates that a drug to be used in their executions would lead to an unconstitutional level of suffering, a narrow but unequivocal ruling that made clear that states have leeway in carrying out the death penalty.
The relatively limited issue in Glossip v. Gross gave way to a broader dispute among the court’s nine members, one that reflects the debate in society: Can the ultimate punishment for the most horrendous acts be equitably and humanely applied and confined to the truly guilty?
Two justices who have been on the Supreme Court bench for decades wrote a long dissent saying it was time for the court to take another look at whether the death penalty could ever be carried out in accordance with the Constitution.
US supreme court refuses to let Texas close 10 abortion clinics
Justices rule 5-4 to grant emergency appeal from clinics that will for now prevent state from enforcing restrictions that would have caused clinics to close
Supreme Court Restricts the EPA’s Ability to Curb Mercury Emissions
This ruling does not invalidate the mercury regulations altogether. Rather, it simply requires the EPA to reconsider costs to power plants before deciding whether the regulations are “appropriate and necessary.” Presuming it considers these costs and decides that the regulations remain necessary, the EPA may again impose the new emissions standards.

The nation is still catching its breath from last week’s rulings in favor of same-sex marriage and the Affordable Care Act, but the Supreme Court has three important decisions to go before it closes its term on Monday. The court on Monday will decide cases on congressional redistricting, lethal injection and power plant emissions, each with significant political, criminal justice and environmental ramifications.

gay pride white house

Supreme Court Declares Same-Sex Marriage Legal In All 50 States

The poetic concluding paragraph of the Supreme Court decision:
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered.”

Bobby Jindal: ‘Let’s just get rid of the court’
In the wake of Friday’s historic Supreme Court ruling on marriage equality, Republicans did not hold back their rage – but few politicians went as far as 2016 candidate Gov. Bobby Jindal.
The Louisiana Republican, who launched a long-shot bid for the presidency last week, suggested that the 5-4 ruling, which made same-sex marriage legal throughout the nation, was cause for disbanding the entire Supreme Court.
Although several other 2016 GOP candidates came out in opposition to the decision, with a few even suggesting the need for a Constitutional Amendment to overturn it, they all stopped short of advocating for what amounts to an undemocratic insurrection. Ted Cruz: Constitutional Remedies to a Lawless Supreme Court
25 June
Supreme Court Guide: Four Big Decisions Remain and now there are 3
1. Execution Methods
Glossip v. Gross
At issue: Whether the sedative midazolam presents an unconstitutional risk of severe pain in executions of condemned criminals.Three men on Oklahoma’s death row claim that midazolam, the anesthetic the state plans to administer before introducing paralytic and heart-stopping drugs to their bloodstreams, is unreliable, exposing them to an unconstitutional risk of severe pain as they are put to death.
2. Power-Plant Emissions
Utility Air Regulatory Group v. EPA et. al.
Issue: Whether the EPA unreasonably disregarded costs when it decided to regulate power plant emissions of mercury and other air toxins. The regulations would cost $9.6 billion annually, according to EPA estimates. But the agency said it was appropriate to consider only public health risks—not industry costs—when it decided to regulate coal- and oil-fired generation plants.
3. Congressional Redistricting
Arizona State Legislature v. Arizona Independent Redistricting Commission
Issue: Whether a state may transfer redistricting authority from the legislature to a nonpartisan independent commission. Arizona voters in 2000 passed a ballot initiative that shifted responsibility for drawing congressional districts from the state legislature to an independent redistricting commission made up of two Democrats, two Republicans and an independent.
4. Same-Sex Marriage
Obergefell v. Hodges et. al.
Issue: Whether the 14th Amendment permits states to deny marriage to same-sex couples, or to deny recognition to same-sex marriages performed in states or countries that allow them. On a national right to marry, the outcome could be headed for a 5-4 split one way or another. But the court also is weighing an incremental step that potentially could attract more justices: upholding state marriage restrictions while compelling states to recognize legal same-sex marriages from other states.
25 June

Supreme Court saves Obamacare

(CNN) Obamacare has survived — again.
In a moment of high drama, Chief Justice John Roberts sent a bolt of tension through the Court when he soberly announced that he would issue the majority opinion in the case. About two-thirds of the way through his reading, it became clear that he again would be responsible for rescuing Obamacare.
In a 6-3 decision, the Supreme Court saved the controversial health care law that will define President Barack Obama’s administration for generations to come.
The ruling holds that the Affordable Care Act authorized federal tax credits for eligible Americans living not only in states with their own exchanges but also in the 34 states with federal marketplaces. It staved off a major political showdown and a mad scramble in states that would have needed to act to prevent millions from losing health care coverage.
“Five years ago, after nearly a century of talk, decades of trying, a year of bipartisan debate, we finally declared that in America, health care is not a privilege for a few but a right for all,” Obama said from the White House. “The Affordable Care Act is here to stay”
The 8 Best Lines From the Supreme Court Decision That Saved Obamacare
Chief Justice John Roberts tells the plaintiffs he’s not playing word games.
(Mother Jones) The members of Congress may occasionally be sloppy boobs, but we must defer to them when their intent is clear. That’s the main message of the Supreme Court decision handed down this morning that protects Obamacare. The issue at hand was whether what was essentially a typo—a poorly worded sentence in the law—could be used to deny health care insurance subsidies to millions of Americans in states where the federal government (not the state government) set up an exchange in which consumers can purchase insurance. Writing for the majority in the 6-3 decision, Chief Justice John Roberts told the conservative plaintiffs who had tried to exploit a drafting error (which mentioned only exchanges created by states and not the federal government) to get out of town.
After its big ruling upholding Affordable Care Act subsidies on Thursday, the Supreme Court is scheduled to issue more decisions Friday, with four major cases remaining on the docket, and could also release opinions next week. Still to be decided is the gay-marriage case, along with closely watched rulings involving congressional redistricting and power plant emissions. Here’s a list of the remaining cases.
Conservatives Lose Two Big Supreme Court Cases, But Maybe They Should Have
(Forbes) The U.S. Supreme Court today delivered two defeats to conservative activists on two causes they hold dear: Overturning the Affordable Care Act and rolling back the disparate-impact theory of discrimination.
The 2-0 loss may have been all the more disconcerting for conservatives because it came at the hands of two of their own, Chief Justice John Roberts and Justice Anthony Kennedy. But both decisions were well within the mainstream of judicial interpretation of statutes and neither disrupted the status quo, meaning business, on balance, came out the winner.
22 June
Supreme Court Undermines Price-Support Programs With Ruling For Raisin Farmer
A farmer who refused to hand over half his raisin crop to the government as part of a New Deal-era price-support program won a major victory before the U.S. Supreme Court, as it decided the constitutional prohibition against uncompensated seizures extends to agricultural produce.
The court’s decision in Horne v. Dept. of Agriculture could threaten schemes that require farmers to turn their crops over to the government in exchange for the promise of greater price stability. However, as Justice Sonia Sotomayor noted in dissent, the government can still regulate production by enforcing quotas that prohibit farmers from selling their crop to anyone. …
The government and Sotomayor argued the Hornes weren’t really being asked to part with their property, because they could keep the residual value in the raisins and get valuable price support from the program. But Chief Justice John Roberts,  writing for a conservative majority, said that reasoning glosses over the essential fact that the government takes title to the raisins and determines the ultimate value of the crop.
18 June
Odd Alignments At Supreme Court As Thomas Joins Liberals, Scalia Attacks Alito
In a rush of end-of-term decisions, the U.S. Supreme Court displayed some surprising alignments, with conservative Justice Clarence Thomas joining the court’s liberals in a decision rejecting Confederate license plates in Texas and Antonin Scalia unleashing his well-known scorn on fellow conservative Samuel Alito for supposedly weakening the constitutional right of defendants to confront their accusers.
4 May
James Heffernan: Chief Justice Roberts Tells Politicians to Serve Their Donors
(HuffPost) As Paul Blumenthal has just noted on this site, Chief Justice John Roberts has now come within an inch of saying that politicians must do the bidding of their biggest donors.
Distinguishing politicians from judges last Wednesday in his opinion for the majority in Williams-Yulee vs. Florida bar, Roberts writes that politicians “are expected to be appropriately responsive to the preferences of their supporters. Indeed, such ‘responsiveness is key to the very concept of self-governance through elected officials.'”
As Blumenthal explains, Roberts here quotes from his own majority opinion in the 2014 case of McCutcheon v. Federal Election Commission, which struck down aggregate campaign contribution limits. … Roberts now says that politicians are expected to favor the wishes of their donors–not to serve the needs of their constituents as a whole. And if Roberts believes that politicians must favor the wishes of their supporters, may we not infer that he also thinks the value of their favors should depend on how much their supporters give? At best, Roberts stops just one inch short of saying so.

2014

US Supreme Court justices 201229 September
Justices Gather to Set Agenda
(NYT First Draft – morning newsletter) In an ornate conference room at the Supreme Court building on Monday, a proceeding shrouded in secrecy begins that could shape the court’s new term and the future of same-sex marriage in the United States. … on Monday, the nine justices will wade through the more than 1,000 appeals that have piled up during the summer recess, and decide which ones to consider this term.
The process is steeped in tradition. Only the justices are allowed inside the room, which has deep wood paneling and two sets of doors. The most junior member of the court – currently Justice Elena Kagan – must answer the door, if, for example, a law clerk delivers a case file.
“They will knock on the outer door, and then I have to hop up and open the inner door,” Justice Kagan explained this month. “Truly, if I don’t do it, nobody will.”
This year’s pile includes some high-profile appeals, including seven petitions from five states urging the justices to decide, once and for all, whether the Constitution guarantees a right to same-sex marriage.

How The Supreme Court Could Blow Up President Obama’s Last Two Years In Office
(Think Progress) In the fairly likely event that Republicans regain control of the Senate next year, they will suddenly enjoy a power they haven’t held since Senate Democrats invoked the so-called nuclear opinion last November — the power to block every single one of President Obama’s nominees to any Senate-confirmed job. That is, at least, if the Supreme Court gives them this power. On Monday, the justices will hear a case that could effectively shut down the president’s power to make recess appointments, potentially cutting off the primary avenue a president has to push back against a Senate that refuses to confirm anyone to key government jobs.
When the justices announced that they would hear National Labor Relations Board v. Noel Canning, it had the potential to nuke literally three generations worth of protections for workers and unions. The NLRB is the only agency empowered to enforce many of the rights to organize and collectively bargain that workers enjoy in the workplace, and Senate Republicans attempted to effectively shut down this agency by refusing to confirm anyone to it. Thus, if President Obama’s recess appointees to the NLRB were invalidated, the specific question at issue in Noel Canning, America would suddenly find itself without a body of labor law that’s existed since the Roosevelt Administration.
That immediate crisis has passed. In July, Senate Republicans agreed to a confirm a full slate of NLRB nominees in a failed effort to ward of a change to the Senate rules. The larger question of whether President Obama still has a recess appointments power, however, remains a live issue in Noel Canning. (8 January 2014)

31 July
Ruth Bader Ginsburg: Male Justices Don’t Understand What Hobby Lobby Meant For Women
9 July
Democrats Fast-Track Bill To Override Hobby Lobby Decision
(HuffPost) Senate Democrats are expediting legislation that would override the Supreme Court’s decision in the Hobby Lobby case and compel for-profit employers to cover the full range of contraception for their employees, as required by the Affordable Care Act.
The bill, which is co-authored by Sens. Patty Murray (D-Wash.) and Mark Udall (D-Colo.), would ban for-profit companies from refusing to cover any federally guaranteed health benefits for religious reasons, including all 20 forms of contraception detailed in the Affordable Care Act. It would preserve the contraception mandate’s current exemption for churches and accommodation for non-profit religious organizations, such as certain hospitals and schools.
3 July
U.S. Supreme Court Hobby Lobby’s Not Alone: Here are 4 of the High Court’s Biggest Science Blunders
(Mother Jones) The decision in Hobby Lobby wasn’t the first case in which the court or one of its justices flubbed the facts.
1. When the court decided that companies can’t patent genes
2. When Scalia said facts don’t matter because judges are inherently biased:
3. When the court shrugged over whether preventing a pregnancy is the same thing as getting an abortion
Supreme Court: Companies Can’t Be Required to Pay for Birth Control

A big win for Hobby Lobby and Conestoga Wood in today’s case on the Affordable Care Act contraception mandate
(The Atlantic) In Burwell v. Hobby Lobby, the justices found that “closely held” private businesses have the same rights under the 1993 Religious Freedom Restoration Act as non-profit organizations.
This case is one of a slew of objections to the so-called “contraception mandate” in the Affordable Care Act, which initially required that organizations bigger than a certain size include coverage of roughly two dozen kinds of birth control in their insurance plans. Now, it looks like there will be even more complexity in how that “mandate” gets carried out: The Court has accepted that the law may come into conflict with certain religious beliefs. Since there are other, less burdensome ways for the government to accomplish its goal of making sure women have access to contraception, then these companies have a right to some sort of accommodation from the law. (Mother Jones) The 8 Best Lines From Ginsburg’s Dissent on the Hobby Lobby Contraception Decision (The Atlantic) What’s So Controversial About the Contraceptives in Hobby Lobby — Surprise: The Supreme Court hasn’t defined “conception” in a new ruling on religious freedom.
Interesting footnote to the case.
(Mother Jones) Hobby Lobby’s Hypocrisy: The Company’s Retirement Plan Invests in Contraception Manufacturers — When Hobby Lobby filed its case against Obamacare’s contraception mandate, its retirement plan had more than $73 million invested in funds with stakes in contraception makers.
Supreme Court: Partial Public Employees Can’t Be Required To Contribute To Unions
(HuffPost) In a setback for organized labor that could have been much worse, the Supreme Court ruled on Monday that certain government-funded employees cannot be required to pay fees to the public sector unions that represent them, a decision that could hurt some unions financially.
The 5-4 ruling in Harris v. Quinn, written by Justice Samuel Alito for the majority, was not the worst-case scenario that unions had feared. But it does deliver a blow to major unions that have organized Medicaid-funded home care workers and other workers who aren’t “full-fledged public employees” in the majority’s eyes.
Such workers, the court ruled, cannot be compelled to pay “agency fees.” Because unions have to represent all the employees in a particular bargaining unit, they commonly seek requirements in their contracts that all workers, whether union members or not, pay agency fees to help cover the administrative costs of bargaining. This avoids what unions commonly refer to as “freeloading” by non-union employees.
26 June
Supreme Court Rebukes Obama on Right of Appointment
(NYT) The Supreme Court issued a unanimous rebuke to President Obama on Thursday, saying he had overreached in issuing recess appointments during brief breaks in the Senate’s work.
Mr. Obama violated the Constitution in 2012, the justices said, by appointing officials to the National Labor Relations Board during a break in the Senate’s work when the chamber was convening every three days in short pro forma sessions in which no business was conducted.
22 April
Sonia Sotomayor Delivers Blistering Dissent Against Affirmative Action Ban
(HuffPost) The Supreme Court upheld Michigan’s ban on affirmative action Tuesday, but not without a blistering dissent from Justice Sonia Sotomayor.
Sotomayor said the decision infringed upon groups’ rights by allowing Michigan voters to change “the basic rules of the political process … in a manner that uniquely disadvantaged racial minorities.”
“In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination,” Sotomayor added. “This refusal to accept the stark reality that race matters is regrettable. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.”
21 April
John Paul Stevens Says Ruth Bader Ginsburg Sought His Advice On Retirement
(HuffPost) Exactly when Ginsburg, 81, will retire from the Court has been a matter of much speculation. Some Democrats have called on her to step down so that President Barack Obama can appoint her successor, thus precluding the possibility of a Republican choosing her replacement. But Ginsburg, the oldest justice on the Court, has vowed to resist the pressure to leave her post. Justices should ignore politics and work until they are no longer equipped to do the job, she said last year.
2 April
The Supreme Court Has Struck Down Overall Campaign Contribution Limits
The 5-4 ruling in McCutcheon v. Federal Election Commission was penned by Chief Justice John Roberts and joined by justices Anthony Kennedy, Samuel Alito and Antonin Scalia. The decision relies heavily on the assertion in the 2010 Citizens United ruling that influence and access are not a corruption concern.
Justice Clarence Thomas wrote a separate opinion that agreed to strike the aggregate limits, but also called for an end to the entire campaign finance reform system.
The victory for the Alabama businessman and major Republican Party donor Shaun McCutcheon, who was joined by the Republican National Committee in his challenge, means that a single donor will soon be able to contribute millions of hard dollars — in limited contributions — to political parties, candidates and political action committees.
21 February
Clarence Thomas’s Disgraceful Silence
(The New Yorker) As of this Saturday, February 22nd, eight years will have passed since Clarence Thomas last asked a question during a Supreme Court oral argument. His behavior on the bench has gone from curious to bizarre to downright embarrassing, for himself and for the institution he represents.

Background: Ranking the Politics of Supreme Court Justices (May 2008)
Four of the five most conservative justices since 1937 are on the bench today
Just how conservative is the Supreme Court, anyway? It’s a question that has dogged constitutional scholars for years, as they’ve tried to parse the opaque language and muddled writings of judges moving through the confirmation process. Today’s court, headed by John Roberts with seven justices appointed by Republican presidents, is generally considered more conservative than the Supreme Court of the 1950s, for example, when Earl Warren oversaw its unanimous decision in Brown v. Board of Education. But it’s hard to compare the current court—and today’s justices—with, say, the Burger court of the 1970s, which, with six Republican-appointed justices, decided Roe v. Wade. See also: After 34 Years, a Plainspoken Justice Gets Louder A theme ran through [Justice Stevens’] recent opinions: that the Supreme Court had lost touch with fundamental notions of fair play.

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2013

7 October
Justice Scalia Is More Conservative Than You Think, And Further To The Right Than He’s Ever Been
(Think Progress) A lot of headlines can be found in Jennifer Senior’s remarkable interview with Justice Antonin Scalia — The interview paints Scalia as an anachronism even among anachronisms. He’s Archie Bunker in a less comfy chair. … it is easy to miss what is probably the most significant part of the interview — he repudiates his own moderation from a quarter a century ago.
11 July
States Push Post-Citizens United Reforms As Washington Stands Still
(HuffPost) Pushback against the Supreme Court’s Citizens United decision keeps growing in the states. Over the first six months of this year, even as campaign finance reforms go nowhere in Congress, five more states have backed resolutions calling for a constitutional amendment to overturn the 2010 ruling. That brings the total number of states supporting an amendment to 16.
“Amending the Constitution is hard — and it should be,” said Sen. Tom Udall (D-N.M.). … Sixteen states, including my home state of New Mexico, have called on Congress to overturn Citizens United and send them an amendment for ratification. That’s more than 30 percent of the U.S.”
Fighting back against the flood of electoral spending released by the Citizens United decision, lawmakers and policymakers have also worked to change state-level campaign finance laws. They have expanded disclosure requirements to reveal “dark money” and, much to the dismay of reform advocates, increased the sums that political candidates can raise for their own campaigns. At least seven states have made changes so far this year.
These efforts are driven by both public opinion — 62 percent of Americans oppose the Citizens United ruling — and the increasing pressures faced by candidates as they see independent spending flooding into their elections.
28 June
Justices Wrap Up Term With Blockbuster Week of Supreme Court Decisions
(PBS Newshour) In the final week of the term, the Supreme Court rolled out a series of highly-anticipated decisions, ranging from affirmative action to same-sex marriage. Margaret Warner talks with Marcia Coyle of The National Law Journal, author of “The Roberts Court,” to sort through the key rulings. (video and transcript)
The Supreme Court Takes With One Hand, Gives With the Other
(HuffPost) It’s been a bittersweet week in the Supreme Court. On the one hand, the Court’s decisions on same-sex marriage left many of us profoundly hopeful, while its voting rights opinion was deeply disappointing. By simultaneously moving in opposite directions on fundamental principles of civil rights, this Court has torn a hole in our political fabric, and once again left the nation part equal and part unequal.
Just weeks after a leader of the Texas Tea Party admitted, “I’m going to be real honest with you, the Republican Party doesn’t want black people to vote if they’re going to vote 9-to-1 for Democrats,” the Court has turned a blind eye to the sad reality of modern political life and done inestimable damage to the cause of justice in America, while no doubt bringing great comfort to red-state Republicans who no longer will be inconvenienced by the key provisions of the Voting Rights Act.
Voting Rights Act Still Critical in 2013: Why Congress Must Restore It
By Ian Vandewalker, Counsel, Democracy Program, Brennan Center for Justice
The Voting Rights Act was passed in 1965 to correct the racial discrimination prevalent in many states’ voting regimes. In the decades since, the Act has been updated and reauthorized, most recently in 2006 by overwhelming majorities in both houses of Congress. Just last year, the Section 5 preclearance process enabled federal authorities to block or weaken several laws that would have made it harder for minorities to vote in states like Florida, South Carolina, and Texas.
Opponents of the Voting Rights Act argue that it is no longer necessary, that the nation has moved past its legacy of discrimination. But there’s plenty of evidence that discrimination is still part of American life, from racially disproportionate enforcement of drug laws to shockingly racist reactions to a cereal ad featuring an interracial couple.
A recent report by the Brennan Center explains the many ways that minority voting rights will be threatened by the loss of Section 5. For instance, the preclearance process can deter policies that would create obstacles for minority voters from being enacted in the first place. To describe just one of several examples, in 2012, Decatur, Alabama submitted a plan for federal approval that would have diluted the only majority-minority city council district in the city. After the Justice Department requested more information, the city abandoned the plan, assuming that the expected harm to minority voters would keep it from being precleared. Without Section 5 in effect, this deterrent is gone.
26 June
Supreme Court strikes down DOMA, declines to rule on Prop. 8
(Politico) By overturning the 1996 Defense of Marriage Act and turning Proposition 8 back to the state courts, the Supreme Court sent a strong message on Wednesday, the final day of its current term: exactly one decade to the day after the court’s pivotal Lawrence v. Texas ruling overturned state sodomy laws, same-sex marriage has reached a critical threshold of widespread acceptance.
The court handed gay rights advocates a historic pair of 5-4 wins: Majorities overturned the federal law that barred marriage-related benefits for same-sex couples. And they left intact a ruling against a measure that would ban those unions altogether in California.
The court’s decision on Prop. 8 scrambled its usual ideological lines, finding that proponents of California’s voter-approved ban on same-sex marriage lacked jurisdiction to appeal lower court rulings that held the measure unconstitutional.
President Obama confronts George W. Bush court on voting, gay rights cases
(Politico) President Barack Obama faced an uncomfortable truth Tuesday: He was powerless to stop George W. Bush’s Supreme Court from eviscerating the most consequential civil rights law of the past half-century.
The constitutional law professor sat by helplessly — “deeply disappointed” — as Chief Justice John Roberts wrote a 5-4 majority opinion that tore down one section of the Voting Rights Act and effectively killed another. Obama, who voted against Roberts in 2005, could see it coming. Everyone in Washington could.
The historic pairing of Obama and Roberts — two singular talents of their respective parties at this moment in time — sets them up to be opposing forces on some of the most important issues of the day, long after Obama leaves office and the Roberts court lives on. That clash on Tuesday took the form of Roberts striking down key parts of a law central to the civil rights movement — perhaps doing more in one opinion to change civil rights protections than Obama could do singlehandedly as president to advance them, even by his presence as the nation’s first black president.
Supreme Court 2013: The Year in Review
Entry 14: John Roberts’ stealthy plan to destroy the Voting Rights Act
(Slate) Chief Justice John Roberts’ opinion on the Voting Rights Act takes away one of the most important tools for ensuring minority rights that Congress has ever created. Yet the opinion sounds respectful and modest. This is the genius of John Roberts. He makes big steps to the right look like small ones. He is the master of conservative stealth, a chief justice who eschews flair and drama. In that sense, he’s the anti-Scalia—no flame throwing, thank you. Just getting the job done.
25 June
So the Voting Rights Act Is Gutted—What Can Protect Minority Voters Now?
The Supreme Court’s decision may have been misguided, but automatic voter registration would be majorly mitigating. Why aren’t Democrats pushing it?
(Atlantic online) Tuesday’s Supreme Court ruling in Shelby County v. Holder effectively cripples the Voting Rights Act. It flies in the face of a mountain of evidence of ongoing disenfranchisement — from voter-ID laws to intimidation and long lines at the polls – and the fact that Republican legislators continue to push laws designed to disenfranchise targeted communities. The conservative majority’s tortured logic relied on statistical evidence of reduced inequities between whites and minorities in voter-registration rates, but as Justice Ruth Bader Ginsburg noted in her dissent, voting discrimination has declined because of the effectiveness of the Voting Rights Acts. Without these protections to derail attempts to roll back the clock, new setbacks are inevitable. But, as has been said before of the Roberts Court, “Five votes beats a reason any day.”
3 June
Supreme Court: DNA Samples Can Be Taken From Arrestees Without Warrantan intriguing split among the justices with Scalia siding with the three (liberal) women.
(HuffPost) A sharply divided Supreme Court on Monday cleared the way for police to take a DNA swab from anyone they arrest for a serious crime, endorsing a practice now followed by more than half the states as well as the federal government.
The justices differed strikingly on how big a step that was.
“Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” Justice Anthony Kennedy wrote for the court’s five-justice majority. The ruling backed a Maryland law allowing DNA swabbing of people arrested for serious crimes.
But the four dissenting justices said the court was allowing a major change in police powers, with conservative Justice Antonin Scalia predicting the limitation to “serious” crimes would not last.
27 May
Supreme Court Justices Could Be Influenced By New Gay Marriage Laws
The court is expected to rule by late June in two cases involving same-sex marriage.
(HuffPost) Three U.S. states and three countries have approved same-sex unions just in the two months since the Supreme Court heard arguments over gay marriage, raising questions about how the developments might affect the justices’ consideration of the issue.
In particular, close observers on both sides of the gay marriage divide are wondering whether Justice Anthony Kennedy’s view could be decisive since he often has been the swing vote on the high court.
In earlier cases on gay rights and the death penalty, Kennedy has cited the importance of changing practices, both nationally and around the world.
12 May
Supreme Court Saw Only One African-American Lawyer In Last 75 Hours Of Arguments
In an era when three women, a Hispanic and an African-American sit on the court and white men constitute a bare majority of the nine justices, the court is more diverse than the lawyers who argue before it.
The numbers were marginally better for Hispanic lawyers. Four of them argued for a total of 1 hour, 45 minutes. Women were better represented, accounting for just over 17 percent of the arguments before the justices.
The arguments that took place from October to April were presented overwhelmingly by white men. Women and minority lawyers whose clients’ cases were heard by the court were far more likely to represent governments or be part of public-interest law firms than in private practice, where paychecks are much larger.
26 March
The Onion:  Supreme Court On Gay Marriage: ‘Sure, Who Cares’  – if only …
Top U.S. court may avoid ruling on same-sex marriage ban
Today’s case focuses on California’s Proposition 8
(CBC) The U.S. Supreme Court is suggesting it could find a way out of the case over California’s ban on same-sex marriage without issuing a major national ruling on whether gays and lesbians have a right to marry, an issue one justice said was newer than cellphones and the internet.
Several justices, including some liberals who seemed open to same-sex marriage, raised doubts Tuesday that the case was properly before them. Justice Anthony Kennedy, the potentially decisive vote on a closely divided court, suggested that the court could dismiss the case with no ruling at all.
Such an outcome would almost certainly allow gay marriages to resume in California but would have no impact elsewhere.
27 February
Voting Rights Act Heads Before Supreme Court In Shelby Case
(HuffPost) The most potent weapon in fighting discrimination at the ballot box comes before the Supreme Court in a case that weighs the nation’s enormous progress in civil rights against the need to continue to protect minority voters.
The justices are hearing arguments Wednesday in a challenge to the part of the Voting Rights Act that forces places with a history of discrimination, mainly in the Deep South, to get approval before they make any change in the way elections are held.
The lawsuit from Shelby County, Ala., near Birmingham, says the “dire local conditions” that once justified strict federal oversight of elections no longer exist.
Justices Turn Back Challenge to Broader U.S. Eavesdropping
(NYT) The U.S. Supreme Court rejected a challenge by journalists and human rights activists of a federal law broadening the government’s ability to monitor international phone calls and emails.
Case on Police Collecting DNA From Criminals Reaches Supreme Court
(PBS Newshour) A man was arrested in Maryland and police officers took a DNA sample that connected him to an unrelated crime. The Supreme Court is now weighing whether the Fourth Amendment should protect him from that kind of search. Ray Suarez gets analysis and context on the case from Marcia Coyle of the National Law Journal.
19 February
Supreme Court To Hear Campaign Finance Donation Limit Challenge
(HuffPost) The Supreme Court will hear a challenge to campaign finance laws limiting how much an individual can give to political campaigns.
The justices on Tuesday decided to hear an appeal from Shaun McCutcheon of Alabama and the Republican National Committee. They are arguing that it’s unconstitutional to stop a donor from giving more than $46,200 to political candidates and $70,800 to political committees and PACs.
McCutcheon says he accepts that he can only give $2,500 to a single candidate but says he should be able to give that amount to as many GOP candidates as he wants.
The U.S. Court of Appeals for the District of Columbia upheld the limits, but the high court decided to review that decision.

2012

26 July
In Bipartisan Vote, Massachusetts Senate Calls on Congress to Enact Constitutional Amendment Reversing Citizens United
(Coffee Party) Cities and towns across the nation have voted on similar measures. In Massachusetts, 68 communities have voted in favor of a Constitutional Amendment including Boston, Springfield and Worcester. If a similar resolution is passed by the House, Massachusetts will join the state legislatures in California, Hawaii, Maryland, New Mexico, Rhode Island, and Vermont in voicing their states’ opposition to the decision and support for a Constitutional Amendment to address its ramifications.
3 July
Roberts wrote both Obamacare opinions
A Court source tells Salon the chief justice wrote the majority opinion and much of the dissent in the ACA case
(Salon.com) My source insists that “most of the material in the first three quarters of the joint dissent was drafted in Chief Justice Roberts’ chambers in April and May.” Only the last portion of what eventually became the joint dissent was drafted without any participation by the chief justice.
29 June
David Jones in the Ottawa Citizen: Americans Value Choice
Before examining Thursday’s Supreme Court action, some observations are of value:
At its best, U.S. health care is exceptional…. But at worst, there are terrible societal problems: insurance denied for “pre-existing conditions”; premiums boosted to out-of-sight levels for individuals with expensive problems; insurance “capped” with lifetime limits.
And always it is very expensive, absorbing 19.6 per cent of U.S. GNP.

More on SCOTUS from Slate: Check out what our legal experts have to say about the ACA  decision in our “Breakfast Table” dialogue. Darshak Sanghavi explains how the SCOTUS ACA decision will make it harder, not easier, to get health care to poor Americans.  Tom Scocca asks whether John Roberts just gutted the Commerce Clause. John Dickerson looks at how the decision will affect the campaign, and Matt Yglesias asks if a President Romney really could overturn Obamacare.

Supreme Court upholds healthcare law in Obama triumph

(Reuters) – The U.S. Supreme Court upheld President Barack Obama’s healthcare law on Thursday in an election-year triumph for him and fellow Democrats and a stinging setback for Republican opponents of the most sweeping overhaul of the unwieldy U.S. healthcare system in about a half century.
In a 5-4 ruling based on the power of Congress to impose taxes, the court preserved the law’s “individual mandate” requiring that most Americans obtain health insurance by 2014 or pay a tax. (WSJ) Supreme Court Upholds Mandate as Tax ; (CSM) Obama health-care law: Supreme Court upholds it in entirety ; (Politico) SCOTUS ruling shakes up 2012 race; and from the other side of the political spectrum:  Fox News quotes John Boehner “”Today’s ruling underscores the urgency of repealing this harmful law in its entirety,” House Speaker John Boehner said in a statement. “Republicans stand ready to work with a president who will listen to the people and will not repeat the mistakes that gave our country ObamaCare.”
Why Did Roberts Do It? To save the court. or The chief justice’s canny move to uphold the Affordable Care Act while gutting the Commerce Clause.
25 June
The almost-ever helpful Economist supplies us with ample background on the Supreme Court ruling on “Obamacare”, which is now expected to be handed down on Thursday.
To prepare you for the decision, here is a selection of articles and blog posts dealing with the case.
Our health-care correspondent sums up the questions before the court and the arguments being made, and says the case could transform the power of the federal government. M.S. explains why the slippery-slope arguments against Obamacare don’t make much sense. W.W. says forced business between taxpayers and private companies is forced business whether or not government touches the money. Donald Berwick, the former administrator of Centers of Medicare and Medicaid Services, explains what might happen if some or all of Obamacare is repealed. Our correspondent adds to those thoughts. And Lexington says that even if the Supreme Court strikes down Obamacare, there could be a silver lining for the president.

State Corporate Campaign Spending Limits Rejected
The Supreme Court on Monday turned away a plea to revisit its 2-year-old campaign finance decision in the Citizens United case and instead struck down a Montana law limiting corporate campaign spending.
The same five conservative justices in the Citizens United majority that freed corporations and labor unions to spend unlimited amounts in federal elections joined Monday to reverse a Montana court ruling upholding the state’s century-old law. The four liberal justices dissented.
Supreme Court mostly rejects Arizona immigration law; gov says ‘heart’ remains
(CNN) In a decision sure to ripple across the political landscape in a presidential election year, the court’s 5-3 ruling upheld the authority of the federal government to set immigration policy and laws.
“The national government has significant power to regulate immigration,” Justice Anthony Kennedy wrote in the majority opinion. “Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermined federal law.”
Supreme Court Year in Review
Entry 1: Could the court’s conservatives split the difference on Obamacare?
(Slate) At this point, a compromise-prone majority would have a couple of choices. The first would be to accept Solicitor General Donald Verrilli’s astute suggestion that the court avoid the constitutional issue by reading the law as giving a real choice to citizens: Have insurance or pay a modest penalty. Either way is compliance, not lawbreaking, the solicitor general says. Or the court could decide the text does not permit that reading but the Constitution compels it. The provision stating that everyone must obtain coverage or be a lawbreaker is unconstitutional, but the linked provision imposing modest financial incentives to have coverage is acceptable and can stand. (I advanced this thought at a recent session of the American Constitution Society and soon learned that I was not the first or only person to make this suggestion
Entry 2: What happens when the court itself becomes the headline?
13 June
Why Justice Kennedy Is Just Like America
He may seem mercurial, but he is actually the original independent swing-state voter.
(Slate) … of all the current Supreme Court justices, he is in fact most representative of that elusive Every American. Kennedy almost perfectly fits the profile of the mysterious and alluring swing-voter, that vanishing Independent whose vote is truly in play. He is quite conservative, but he exhibits brief moments of progressivism on issues that raise questions of basic justice and dignity—from gay rights to prisoner abuse. Like most Americans, he’s not as conservative as the other four conservatives on the court. Nor, like most Americans, is he as liberal as the four liberals. He tries, as the Time piece highlights, to be open-minded in ways that many of us are not. He doesn’t hate government, although he doesn’t care for it much either. He can be moved by personal narrative. He cares what the rest of the world thinks of this country. And because he is, in a sense, the last of the true swing voters, everyone is always furious at him when he acts in a way that they don’t expect.
11 June
The Scales of Intimidation
Does the Supreme Court feel threatened, intimidated, or harassed by the press?
(Slate) … when individuals make genuinely threatening claims about the courts—including Newt Gingrich’s comments about subpoenaing judges who come to unpopular conclusions or shutting down an entire federal appeals court—few on the political right accused him of harassment or intimidation. It’s strange to imagine that John Roberts would be more threatened by the observations of a George Washington University law professor than by claims that the next president plans to curtail the jurisdiction of Article III courts.*
Putting aside the blame and accusations on either side, the more important question is whether the justices themselves really do feel victimized, harassed, and threatened by newspaper reports of their conduct, special scrutiny of their extracurricular activities, and the reporting of it in the national media. Because it appears that when enough justices believe that they themselves are being assailed and personally threatened by the press, the impact can come to affect legal doctrine
8 June
Supreme court will decide healthcare law with politics, Americans believe
A poll reveals that public confidence in the ability of the court to judge on the merits of the law in this and other cases is low(The Guardian) Most Americans believe the supreme court’s judges will decide the constitutionality of the president’s healthcare reforms based on their personal and political views and not the law.
The findings, in a New York Times poll , show that public confidence in the court has continued to decline amid the judicial battles over health reforms and a controversial immigration law. Three-quarters of Americans say supreme court decisions are influenced by the judges’ political or personal views.
The president has already laid the ground for a political fight if the decision on health reforms goes against him by warning that it would be wrong for the “unelected” supreme court to take the “unprecedented and extraordinary” step of striking down the legislation on the grounds that the requirement for most Americans to buy private health insurance is unconstitutional.
21 May
Money Unlimited
How Chief Justice John Roberts orchestrated the Citizens United decision.
by Jeffrey Toobin
(The New Yorker) Supreme Court cases become landmarks in different ways. Lawrence v. Texas, the 2003 gay-rights decision striking down anti-sodomy laws, began with a trivial contretemps in an apartment building just outside Houston. On the other hand, the importance of the constitutional challenge to the Affordable Care Act, the signature domestic achievement of the Obama Presidency, was apparent as soon as it was filed. (A decision is expected in June.) The result in Bush v. Gore was important, but the reasoning turned out to be perishable; the decision has not been cited again by the Justices.
In one sense, the story of the Citizens United case goes back more than a hundred years. It begins in the Gilded Age, when the Supreme Court barred most attempts by the government to ameliorate the harsh effects of market forces. In that era, the Court said, for the first time, that corporations, like people, have constitutional rights. The Progressive Era, which followed, saw the development of activist government and the first major efforts to limit the impact of money in politics. Since then, the sides in the continuing battle have remained more or less the same: progressives (or liberals) vs. conservatives, Democrats vs. Republicans, regulators vs. libertarians. One side has favored government rules to limit the influence of the moneyed in political campaigns; the other has supported a freer market, allowing individuals and corporations to contribute as they see fit. Citizens United marked another round in this contest.
In a different way, though, Citizens United is a distinctive product of the Roberts Court. The decision followed a lengthy and bitter behind-the-scenes struggle among the Justices that produced both secret unpublished opinions and a rare reargument of a case. The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. It was once liberals who were associated with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched contempt for Congress with a disdain for many of the Court’s own precedents. When the Court announced its final ruling on Citizens United, on January 21, 2010, the vote was five to four and the majority opinion was written by Anthony Kennedy. Above all, though, the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.
30 March
A Court of Radicals
If the justices strike down Obamacare, it may have grave political implications for the court itself
(Slate) … The smart money before the argument was on an 8-1 upholding of Obamacare. A 5-4 decision striking the law down for exceeding congressional power will reveal a “real” Supreme Court unafraid of ignoring well-established legal precedent in a favor of its own ideological preferences: It is an activist conservative court that has already opened up the corporate money spigot in Citizens United, that favors “states’ rights” over national solutions to national problems, that could soon bar affirmative action and strike down the Voting Rights Act, which has expanded gun rights and will further weaken reproductive rights, and that has been a friend to business interests above the interests of consumers, minorities, women, and the disabled.
First, for the first time a Democratic candidate may be able to run for president against the Supreme Court. Conservatives have done this in the past, railing against the expansion of rights by the Warren Court, but Democrats have been much less successful. Now the strategy could work. As I explained in a 2010 column, by 2016, Justice Scalia will turn 80 and Justice Kennedy will turn 78. If a Republican wins in 2012, Scalia and Kennedy will probably retire before the end of that first term. That would give the new Republican president the chance to entrench the five-justice Republican majority for decades—and to cement it, by replacing Kennedy with a wholly reliable right-wing vote.
The second implication is related to the first: The ever-nasty confirmation battles over Supreme Court justices are likely to get even more acrimonious. No one will be able to pretend that a Supreme Court justice is merely an umpire calling balls and strikes, and it will become more legitimate for senators to expressly take ideology into account when considering whether or not to confirm someone for the high bench. We could well see senators become willing to filibuster Supreme Court nominees for ideological reasons the way they have filibustered lower court judges. That could lead to vacancies on the court, and the court becoming further mired in a partisan morass.
The third and final political implication is that the Court’s legitimacy could suffer in ways which we have never seen. It is true that even Bush v. Gore—the 5-4 decision determining that George W. Bush rather than Al Gore would become president in 2000—did not cause long term damage to the court’s reputation in the eyes of the public. But things are different now, because of the partisan realignment of the Supreme Court.
29 March
How To Defend Obamacare
(Slate) Solicitor General Donald Verrilli was grilled by the Supreme Court’s conservatives. Here is what he should have said.
By Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale and author of America’s Constitution: A Biography.
26 March
Supreme court justices hear arguments as healthcare reform showdown begins
(The Guardian) First day of US supreme court hearings on ‘Obamacare’ mix dense legal arguments with pointed questioning from justices
14 March
Two Cheers For Our Politically Corrupt Supreme Court…
By Thomas de Zengotita, contributing editor at Harper’s Magazine
(HuffPost) Why do I say that? I don’t mean they are actually on the take. Too Third World. But they are fundamentally corrupt insofar as they tweak every decision they make that bears on politics in favor of the Republican party. That was first made obvious with the Rehnquist Court’s 2000 Gore vs Bush Florida decision. A more recent example is the Texas redistricting decision in January 2012. But — the one I am getting to love more and more with each passing primary — there’s also the Citizens United case of January 2010. The “Justices” decided (5-4, natch) that there’s no limit on what individual gazillionaires can contribute to political committees supporting particular candidates. Free speech. But expensive too. Hmmm…
25 January
The Political and the Personal
What the Supreme Court can learn from Gabby Giffords and Jeff Flake.
(Slate) Just as glimpses of occasional acts of humanity can do so much to restore public confidence in Congress, acknowledging actual human failings among the justices might paradoxically restore some confidence in the court.

2011

29 June
Free speech, business win term’s battles on high court
Class actions, protest curbs hit roadblocks
(Boston Globe) The Supreme Court term that ended Monday was marked by accomplishment and anticipation. The court continued its work on two signature projects of Chief Justice John Roberts: defending free speech and curbing big lawsuits. And it dropped occasional hints about the blockbusters on the horizon.
The First Amendment dominated the term, with the court ruling for funeral protesters, the makers of violent video games, drug marketers, and politicians who decline public financing. The US commitment to free expression, the court said, cuts across politics and commerce, requires tolerance of offensive speech, and forbids the government from stepping in when powerful voices threaten to dominate public debate.
In cases involving the nation’s largest private employer, Wal-Mart, and the nation’s second-largest cellphone company, AT&T Mobility, the court tightened the rules for class actions and made it easier for firms to do away with class actions entirely by using form contracts.
All of the decisions this term were scrutinized for clues about the arc of the Roberts court as it settles into a period of consolidation and awaits a series of colossal cases, notably the challenges to the health care law championed by President Obama. This term was significant, but the next one may include the most important clash between the Supreme Court and a president since the New Deal.
In the just-completed term, the court’s commitment to free speech and its growing business docket sometimes intersected, as in the cases on drug marketing and video games.
Robert Scheer: Yes to Violence, No to Sex
This American life of ours has long been pro-violence and anti-sex, unless the two can be merged so that violence is the dominant theme. The U.S. Supreme Court reaffirmed that historical record on Monday in declaring California’s ban on the sale of violent video games to minors unconstitutional while continuing to deny constitutional protection to purely prurient sexual material for either minors or adults.
The California law that the court struck down prohibited the sale or rental of violent games to minors “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being,” unless the work, taken as a whole, possessed redeeming literary, artistic or social value — qualities that limit censorship of sexually “obscene” material.
The Supreme Court, in essence, said no — “sexually assaulting an image of a human being” is protected speech, but depicting graphic sexual activity that is nonviolent and consensual is not.
27 June
Supreme Court nixes violent video game law
In a ringing endorsement of free speech and new technology, the U.S. Supreme Court this morning struck down a California law that restricts the sale or rental of violent video games to minors. The Supreme Court’s ruling unambiguously reaffirms that video games, which have become increasingly complex and in some cases more expensive to produce than movies, also qualify for full First Amendment protection.
“Even where the protection of children is the object, the constitutional limits on governmental action apply,” Justice Antonin Scalia wrote in the majority opinion (PDF). The ruling was 7-2.

2010

2010 “Person” of the Year: The U.S. Supreme Court
It’s difficult to look beyond the tumult of current events and ask: “what happened this year that will be remembered ten, twenty, or fifty years from now?” However, there was one 2010 event that looms above the others: the Citizens United v. FEC Supreme Court Decision. That decision signifies a new phase of American history — the Corporatist period where multinational corporations have unbridled political influence to systematically and profoundly weaken our democracy.
28 December
Sotomayor Guides Court’s Liberal Wing
Justice Sotomayor has completely dispelled the fear on the left that her background as a prosecutor would align her with the court’s more conservative members on criminal justice issues. And she has displayed a quality — call it what you will — that is alert to the humanity of the people whose cases make their way to the Supreme Court. …  for anyone looking for insight into the justices, there was much more information to be gleaned from another genre of judicial writing. In the last three months, the court has turned down thousands of appeals, almost always without comment. On seven occasions, though, at least one justice had something to say about the court’s decision not to hear a case.
14 December
When the Supreme Court takes up the Obama health-care law ‘mandate’
(CSM) Justice Kennedy will probably be the swing vote on a case concerning the individual mandate. Here is what he may well say against this linchpin of the Obama health-care law.

7 September
Polarization of Supreme Court Is Reflected in Justices’ Clerks

The current Supreme Court justices are much more likely than their predecessors to hire clerks who match their own ideological positions.

26 August
Nine Justices and Ten Commandments
While the politically manipulated controversy over the proposed Islamic center in Lower Manhattan will eventually end, there is one dispute over religious symbolism and identity that remains, apparently, endless. I’m referring to the continuing effort by state and local governments to post the Ten Commandments in public places.
Believe it or not, a familiar Ten Commandments case is now heading back to the Supreme Court.
15 August
A brilliant example of excellent writing on an important issue
Frank Rich: Angels in America
… sometimes over the long term — an obscenely long term in the case of black civil rights — the good guys and women can win real victories. Make no mistake about it: The Proposition 8 trial, Judge Vaughn Walker’s decision and the subsequent reaction to it (as much a non-reaction as anything else) constitute a high point in America’s history-long struggle to live up to its democratic ideals.
Proposition 8 appeal ready for the next step
With a Wednesday deadline looming, all sides have now weighed in with their legal arguments on whether a federal appeals court should clear the way for California to resume same-sex marriages.
In court papers filed just before midnight on Friday, lawyers for the two same-sex couples who challenged Proposition 8 urged the 9th U.S. Circuit Court of Appeals to block enforcement of the same-sex marriage ban while an appeal proceeds of a federal judge’s recent order declaring the law unconstitutional.
5 August
U.S. confirms Elena Kagan as 112th justice
The U.S. Senate confirmed Elena Kagan Thursday as the Supreme Court’s 112th justice and fourth woman, selecting a scholar with a reputation for brilliance, a dry sense of humour and a liberal legal bent.
The vote was 63-37 for President Barack Obama’s nominee to succeed retired Justice John Paul Stevens.
Kagan is not expected to alter the ideological balance of the court, where Stevens was considered a leader of the liberals confronting a usually conservative-leaning court that rules of some of the most divisive issues in American life.
She is the first Supreme Court nominee in nearly 40 years with no experience as a judge, and her swearing-in will mark the first time in history that three women will serve together on the nine-member court, where justices often serve for life.
Elena Kagan and the sharia charge
(The Guardian) While she was dean of Harvard Law, she did in fact help establish a program for the study of Islamic finance. And here’s where, if you’re willing to spend a few minutes looking beyond the headlines, matters get more complicated. It turns out that Islamic finance is deserving of study and different from the finance the rest of us use because the Qu’ran forbids the charging of interest and certain other practices that we all use, so deals have to be structured differently. And in a shrinking global world, it’s worth learning about those things
… Now, if you Google around, you will see any number of howling-at-the-moon blog posts from right-wing sites about how Kagan embraced sharia law at Harvard and how she’s just waiting for the opportune moment to bring it to the Supreme Court. It’s just hysteria and insanity.
And this is where I sometimes get confused. Surely these people know better. Do they know better and not care about the truth? Or, do they not know better? Are they just so freaked out by anything that is unfamiliar to them, anything that unsettles the little cocoon they live in, that they have to label it, name it as a threat, sow distrust of it? Why don’t they just read a few things and learn that Islamic finance raises legitimate questions that people of good will can solve without too much ruckus, as they apparently have up there in nice Minnesota? Or are they so interested in getting political power, and/or in their hatred of liberals, that any handy tool to make liberals seem both weak and frightening (a nice trick, if you think about it) will be put to use toward that end?
I think it’s mostly fear of the unfamiliar, which is one of the central problems of our roiling, global age, dramatically heightened in certain ways by 9-11. But all the above play roles.
A propos the ridiculous charges that Elena Kagan would bring Sharia Law to the Supreme Court, Ron Robertson reminds us that interest in Islamic law is growing within Canada’s legal community. The University of Toronto’s Faculty of Law recently appointed two full-time professors specializing in Islamic law for the first time and other universities are interested in expanding their expertise in the area. McGill’s Institute of Islamic Studies is the home of Wael Hallaq, one of Canada’s foremost experts in Islamic law.
4 August
Marriage Is a Constitutional Right
(NYT Editorial) Until Wednesday, the thousands of same-sex couples who have married did so because a state judge or Legislature allowed them to. The nation’s most fundamental guarantees of freedom, set out in the Constitution, were not part of the equation. That has changed with the historic decision by a federal judge in California, Vaughn Walker, that said his state’s ban on same-sex marriage violated the 14th Amendment’s rights to equal protection and due process of law. … As the case heads toward appeals at the circuit level and probably the Supreme Court, Judge Walker’s opinion will provide a firm legal foundation that will be difficult for appellate judges to assail.
1 July
Republicans Press Kagan on Social Issues at Hearing
Republicans on Wednesday stepped up their pressure on Elena Kagan to defend her decisions involving abortion and the ban on gays and lesbians serving openly in the military – trying to knock her off her stride even as some of them conceded that her confirmation to the Supreme Court appears all but assured.
4 June
In Supreme Court Work, Early Views of Kagan
Hundreds of memoranda written by Ms. Kagan as a law clerk to Justice Thurgood Marshall analyze petitions to the Supreme Court during its 1987-88 term. Those documents, housed at the Library of Congress, constitute a rare paper trail that provides insight into her early legal policy views.
3 June
Justice Souter’s Class
For those who care about the Supreme Court, Justice Souter served up some rich fare: his own vision of the craft of constitutional interpretation and a defense of the need for judges to go beyond the plain text — what he called the “fair-reading model” — and make choices among the competing values embedded in the Constitution. Doing this was neither judicial activism nor “making up the law,” he said; rather, it was the unavoidable “stuff of judging,” and to suppose otherwise was to “egregiously” miss the point of what constitutional law is about.
Text of Justice David Souter’s Harvard Commencement remarks
17 May
Gil Troy: A careerist conundrum of Supreme proportions
(Globe & Mail) Did Elena Kagan somehow lose her voice and soul while climbing her way to the top?
15 May
Jason Linkins — Pat Buchanan: Too Many Jews On The Supreme Court
Pat Buchanan has counted up the Jews on the Supreme Court (no doubt with the help of current Bob McDonnell crony/former Nixon White House “Jew-counter” Fred Malek) and has discovered that there is just not enough Protestantism on the Supreme Court, thus continuing America’s rich tradition of only letting Protestants do just about everything else in American society.
11 May
Thurgood Marshall, Elena Kagan, and Our Constitution Today
(HuffPost) Doug Kendall: Before President Obama even finished announcing Elena Kagan as his Supreme Court nominee, the Republican National Committee was up with an attack memo questioning Kagan’s commitment to our Constitution, asking, ominously, whether she “still views the Constitution ‘as originally drafted and conceived’ as ‘defective’?” This time progressives should do more than play defense, we must turn the tables and win the fight over our nation’s charter. (NYT) A Pragmatic New Yorker on a Careful Path to Washington
10 May
Obama Chooses Kagan, Scholar but Not Judge, for Court Seat
(NYT) After a month-long search, the president has chosen Elena Kagan, his solicitor general and a former dean of Harvard Law School, to succeed the retiring Justice John Paul Stevens. Elena Kagan is Obama’s Supreme Court pick
(WaPost) President Obama on Monday announced his nomination of Solicitor General Elena Kagan to be the 112th justice of the Supreme Court, calling her a “trailblazing leader” who would bring “fair-mindedness and skill as a consensus builder” to the court. And now the fun begins. As the Economist states: “Supreme Court hearings are nearly as vicious as presidential campaigns, and with good reason. The stakes are almost as high. If confirmed—as seems highly likely—Ms Kagan will enjoy a seat for life on the court that is the final arbiter of what the US constitution means” (The Economist) The stealth nominee; (WSJ Topics) Elena Kagan
15 April
Timothy Egan: Supreme Club
For a truly diverse Supreme Court, try appointing a justice who didn’t go to Harvard or Yale.
with the retirement of Justice John Paul Stevens, the Supreme Court will not have a single Protestant among its black-robed elite. But equally jaw-dropping [is] the fact that without Stevens, every member of the court has attended Harvard or Yale law school.
The next Supreme Court justice
Barack Obama’s nominee to replace Justice John Paul Stevens will be brainy, young and controversial
(The Economist) Leaks suggest that he has a shortlist of about ten candidates, including a couple of big political names: Janet Napolitano, the homeland-security secretary, and Jennifer Granholm, the governor of Michigan. Most pundits, however, expect him to nominate a professional jurist. The most-mentioned names include Diane Wood and Merrick Garland, both appeals-court judges, and Elena Kagan, the solicitor-general. His nominee must be confirmed by the Senate, which should be easy, since his party has a hefty majority. In theory, Republicans could mount a filibuster, but blocking a judge is not like blocking a law. If they had successfully filibustered health reform, it would have died. But if they scuttle Mr Obama’s nominee, he will simply name another.
10 April
Who Should Replace Justice Stevens?An offbeat shortlist.
(Slate) I think she’d be a rock star of a Supreme Court justice. Clinton has all the makings of a full-throated, strong-minded liberal stalwart on the bench. She’s been an advocate for children and for families for as long as she’s been in public life. They are in need of as much help as they can get on the court. The only knock on Clinton is that at 62, she won’t necessarily serve for decades upon decades. But she looks healthy and energetic as ever and I’d trade a few extra years for her mettle and character.
Justice Stevens to Retire After 34 Years
The retirement of Associate Justice John Paul Stevens, 89, was widely expected, and sets up a confirmation battle over his replacement that could dominate the political scene this summer. Stevens’s Retirement Is Political Test for Obama
The End of an Era, for Court and Nation
John Paul Stevens may be the last justice deemed qualified because of ability and independence rather than perceived ideology.
11 February
Lawmakers Want to Reinstate Barriers on Campaign Spending by Corporations, Others
House and Senate Democrats outlined legislation today aimed at rebuilding some of the barriers to political advertising by corporations, unions and other third-party groups that the Supreme Court just struck down.
28 January
White House v. the Supreme Court
The White House is trying to back up President Obama’s side after a rare moment of dispute with Justice Samuel A. Alito Jr. was captured on camera during last night’s State of the Union.
24 January
E.J. Dionne Jr : Supreme Court ruling calls for a populist revolt
(WaPost Op-Ed) “Populism” is the most overused and misused word in the lexicon of commentary. But thanks to a reckless decision by Chief Justice John Roberts’s Supreme Court and the greed of the nation’s financial barons, we have reached a true populist moment in American politics. The Supreme Court’s 5-to-4 decision last week giving American corporations the right to unlimited political spending was an astonishing display of judicial arrogance, overreach and unjustified activism.
24 January
McCain Says Campaign Finance Reform Is Dead
(ABC News) End of a movement: McCain says campaign finance reform is dead after Supreme Court decision
22 January
Rodrigue Tremblay: The United States of Corporate America: From Democracy to Plutocracy
… In conclusion, let us reiterate that in a democracy—and as it is clearly established also in the U.S. Bill of Rights and in all democratic constitutions—the citizens are the only legitimate source of law. It follows inexorably that corporations, not being citizens, cannot be legitimate political actors. Chief Justice Roberts and his conservative Supreme Court majority have thus badly erred in their anti-democratic judgment. Their judgment is clearly revolutionary or, more precisely, counter-revolutionary.
21 January
John Dean: A Supreme Victory for Special Interests
The conservative majority of the U.S. Supreme Court has given a monumental victory to special interests—i.e., the big money corporations, the folks who already dominate Washington politics—with its ruling in Citizens United v. Federal Election Commission. Chief Justice John Roberts, along with Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy (who wrote the court’s opinion), have gone out of their way to further obliterate serious efforts to reform out-of-control campaign spending—spending that conspicuously distorts democracy in favor of those who can buy political influence. This ruling is of the same judical activism ilk that produced Bush v. Gore, not to mention the ensuing eight years of a disastrous Bush/Cheney presidency from which the nation has yet to recover. Understandably, President Obama is flummoxed. (Slate) Even former Chief Justice William H. Rehnquist once warned that treating corporate spending as the First Amendment equivalent of individual free speech is “to confuse metaphor with reality.” Today that metaphor won a very real victory at the Supreme Court. And as a consequence some very real corporations are feeling very, very good. More; (NYT) Lobbyists Get Potent Weapon in Campaign Ruling
6 August 2009
Senate confirms Sotomayor, first Hispanic on Supreme Court
WASHINGTON (Reuters) – The Democratic-led Senate voted largely along party lines, 68-31, to approve President Barack Obama’s nomination of Sotomayor for the lifetime appointment on the highest U.S. court. Sotomayor’s Bumpy Road to Confirmation
30 June
Roberts Court Shifts Right, Tipped by Kennedy
(NYT Analysis) The court took mainly incremental steps in major cases concerning voting rights, employment discrimination, criminal procedure and campaign finance. But the chief justice’s fingerprints were on all of them, and he left clues that the court is only one decision away from fundamental change in many areas of the law.
29 June
A controversial ruling by America’s Supreme Court
IN ITS most closely watched case this year, America’s Supreme Court ruled on Monday June 29th that the authorities in New Haven, Connecticut, were wrong to deny promotion to white firemen because no blacks had scored high enough marks in an exam to warrant advancement. The case, Ricci v DeStefano, was brought by white (and Hispanic) firemen who had taken a test in 2003 to determine their suitability for promotion to lieutenant or captain. They accused New Haven of discrimination when it refused, fearing litigation, to certify the results. With no blacks succeeding, the exam had become a politically contentious issue in the city.
In a 5-4 decision, the Supreme Court held that New Haven’s actions violated the 1964 Civil Rights Act. It found that the firemen’s test was job related, and crucially, that it was not designed to have a “disparate impact” on minorities, the ground on which New Haven said it feared being sued. Writing for the majority, Justice Anthony Kennedy concluded that the firemen had studied for months at considerable personal expense, and so the injury caused by New Haven’s “reliance on raw racial statistics at the end of the process was all the more severe”. When Nepotism Means Discrimination: The Legacy of Ricci
29 May
Sonia Sotomayor’s Canadian connection
To supporters, Judge Sotomayor’s vigorous questioning of the Bush administration’s position in the case of the Canadian, Maher Arar, showcases some of her strengths. She is known as a formidably intelligent judge with a prodigious memory who meticulously prepares for oral arguments and is not shy about grilling the lawyers who appear before her to ensure that she fully understands their arguments.
26 May
Obama Picks Sotomayor, Citing Intellect
President Obama announced on Tuesday that he will nominate the federal appeals judge Sonia Sotomayor for the Supreme Court, choosing a daughter of Puerto Rican parents raised in a Bronx public housing project to become the nation’s first Hispanic justice. Judge Sotomayor, who stood next to the president during the announcement, was described by Mr. Obama as “an inspiring woman who I am confident will make a great justice.” The president said he had made his decision after “deep reflection and careful deliberation,” and he made it clear that the judge’s inspiring personal story was crucial in his decision. Mr. Obama praised his choice as someone possessing “a rigorous intellect, a mastery of the law.” But those essential qualities are not enough, the president said. Quoting Justice Oliver Wendell Holmes, Mr. Obama said, “The life of the law has not been logic, it has been experience.” It is vitally important that a justice know “how the world works, and how ordinary people live,” the president said. David Frum: Who is Sonia Sotomayor?
12 May
Potential Justice Offers a Counterpoint in Chicago
Judge Diane P. Wood, who has established a record of ideological combat, ranks high on many Supreme Court short lists.
In Choosing Souter’s Replacement, Obama Should Follow the Lead of… George W. Bush?
U.S. Supreme Court justices are far more powerful in shaping American society than the average person realizes. As these officials are appointed and not elected, and serve for life, the selection of a justice to the Court is one of the most important decisions a president will make during his time in office.
1. The Younger, the Better
2. The Further to the Left, the Better
3. He/She Better Be Qualified
10 May
Scouring Obama’s Past for Clues on Judiciary
As a constitutional law teacher, Mr. Obama gained a reputation as a pragmatist who sometimes challenged liberal orthodoxies. But as a senator who came to Washington in 2005 already being mentioned as a potential Democratic presidential candidate, he assembled a nearly uniformly liberal voting record on judges.
8 May
Souter’s Exit Opens Door for a More Influential Justice
In replacing Justice Souter, President Obama will almost surely pick another liberal. But Mr. Obama may also consider Justice Souter as a kind of counterexample and choose a bigger and bolder figure, one who sets agendas, forges consensus and has a long-term vision about how to shape the law.
7 May
Following Souter
(The Economist) President Barack Obama now has a chance to pep up the court’s liberal wing with a youthful replacement.
The Supreme Court matters. Its nine members decide what the constitution means. When there is doubt as to whether a law, a president or the actions of a local police department are lawful, the nine get the final say. Their decisions cannot be overruled, except by a future Supreme Court or a constitutional amendment. And they are appointed for life.
David Brooks and Gail Collins: Who Will Replace Souter?
Brooks: Finally, I bet he picks someone you like and I can live with — someone on the more liberal end of things but also very reasonable and smart. I also suspect that nearly every Republican will then vote against her.
5 May
Groups push for first gay Supreme Court justice
(Politico) Within hours of word of Souter’s departure, the Gay and Lesbian Victory Fund was hailing the candidacy of a First Amendment scholar and former dean of Stanford Law School, Kathleen Sullivan. “Out lesbian a contender for Supreme Court,” one of the group’s web sites declared.
Court packing: Potential Hoya replacements for Justice Souter
(Vox populi – Georgetown) With alum Antonin Scalia (COL ‘57) and Samuel Alito, whose daughter attends Georgetown, the Supreme Court already has a sizable Georgetown-block. But, with the retirement of Justice David Souter, the court could get even Georgetown-ier. Here are the Hilltop-approved possible replacements:
1 May
Obama’s high court choice could be Hispanic, woman
(Yahoo! News) Souter’s retirement after almost two decades of unpredictable decisions gives Obama an early chance to place his stamp on the nine-member high court, possibly by naming a minority — a second black or the court’s first Hispanic — or a second woman, as well as to affirm if not strengthen its support for abortion rights. As a candidate for the White House, he said he would not use a litmus test for nominees, but observed that he thought the landmark 1973 Roe v. Wade ruling that gave women the right to end their pregnancies was correctly decided.
Obama hopes to replace Souter by October
(MSNBC) Departure is unlikely to change the court’s conservative-liberal split
WASHINGTON – President Barack Obama pledged Friday to name a Supreme Court justice who combines “empathy and understanding” with an impeccable legal background to succeed liberal David Souter, whose abrupt retirement announcement set off speculation the next justice could be a woman, a Hispanic or both.

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