FedSoc Blog

Retired Justice Stevens Questions Supreme Court’s Commitment to Citizens United

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by Justin Shubow
Posted May 31, 2012, 3:25 PM

According to Bloomberg News:

Retired U.S. Supreme Court Justice John Paul Stevens said his former colleagues may be having “second thoughts” about the reach of the 2010 ruling that let corporations spend unlimited sums on political campaigns.

Stevens, speaking at an event sponsored by the University of Arkansas in Little Rock last night, said he questioned whether the five-justice majority stood fully behind its statement that the Constitution’s First Amendment “generally prohibits the suppression of political speech based on the speaker’s identity.”

Stevens dissented in the case, known as Citizens United v. Federal Election Commission, and retired later that year. He made his comments as his former colleagues prepare to decide whether they will use a Montana case to revisit some aspects of Citizens United in the nine-month term that starts in October.

Stevens, 92, said he reached his conclusion about the majority’s doubts after reflecting on later rulings by the high court, including a one-line order this year that upheld a federal ban on campaign spending by foreigners.

Those developments “provide a basis to expect that the court already has had second thoughts about the breadth of the reasoning” in the majority opinion, Stevens said, according to prepared remarks released by the court.

Stevens also pointed to Justice Samuel Alito’s reaction at the 2010 State of the Union Address, when he mouthed “not true” as President Barack Obama criticized the just-issued Citizens United decision. Stevens said Alito, a member of the Citizens United majority, was probably reacting to Obama’s assertion that the ruling would let foreign corporations influence U.S. campaigns.

“Justice Alito’s reaction does persuade me that in due course it will be necessary for the court to issue an opinion explicitly crafting an exception that will create a crack in the foundation of the Citizens United majority opinion,” Stevens said.

UPDATE: The full text of Justice Steven's speech can be found here.

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DOJ Finds Prosecutorial Misconduct in Ex-Senator Ted Stevens Case

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by Justin Shubow
Posted May 31, 2012, 12:58 PM

JURIST covers the story:

A report released by the US Department of Justice (DOJ) [official website] concluded that two of the prosecutors involved in the 2008 trial of former senator Ted Stevens acted recklessly in their management of evidence, leading to a failure to disclose crucial evidence to Stevens's defense team. The DOJ suspended Joseph Bottini and James Goeke without pay. Stevens was convicted on corruption charges in October 2008, but the verdict was set aside in April 2009 after the DOJ admitted that it had failed to disclose relevant information to the defense in preparation for the trial. The report found no intentional misconduct by the prosecution.

Stevens was convicted in October 2008 on seven counts of making false statements relating to an alleged corruption scheme and for falsifying his Financial Disclosure Forms. Following his conviction, Stevens lost his re-election bid in November of that year to Senator Mark Begich. Stevens was charged in July with accepting approximately $250,000 in gifts over an eight-year period from the founder of oil services and engineering company VECO Corp. In August, A US district court judge denied Stevens' request to move the case from Washington, DC to Alaska, rejecting the argument that he needed to be in Alaska to campaign for re-election.

 

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First Circuit: Heart of Same-Sex Marriage Law Unconstitutional

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by Justin Shubow
Posted May 31, 2012, 10:12 AM

The AP reports:

federal appeals court Thursday declared that the Defense of Marriage Act unconstitutionally denies federal benefits to married gay couples, a ruling all but certain to wind up before the U.S. Supreme Court.

In its unanimous ruling, the three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston said the 1996 law that defines marriage as a union between a man and a woman discriminates against gay couples because it doesn't give them the same rights and privileges as heterosexual couples.

The court didn't rule on the law's other politically combustible provision, which said states without same-sex marriage cannot be forced to recognize gay unions performed in states where it's legal. It also wasn't asked to address whether gay couples have a constitutional right to marry.

The law was passed at a time when it appeared Hawaii would legalize gay marriage. Since then, many states have instituted their own bans on gay marriage, while eight states have approved it, led by Massachusetts in 2004.

The appeals court agreed with a lower court judge who ruled in 2010 that the law is unconstitutional because it interferes with the right of a state to define marriage and denies married gay couples federal benefits given to heterosexual married couples, including the ability to file joint tax returns.

The 1st Circuit said its ruling wouldn't be enforced until the U.S. Supreme Court decides the case, meaning that same-sex married couples will not be eligible to receive the economic benefits denied by DOMA until the high court rules.

In January 2011, FedSoc's Indianapolis Lawyers Chapter held a talk by the Hon. Gregory G. Katsas--partner at Jones Day and former Assistant Attorney General, Civil Division, U.S. Department of Justice--on the subject "Defending the Defense of Marriage Act."  You can listen to the audio of the event here.

Montana Bucks the Court on Citizens United

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by Justin Shubow
Posted May 31, 2012, 8:01 AM

George F. Will comments in the Washington Post:

Montana uses an interesting argument to justify defiance of a Supreme Court decision: Because the state is particularly prone to political corruption, it should be trusted to constrict First Amendment protections of political speech.

At issue is the court’s 2010 Citizens United decision, which held, unremarkably, that Americans do not forfeit their First Amendment rights when they come together in corporate entities or labor unions to speak collectively. What do liberals consider the constitutional basis for saying otherwise?

Three Montana corporations sued to bring the state into conformity with Citizens United by overturning a 100-year-old state law, passed when copper and other corporations supposedly held sway, that bans all corporate political spending. The state’s Supreme Court refused to do this, citing Montana’s supposedly unique susceptibility to corporate domination — an idea amusingly discordant with the three corporations’ failure even to persuade the state court to acknowledge the supremacy of the U.S. Supreme Court.

Reasons for the Supreme Court to reconsider Citizens United are nonexistent. The ruling’s primary effect has been to give unions and incorporated nonprofit advocacy groups freedom to spend what they choose on political speech as long as they do not coordinate with candidates or campaigns. Campaign “reformers,” who advocate speech rationing, apparently regard evidence irrelevant to argument, probably because there is no evidence for their assertion that 2012 has been dominated by corporate money unleashed by Citizens United

For some of the Federalist Society's previous coverage of the case, see William R. Maurer's Engage article "Illuminating Citizens United: What the Decision Really Did."  You can also listen to a post-decision SCOTUScast featuring Edward B. Foley, Erik S. Jaffe, and Bradley A. Smith.

New SCOTUScast: Wood v. Milyard

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by SCOTUScaster
Posted May 30, 2012, 2:01 PM

On April 24, 2012, the Supreme Court announced its decision in Wood v. Milyard.  The question in this case concerns the authority of a federal court to raise, on its own initiative, a statute of limitations defense to a habeas corpus petition.

In an opinion delivered by Justice Ginsburg, the Court held that a federal court may generally raise a statute of limitations defense on its own initiative--but may not do so where the State was aware of the defense and intelligently chose not to rely upon it in the court of first instance.  Because the State had deliberately waived the limitations defense in this case, the Court explained, the U.S. Court of Appeals for the Tenth Circuit abused its discretion by resurrecting the defense on appeal.  Accordingly, the Supreme Court reserved the Tenth Circuit’s dismissal of the habeas petition and remanded the case for further proceedings.  

Chief Justice Roberts and Justices Kennedy, Breyer, Alito, Sotomayor, and Kagan joined Justice Ginsburg’s opinion.  Justice Thomas filed an opinion concurring in the judgment, which was joined by Justice Scalia.

We have Brian Means, a federal habeas corpus litigator, to discuss the case.

Click here to view this article on the source site »

Categories: SCOTUScasts

Louisana Monks Defend Right to Sell Handmade Caskets

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by Justin Shubow
Posted May 30, 2012, 11:30 AM

The Washington Post reports that monks in Louisiana are going to court to defend their right to sell caskets they've made by hand:

Not very long after God told some at St. Joseph Abbey that the way out of financial hardship might be selling the monks’ handcrafted caskets, the state of Louisiana arrived with a different message.

It was a cease-and-desist order and came with threats of thousands of dollars in fines and possible criminal prosecution.

“Before we even sold a casket,” St. Joseph Abbot Justin Brown said in a recent interview in the picturesque abbey, which is located about an hour’s drive from New Orleans, on the other side of Lake Pontchartrain. Now a band of libertarian lawyers is hoping that the honey-colored Louisiana cypress coffins provide the vehicle for a Supreme Court review of government economic regulations.

Brown, a soft-spoken man who is only the fifth leader of a monastery that dates to 1889, said he had not known that in Louisiana only licensed funeral directors are allowed to sell “funeral merchandise.”

That means that St. Joseph Abbey must either give up the casket-selling business or become a licensed funeral establishment, which would require a layout parlor for 30 people, a display area for the coffins, the employment of a licensed funeral director and an embalming room.

“Really,” Brown said. “It’s just a big box.”

And so, after much prayer and two failed attempts to get the Louisiana legislature to change the law, the monks went to federal court.

The monks won round one in July, when U.S. District Judge Stanwood R. Duval Jr. ruled Louisiana’s restrictions unconstitutional, saying “the sole reason for these laws is the economic protection of the funeral industry.”

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Is the Law Firm Business Model Dying?

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by Justin Shubow
Posted May 30, 2012, 9:09 AM

The Wall Street Journal yesterday published an op-ed by Clifford Winston and Robert Crandall, authors of First Thing We Do, Let’s Deregulate All the Lawyers, on the lessons to be learned from the fall of the firm Dewey & LeBoeuf:

On Monday night the century-old law firm of Dewey & LeBoeuf filed for bankruptcy—following in the footsteps of other venerable firms such as Howrey & Simon, Heller Ehrman, Coudert Brothers, and Brobeck, Phelger and Harrison. It is easy to think that greedy lawyers are getting their just deserts. But this should not blind us from seeing that there is a better way for America's law firms to do business.

The problems these firms face today are twofold: Large clients are increasingly using in-house counsel to reduce costs, and the public is increasingly taking the do-it-yourself route given the growing access to a variety of legal services and documents on the Internet. The rational response would be for new, low-cost legal firms to start up, and for incumbents to reduce costs and attract new clients by providing innovative services.

But that is happening only to a limited extent because of state licensing requirements and American Bar Association (ABA) rules. Deregulation could open the market and transform the legal industry for the better.

Regulatory barriers have hamstrung other sectors of the economy in the past until the arrival of deregulation. For example, Interstate Commerce Commission (ICC) regulations raised railroad rates for decades after its inception in 1887. But with the proliferation of motor vehicles, trucks began to capture a large share of rail freight traffic.

Then trucks were included under the ICC's regulatory umbrella in 1935, to prevent railroads' freight market share from continuing to erode. But by raising trucking rates, the ICC induced some shippers to buy and operate their own trucks, exacerbating rail's woes. Similarly, Civil Aeronautics Board regulations elevated airline fares, and by the late 1950s—when interstate highway travel was possible—the high fares limited the percentage of seats filled with paying passengers.

The deregulation of transportation that began during the late 1970s enabled motor, air and rail carriers to reduce costs and, particularly in the case of railroads and airlines, to regain market share by offering consumers lower prices and better service.

How have regulations caused the demise of long-established "white-shoe" law firms? Much legal work is performed by associates, who in most states must graduate from a law school accredited by the ABA and pass a state bar examination. This form of licensing significantly limits the flow of new legal practitioners. It also means would-be lawyers must make a substantial upfront educational investment in money and time that must be recouped in high salaries later.

Such salaries can be and are paid because licensing limits competition in the legal profession, and because partners derive much of their own inflated earnings from associates' work.

But when law firms are under pressure to reduce costs, it is difficult for the partners to significantly reduce their reliance on associates without severely affecting their ability to serve clients. Efforts to outsource some tasks have met with only limited success.

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New SCOTUScast: Dorsey v. United States and Hill v. United States

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by SCOTUScaster
Posted May 29, 2012, 4:45 PM

On April 17, the Supreme Court heard oral argument in Dorsey v. United States and Hill v. United States. Both cases involve the Fair Sentencing Act of 2010 (FSA), which dramatically increased the quantities of crack cocaine that must be involved in various drug trafficking offenses before certain mandatory minimum penalties are triggered.  The question in Dorsey v. United States is whether the FSA applies to all defendants sentenced after its enactment, even if their crime and conviction occurred prior to its passage.  The analogous question in Hill v. United States is whether the relevant date for determining the applicability of the FSA is the date of the underlying offense or the actual date of sentencing.

To discuss the cases, we have William Otis, an adjunct professor at Georgetown University Law Center and a former federal prosecutor.

Click here to view this article on the source site »

Categories: SCOTUScasts

Sanford Levinson: Our Imbecilic Constitution

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by Justin Shubow
Posted May 29, 2012, 12:01 PM

At the New York Times, University of Texas Law professor Sanford Levinson blames the Constitution for a whole host of serious problems:

Advocating the adoption of the new Constitution drafted in Philadelphia, the authors of “The Federalist Papers” mocked the “imbecility” of the weak central government created by the Articles of Confederation.

Nearly 225 years later, critics across the spectrum call the American political system dysfunctional, even pathological. What they don’t mention, though, is the role of the Constitution itself in generating the pathology.

Ignore, for discussion’s sake, the clauses that helped to entrench chattel slavery until it was eliminated by a brutal Civil War. Begin with the Senate and its assignment of equal voting power to California and Wyoming; Vermont and Texas; New York and North Dakota. Consider that, although a majority of Americans since World War II have registered opposition to the Electoral College, we will participate this year in yet another election that “battleground states” will dominate while the three largest states will be largely ignored.

Our vaunted system of “separation of powers” and “checks and balances” — a legacy of the founders’ mistrust of “factions” — means that we rarely have anything that can truly be described as a “government.” Save for those rare instances when one party has hefty control over four branches — the House of Representatives, the Senate, the White House and the Supreme Court — gridlock threatens. Elections are increasingly meaningless, at least in terms of producing results commensurate with the challenges facing the country.

But if one must choose the worst single part of the Constitution, it is surely Article V, which has made our Constitution among the most difficult to amend of any in the world. The last truly significant constitutional change was the 22nd Amendment, added in 1951, to limit presidents to two terms. The near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.

It was not always so. In the election of 1912, two presidents — past and future — seriously questioned the adequacy of the Constitution. Theodore Roosevelt would have allowed Congress to override Supreme Court decisions invalidating federal laws, while Woodrow Wilson basically supported a parliamentary system and, as president, tried to act more as a prime minister than as an agent of Congress. The next few years saw the enactment of amendments establishing the legitimacy of the federal income tax, direct election of senators, Prohibition and women’s right to vote.

No such debate is likely to take place between Barack Obama and Mitt Romney. They, like most contemporary Americans, have seemingly lost their capacity for thinking seriously about the extent to which the Constitution serves us well. Instead, the Constitution is enveloped in near religious veneration. (Indeed, Mormon theology treats it as God-given.)

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Is the Ban on Women in Combat Unconstitutional?

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by Justin Shubow
Posted May 29, 2012, 10:10 AM

At Constitutiona Daily, Lyle Denniston discusses a lawsuit seeking to overturn the military's ban on women in combat.  According to the press release from the plaintiffs:

We want to eliminate this last vestige of formal discrimination against women by the federal government, and ensure that women in the military have the same opportunities and the same obligations as men. No other employer in the country may tell a woman that she is barred from the job merely because she is a woman.  It is time for the Pentagon to stop relying on sex as a proxy for fitness to serve.

Denniston comments:

Under the Constitution’s Article I, Section 8, Congress has explicit authority “to make rules for the government and regulation of the land and naval forces.”  Still, like all powers given to the national legislature, this one could not be used in a way that violated constitutional rights.  For example, a rule barring racial minorities from military service clearly would not be valid now.

But a more significant factor, when discussing any lawsuit challenging military policy, is that the Supreme Court has long held and applied the view that the courts should seldom intrude into military policy, on the premise that the Constitution assigns that function to the political branches, and the view that courts are not experts in the field of managing military operations.

That deference to the military goes back a long way, and was well established by the time the Supreme Court issued a series of decisions during and after World War II, creating the constitutional concept of “military necessity,” meaning less judicial second-guessing of military policy.

There are more recent precedents, but they seem to point in opposite directions.  In 1981, in  the case of Rostker v. Goldberg, the Court upheld the policy that limited the military draft to men.  It did so primarily on the basis that the draft was to produce troops for combat duty, and women, of course, could not perform that duty.  The Court majority accepted that exclusion without question.

But in 1996, in the case of United States v. Virginia, the Court struck down a males-only admissions policy at Virginia Military Institute in Lexington, Va., partly because it shut women out of a channel leading toward potential careers in the military.

For FedSoc's prior discussion of related issues, see Anita K. Blair's Engage article "US v. Virginia: The New and Improved Equal Protection Clause."

 

Should Grutter v. Bollinger Be Overturned or Modified?

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by Justin Shubow
Posted May 29, 2012, 8:26 AM

Richard Kahlenberg comments at the Chronicle of Higher Education:

In February, when the U.S. Supreme Court decided to hear a challenge to the use of racial preferences at the University of Texas, supporters of affirmative action understood the move to be a bad sign. But at least in the lower courts, opponents of affirmative action had argued that the University of Texas’s use of race was illegal under a 2003 precedent, Grutter v. Bollinger.

Now, as Peter Schmidt notes in a Chronicle story, court papers filed by opponents of affirmative action last week go further and invite the Supreme Court to overturn Grutter, a decision which allowed universities to employ race under certain circumstances.

It is possible that the Supreme Court will simply reverse Grutter. Indeed, there may be four conservative justices—John Roberts, Samuel Alito, Atonin Scalia, and Clarence Thomas—who are willing to apply to higher education Chief Justice Roberts’s argument in the K-12 setting: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

But outright reversal of the nine-year-old Grutter decision, and adoption of a full ban on affirmative action, seems unlikely to appeal to the swing vote on the court, Justice Anthony Kennedy. In the 2007 challenge to the use of race in the K-12 setting, Justice Kennedy rejected an absolutist position. Kennedy believes that racial diversity is a positive value, and doesn’t believe, as other more conservative justices do, that the use of race is almost always barred.

Having said that, the new brief filed last week is likely to persuade Kennedy to significantly curtail the ability of colleges and universities to use race. The brief mentions Justice Kennedy’s name 20 times. (The other eight sitting justices, collectively, are mentioned by name twice.)

Justice Kennedy dissented in Grutter and one of his central complaints was that the Supreme Court had given too much deference to the University of Michigan Law School in its contention that it could find no way to produce a critical mass of minority students other than by using race. In the brief filed by the petitioner, Abigail Fisher, the following data are emphasized:

* In 1996, when UT Austin used race in admissions, the freshman class was 18.6% African American and Hispanic.

* In 1997, when UT Austin was temporarily barred from using race in admissions, but employed socioeconomic factors, the entering class was 15.3% African American and Hispanic.

* In 2004, when UT Austin was still barred from using race, and employed socioeconomic factors combined with a plan to admit the top 10 percent in every high school, the freshman class was 21.4 percent African American and Hispanic—a greater representation than the 1996 entering class in which race was employed.

* The University of Michigan Law School’s racial diversity program, upheld in Grutter, resulted in a minority representation of 14 percent—a figure below the minority percentage achieved by UT Austin using socioeconomic status alone (15.3 percent) or socioeconomic status along with the top-10-percent plan (21.4 percent).

Given these data, it seems hard to see how Justice Kennedy, who wants race used only as a “last resort,” would support the decision of UT Austin to reintroduce considerations of race after 2004.

For more on the case, see Joshua P. Thompson's Engage article "Fisher v. University of Texas at Austin: Could the Supreme Court Revisit Its Decision in Grutter."

 

Sixth Circuit Lowers Bar for Disability Discrimination

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by Justin Shubow
Posted May 25, 2012, 4:06 PM

Reuters has the story:

A worker suing her employer under the Americans with Disabilities Act does not have to prove that she was fired solely because of her disability, a federal appeals court ruled on Friday.

For the past 17 years, the Cincinnati-based U.S. Court of Appeals for the 6th Circuit has required district courts to instruct juries that an employee's disability must be sole reason for his or her firing.

But in considering the case of Susan Lewis, a former nurse suing her employer, the court abandoned that standard in a splintered 9-7 ruling, making it somewhat easier for workers to sue for disability discrimination.

"The longer we have stood by this standard, the more out of touch it has become with the standards used by our sister circuits. At this point, no other circuit imports the 'solely' test into the ADA," Judge Jeffrey Sutton wrote for the nine-judge majority.

Lewis sued retirement-home operator Humboldt Acquisition Corp in 2007, claiming she was fired for a medical condition that made it difficult to walk and required use of a wheelchair. Humboldt claimed that Lewis was fired because of a profanity-laced outburst at her supervisors.

Humboldt had asked the court to instruct the jury that Lewis could only prevail on her ADA claim if her disability was the sole reason for her firing. The district court obliged, following the 6th Circuit's longstanding rule, and the jury ruled in Humboldt's favor.

On appeal, Lewis argued that the district court should have instructed the jury that her disability only had to be one "motivating factor" -- the same standard used for Title VII claims alleging discrimination based on race, religion and sex. The ADA was enacted to expand protections beyond Title VII to cover disability, and so the same test should apply to both laws, Lewis argued.

Most other federal circuits apply the more lenient "motivating factor" standard to ADA claims, requiring plaintiff employees to prove that their disability was one of several contributing reasons for the firing.

While the 6th Circuit majority retreated from the sole-cause test, it refused to embrace the "motivating factor" jury instruction. Rather, the court settled on an intermediate test, requiring employees to prove that they would not have been fired if they had not been disabled.

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Stephen L. Carter: Liberal Fears Imperil Justice’s Job

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by Justin Shubow
Posted May 25, 2012, 1:00 PM

As a counterpoint to recent discussion of whether Justice Ginsburg should time her resignation politically, Yale Law professor Stephen L. Carter weighs in at Bloomberg News:

On election night 1980, after the scope of Ronald Reagan’s landslide became clear, a major television network solemnly reported that Justice Thurgood Marshall had told friends that he planned to step down from the Supreme Court and allow the defeated president, Jimmy Carter, to nominate a successor. I was serving as a law clerk for Marshall at the time, and can state categorically that nothing could have been further from the truth.

This bit of history comes to mind because of the growing chorus calling for Justice Ruth Bader Ginsburg to step down. A recent Associated Press article related what “Democrats and liberals” consider a “nightmare vision of the Supreme Court’s future” -- to wit, that President Obama loses his re-election bid, and Ginsburg, now 78 and the oldest member of the court, retires due to ill health. The horror story continues: “The new Republican president appoints Ginsburg’s successor, cementing conservative domination of the court.” The solution seems to be that Ginsburg (and Stephen Breyer, 72, second-oldest among the justices appointed by Democrats) ought to leave the court now, “for the good of the issues they believe in.”

The late constitutional scholar Alexander Bickel famously referred to the Supreme Court as “the most extraordinarily powerful court of law the world has ever known.” No surprise, then, that the court evokes such extraordinarily powerful passions in our politics. It always has. In every presidential election year, candidates warn that their opponents will appoint justices who will twist constitutional law in scary directions. It is almost as though we are electing the justices along with the chief executive.

Among the creepiest passions the Supreme Court evokes is the deathwatch. The creepiness most commonly occurs when activists whose party happens to be in power root all but openly for the passing (euphemistically, the “retirement”) of justices they consider unlikely to vote their way, before the other party takes the reins.

Today’s pressure on Ginsburg, like yesterday’s pressure on Marshall, represents an equally creepy passion: The insidious hope that the justices one party likes will retire while their side still has the opportunity to replace them.

Both passions arise from the same mistake -- the belief that judges exist, in effect, to serve a constituency.

Ninety years ago, the British jurist James Bryce, in his study of the American constitutional system, noted admiringly that the justices of the Supreme Court were “firm to resist any popular agitation.” Absent this ability to stand outside the political battles, Bryce argued, there was no available response to the charge that the justices were merely substituting their own views for those of the legislature.

Categories: External Articles

The Liberal Legal Meltdown Over ObamaCare?

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by Justin Shubow
Posted May 25, 2012, 9:59 AM

Professor Michael W. McConnell comments in the Wall Street Journal:

In apparent panic at the tenor of the Supreme Court argument over the constitutionality of the Affordable Care Act (aka ObamaCare), liberal law professors have exploded with anticipatory denunciations of the court's conservative justices—claiming that it would be "hypocritical" and "partisan" of them to invalidate legislation passed by Congress when they generally oppose "judicial activism."

It appears the professors' idea of sound jurisprudence is that their favored justices are free to invalidate statutes that offend their sensibilities whether or not the words of the Constitution have anything to say on the matter, as in the case of same-sex marriage or partial-birth abortion, and even if the Constitution seems to endorse it, as in capital punishment. But if conservative justices have the temerity to enforce actual limits on government power stated in Article I, Section 8—over liberal dissents—then they are acting as shameless partisans.

It seems unlikely this one-sided definition of "activism" will persuade anyone. Judicial review might be aggressive and it might be deferential, but there cannot be one set of rules for liberal justices and another set for conservatives.

If liberal supporters of the health-care law were as confident of the merits of their position as they claim to be, they would offer actual legal arguments, based on text, history, structure and precedent, instead of labeling justices with whom they disagree as hypocrites and partisans.

The health-care case is hard for a reason. As James Madison wrote in The Federalist, No. 37, "marking the proper line of partition between the authority of the general and that of the State governments" is so "arduous" that it will "puzzle the greatest adepts in political science."

As American commerce has grown more national and even global in nature, the line has become only harder to draw. It is not intellectually responsible for defenders of the health-care statute to pretend there is only one clear right answer to the case, and to imply that those who disagree must be blinded by partisanship.

Categories: External Articles

Second San Francisco-Area Court Strikes Down DOMA

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by Justin Shubow
Posted May 25, 2012, 8:30 AM

The San Francisco Chronicle reports:

Congress violated constitutional standards on legalized bigotry when it denied federal benefits from same-sex spouses and excluded domestic partners of state employees from long-term health coverage, a federal judge ruled Thursday.

The decision by U.S. District Judge Claudia Wilken of Oakland was the second by a Bay Area judge this year to strike down the Defense of Marriage Act, the 1996 law withholding more than 1,000 federal benefits - such as joint tax filing, Social Security survivor payments and immigration sponsorship - from gays and lesbians legally married under state law.

Wilken also overturned another 1996 law that denied federal tax benefits to long-term health insurance plans for state employees if they included domestic partners.

That law, like the Defense of Marriage Act, was based on "moral condemnation and social disapprobation of same-sex couples," she said. She cited assertions during congressional debate that same-sex domestic partnership was "an attack on the family" and would "undermine the traditional moral values that are the bedrock of this nation."

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