Quote of the Day

[I]n the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion. This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law … One may sympathize with the petitioners’ impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.

Walker v. City of Birmingham, 388 U.S. 307 (1967)

Supreme Court News

The Supremes have refused to hear an appeal of a case challenging a federal statute concerning threats, in this case a threat made in a YouTube video.

Attorneys for the appellant maintained that the federal threats law—a 1932 statute making extortion illegal—was unconstitutional. Of eight circuit courts of appeal to decide the issue, only the 9th Circuit Court of Appeals has chosen to view the law in line with the appellant’s interpretation. The 9th Circuit is the court whose rulings are most often reversed by the Supreme Court.

BREAKING: Supremes Punt on Prop. 8

The decision not to decide based on the appellants’ lack of standing means that same-sex “marriage” will remain legal in California. The decision is 5-4. Justice Kennedy dissents, joined by Thomas, Alito, and Sotomayor.

More later.

UPDATE—The decision of the Ninth Circuit is vacated and remanded.

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.

UPDATE 2—The full ruling can be found here.

UPDATE 3—The decision of the Ninth Circuit is vacated and remanded should be a macro on the Supreme Court’s word processors.

BREAKING: Supremes Overturn Section 4 of the Voting Rights Act

The question before the Supreme Court was whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

The ruling striking down Section 4 of the VRA by Chief Justice Roberts states:

Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2. We issue no holding on [Section] 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.

More later.

UPDATE—In his concurring opinion Justice Thomas says he would strike Section 5 because the reasons given for striking Section 4 should apply to 5 also.

UPDATE 2—Here’s what Section 4(b) said:

(b) The provisions of subsection (a) shall apply in any State or in any political subdivision of a state which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 percentum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 percentum of such persons voted in the presidential election of November 1964.

A determination or certification of the Attorney General or of the Director of the Census under this section or under section 6 or section 13 shall not be reviewable in any court and shall be effective upon publication in the Federal Register.

What the Court ruled was that this formula is so disconnected from present day reality that it can no longer be considered constitutional. Chief Justice John Roberts was joined by Justices Scalia, Kennedy, Thomas, and Alito. Please note that the Court did not invalidate the principle that preclearance can be required. Section 5 was not struck down, but while it survives, it will have no actual effect until Congress can pass a new law to determine which states and/or localities should be covered by it.

UPDATE 3—The opinion may be found here.

The California Raisins Case

There’s a joke about a lawyer who begins his oral argument in the Supreme Court by saying, “I’m appealing a ruling of the Ninth Circuit, but I have other arguments as well.”

The Supremes reversed the Ninth Circuit again today in a case that’s been called “The California Raisins Case” (Horne v. Department of Agriculture). You can read about it here.

Quote of the Day

This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck’s aphorism that “No man should see how laws or sausages are made.”

—Antonin Scalia in Community Nutrition Institute v. Block, 749 F.2d 50, 51 (D.C. Cir. 1984)

Barack’s Terrible, Horrible, No Good, Very Bad Day Unfolds

Strike One: The revised GDP figures for the economy stayed stuck at an annual rate of 1.9 percent for the first quarter of 2012. What that actually means is that the economy grew about 0.47 percent during that quarter, a rate too low to absorb the increased population of work force age persons and much too low to provide jobs for the already unemployed.

Expect Strike Two just after 10 am ET.

UPDATE–The Supreme Court throws one outside the strike zone! Strike 1, Ball 1

UPDATE 2–The Hose holds Eric Holder in contempt. Strike 2!

Barack’s Terrible, Horrible, No Good, Very Bad Day

First, the Supreme Court will hand down its decisions in the Obamacare cases. I’m still betting that the whole law will go down.

Next, the House will hold the Contempt of Congress vote on Eric Holder. I’m betting he will be held in contempt.

A one-two punch. It will be entertaining to watch the White House and Main Stream Media spin machine tomorrow.

#Obamacare, the Supreme Court, and My Predictions

I made these predictions on 29 March:

I was going to keep these predictions hermetically sealed in a mayonnaise jar on Funk & Wagnall’s porch, but here goes …

The penalty isn’t a tax, so the Anti-Injunction Act doesn’t apply. 9 to 0. Chief Justice Roberts writes the opinion.

The individual mandate is unconstitutional. 5 to 4. Justice Kennedy writes the opinion. Dissenting opinion by Justice Ginsberg.

The whole act is struck down for the lack of a severability clause. 5 to 4. Justice Thomas writes the opinion. Dissenting opinion by Justice Sotomayor.

Because the whole act fails, the Medicaid issue is moot. Per curiam.

We’ll see how well I’ve read these tea leaves in about 3 months.

The Supreme Court should rule this week, perhaps this morning. I still believe I’ve got the vote tallies correctly predicted, but I’m not sure on the opinion authors. We’ll see soon.

Ex Post Factoid

As in a factoid from the Post (WaPo) wherein E. J. Dione writes that we will come to love  Obamacare better after the Supreme Court has struck it down. (H/T, @philipaklein) He cites Joni Mitchell’s Law (“You don’t know what you’ve got till it’s gone.”). I suppose he makes as much sense as the pundits who see the Court’s handing the Obama Administration yet another defeat as being a good campaign issue for Democrats. Those pundits seem to be relying on Obi Wan’s Dictum (“Strike me down, and I shall become more powerful than you can imagine.”).

Folks, this whole Obamacare thing has been a disaster since two weeks before Day One. Any law that follows the Pelosi Principle (“We have to pass the bill to know what’s in it.”) is by definition a bad law.

BTW, I’ll be in class when the Supreme Court hands down opinions on Monday morning, but I’ll be checking with the coverage at scotusblog during my first break. I recommend their live feed.

Immigration, Arizona, and the President

Say, isn’t the Supreme Court about to rule in the Arizona immigration law case? You know, the one about the law requiring Arizona cops to verify whether someone has the right to be in the country.

Let’s say that Arizona wins. Wouldn’t “legalizing” a whole bunch of illegal immigrants “protect” them? Is that part of what’s going on? Is Barack Obama thumbing his nose at Arizona (and possibly the Court)?

The Empire Strikes Out

Ilya Shapiro has an essay at the WSJ on why the Obama Administration keeps losing in the Supreme Court. He believes the problem is that the administration simply does not understand the limits of federal power. They overreach.

He cites three cases that went 9 to 0 against the Administration. One dealt with the right of a church to determine who was or wasn’t a minister in a slap down of the EEOC. Another ruled that a warrant was required for planting a GPS tracking device on someone’s car. The third upheld the right to judicial review of a regulatory agency’s (the EPA in this case) ruling.

That’s three strikes. If the Court calls another, or perhaps two more, with the Obamacare and/or Arizona immigration law cases, it will be past time to retire this batter.

Is it November yet?

If You Strike Me Down …

Powerline has a post up that looks at some of the lame ways various liberals are using pre-decision commentary to “put the squeeze” on the Supreme Court and, especially, the Chief Justice about striking down Obamacare.

It’s a familiar tactic, used in school cafeterias across the land: If you do X (here, strike down Obamacare), we’ll make sure everybody knows you’re Y (here, a hypocritical right-winger). But if you don’t do X, you can be our friend.

This sort of nonsense surely comes from a feeling of powerlessness and panic. If the left were confident in their strength we would be hearing something more along the lines of, “If you strike me down, I shall become more powerful than you can imagine.”

Is it the end of June yet?

Your Argument Is “Not Selling Very Well”

When the Solicitor General gets that feedback from a liberal Justice (Sotomayor), you know he’s having a terrible, horrible, no good, very bad day. Arizona v. United States did not seem to go well for the Obama Administration today.

Ed Morrissey concludes

If the White House loses their challenge to the most controversial part of the law, expect the Left to go after Verrilli again as they did after his difficult day defending ObamaCare.  He may have performed better this time, though, at least on the secondary issues.  And once again, the problem was less with Verrilli and more with the administration’s positions that Verrilli had to defend.

Lame Stream Media?

The comments make more sense than the original blog post. (H/T, Jonah Goldberg)

UPDATE—Charles C. W. Cooke properly fisks Mr. Budowsky’s screed. He concludes:

It is legitimate, if unsound, to argue, as Woodrow Wilson did, that the Constitution is a stumbling block to what “needs” to be done by government and should be replaced or “made a blank paper by construction” — but it is almost impossible to make the case that the government needing free reign is consistent with the Constitution. Put simply, it’s not. Ultimately, one has to pick a side: You’re either for limited, constitutional government in a society in which legal arguments play a significant role, or you’re for unchecked government power in a wholly political society. But you can’t be for both. And as Budowsky defly proves, to try and be so inevitably leads to one beclowning oneself.

Don’t Know Much About History

Oh, those pesky facts! They keep getting in the way!

As part of the Left’s frothing at the mouth over the possibility that the Supreme Court might find Obamacare unconstitutional, David R. Dow has a piece at The Daily Beast advocating the impeachment of the Justices who vote to strike down the law. He cites the example of Jefferson’s support of the impeachment of “Salmon Chase” in 1805 for political reasons.

Salmon Chase, who was appointed Chief Justice by Abraham Lincoln, was born in 1808.

Samuel Chase, who was one of the signers of the Declaration of Independence and who was appointed an Associate Justice by George Washington, was impeached (but not convicted) in 1804/05. Samuel Chase’s acquittal in the Senate by substantial margins on all counts was an important event in the formative days of our republic because it helped to firm up the principal of judicial independence.

UPDATE–One of Prof. Reynolds’ readers points out Mr. Dow’s gaffe, and the Instapundit responds:

Heh; I should have noticed that, but was so floored by the basic concept that I didn’t. So it’s a fail at all levels. Really, for a party/movement that’s allegedly led by a super-smart professor of constitutional law, I’m not seeing any particular evidence of brilliance here . . . .

UPDATE 2–Tina Korbe corrects Mr. Dow’s error–

He cites Thomas Jefferson’s call to impeach Justice Samuel Chase …

–before critiquing his argument for the constitutionality of Obamacare.

UPDATE 3–The Daily Beast has corrected the body of Mr. Dow’s essay and posted this at the end:

CORRECTION: An earlier version of this piece incorrectly stated that Thomas Jefferson attempted to impeach Justice Salmon Chase. It was Justice Samuel Chase.

While Jefferson certainly pushed for the the impeachment of Justice Chase, impeachment is within the purview of the House of Representatives. Had the President attempted to impeach anyone, it would have been a futile gesture. Don’t these people have a fact checker?

The Last Word (For a While)

I’m growing tired of the President’s missteps and misstatements concerning the Obamacare case before the Supreme Court, so I’m going to give James Taranto what I hope will be the last word for a while:

It’s appalling that any president would have the effrontery to lecture the Supreme Court about a pending case. It’s astounding that this president, who was once a professor of constitutional law at an elite university, would do so in such an ignorant fashion.


One of the riffs du jour on the Internet today is about the apparent attempt by the President and his allies to “intimidate” the Supreme Court in order to get the “correct” decision on Obamacare.

David French’s post over at The Corner explains how dumb it is for the Democrats to try to influence the Court this way.

In my experience, federal judges are more likely to be angered than intimidated by direct attacks from politicians and pressure groups. They are “unelected” by design of the Framers, and that lifetime appointment gives them exactly the level of independence the Framers desired. Moreover, this is hardly the first time that the justices have faced high-stakes litigation, and it won’t be the last.
As I listen to President Obama, Senator Schumer, and others, I hear repeats of the legal arguments the Court already found wanting at oral argument. Will repeating simplified versions of those arguments before reporters or even angry crowds somehow make them more persuasive? Hardly. In fact, it merely reaffirms their weakness.

IANAL, but my father was, and he told me that the basic rule of litigation was stress the facts when they were in your favor, to stress the law when it was in your favor, and to yell and bang the table when neither was on your side. Do they really think that banging the table will change much at this stage of the game?

Is it November yet?

UPDATE–It seems that not everyone on the Left got the talking points memo. Ruth Marcus writes at WaPo that she finds the President’s comments “unsettling.” (H/T, PJ Tatler)

UPDATE 2–Well, it hasn’t taken very long for a court to react to the President’s remarks. The Fifth Circuit has asked a government lawyer for a written response from the DoJ concerning whether or not they consider Marbury v. Madison to still be good law. Oh, and scroll down to the update at the link to see that the Fifth Circuit’s reaction is not unprecedented.

UPDATE 3–A few days ago, I did a post where I suggested that the President was fighting outside his weight by picking a confrontation with Christians over the Obamacare contraception mandate. It looks as if he’s doing the same sort of thing with the Supremes and constitutional review. The phrase not ready for prime time comes to mind.

Is it 20 January, 2013 yet?

UPDATE 4–The President has issued a statement trying clarify his remarks. In his clarification he cites Lochner v. New York. He doesn’t seem to understand Lochner very well. David Bernstein does, and he comments at The Volokh Conspiracy.

UPDATE 5—John Hinderaker at Powerline corrects the President’s error in stating that the Supreme Court hasn’t struck down any laws that were “economic” or related to “commerce” since the Lochner decision over a hundred years ago. It zapped a part of Sarbanes-Oxley. It struck down the 1990 Mushroom Research, Promotion, and Consumer Information Act (Yes, Congress passed something like that) and Harbor Maintenance Tax Act and the …

One could be charitable and say that Barack Obama is a bullshitter who makes stuff up whenever he is in a tough spot, or one could say that he is a habitual liar. Take your pick.

The Supremes and Catholic Charities

Over at The Corner, Benjamin Zycher wonders

… if the Left/Obama/Kathleen Sebelius didn’t shoot themselves in the backside when they decided to apply a chainsaw to the religious liberty of the Catholic hospitals, etc. … And so I have a sense — but no direct evidence — that Kennedy and perhaps Roberts may have recoiled in horror from the prospect of Obamacare more deeply than otherwise might have been the case, as they were confronted with the prospective wholesale descent into economic fascism that is the very essence of Obamacare.

Chief Justice Roberts is a member of the Roman Catholic Church. So is Justice Kennedy. So are Justices Scalia, Thomas, and Alito.

My Best Guess

I was going to keep these predictions hermetically sealed in a mayonnaise jar on Funk & Wagnall’s porch, but here goes …

The penalty isn’t a tax, so the Anti-Injunction Act doesn’t apply. 9 to 0. Chief Justice Roberts writes the opinion.

The individual mandate is unconstitutional. 5 to 4. Justice Kennedy writes the opinion. Dissenting opinion by Justice Ginsberg.

The whole act is struck down for the lack of a severability clause. 5 to 4. Justice Thomas writes the opinion. Dissenting opinion by Justice Sotomayor.

Because the whole act fails, the Medicaid issue is moot. Per curiam.

We’ll see how well I’ve read these tea leaves in about 3 months.

Day 3 in the Duck Blind

The Prequels:
If It Doesn’t Walk Like a Duck …
Duck Hunting, Day 2

The first two interim reports of the oral arguments on severability are up at SCOTUSblog. Paul Clement, arguing that the whole law should fall if the individual mandate fails, was hit with tough questions from both both wings of the Court.

The fact that the liberals were very engaged, particularly Justice Kagan, may show that they are very worried that the mandate is going to be held unconstitutional.

Ed Kneedler, the government’s lawyer, had a tough time from the conservative justices who wanted to know if he expected them to go through the whole 2700 page law to pick out what survived and what failed along with the mandate. Justice Scalia suggested that requiring them to do that was barred by the Eighth Amendment. [Update from the transcript.]

JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?
JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to — to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?

More later.

UPDATE–The severabiliy arguments are done, and SCOTUSblog has brief recaps posted. Tom Goldstein notes:

Generally speaking, the more conservative the member the more likely they were to believe that more would have to be invalidated. Justice Scalia would strike down the entire Act.

Lyle Denniston comments that the idea of having to slog through the whole bill to decide what to keep may affect some votes.

A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They did not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.


Congress’ capacity to react in a sensible way also came into some question, particularly from Justice Scalia and, in a way, from Justice Anthony M. Kennedy, both of whom seemed to harbor doubts that the lawmakers would be up to the task of working out a new health care law if this one failed, either totally or partially. Scalia noted the problems in the filibuster-prone Senate. Kennedy wondered whether expecting Congress to perform was a reference to “the real Congress or the hypothetical Congress.”


UPDATE 2–CNN’s Jeffery Toobin is still pessimistic (H/T, Real Clear Politics):

This still looks like a train wreck for the Obama Administration, and it may also be a plane wreck. This entire law is now in serious trouble. It also seems that the individual mandate is doomed. …  [I]t seemed almost a foregone conclusion today that they were going to strike down the individual mandate, and the only question is does the whole law go out the window with it?

UPDATE 3–Ed Morrissey comments:

What seems interesting from these exchanges was that the justices seem to have gotten past the notion of explicit severability and had taken a utilitarian look at whether the consequences of ending the individual mandate necessitated a broader rejection of the PPACA.

UPDATE 4–Nina Totenberg at NPR is beginning to change her tune:

It looked today that if there are five votes to strike down the mandate, there might be five votes to strike down the whole law. Every time the court observers say the court would never go that far, it would never strike down the law—think again. This court is dramatically more conservative than it has been in many, many decades. It is quite prepared, quite capable of going farther than people expected.

UPDATE 5–The Medicaid arguments are done. Tom Goldstein has a first report at SCOTUSblog.

UPDATE 6–Ann Althouse ends her comments with this:

And who can ever forget: “We have to pass the bill so you can find out what is in it”? If the Court drags the whole thing down, no one will ever know what the hell was in it. And I mean no one. Absolutely no one on the face of the earth knows the entire text, and no one will ever know.

UPDATE 7—Andrew Klavan explains why the MSM and the government’s lawyers were caught flatfooted by some of the questions asked during the oral arguments.

Duck Hunting, Day 2

The second round of oral arguments in over in the Obamacare case at the Supreme Court. Scotusblog is beginning to get analysis up as I type this.

One good sign for the states suing to overturn the mandate was the questions by Justice Kennedy expressing concern for how the law fundamentally changes the relationship between citizens and the government.

More later.

UPDATE–CNN’s Jeffery Toobin is reporting that the arguments were

a train wreck for the Obama administration. This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong.

UPDATE 2–NPR spins it as “too close to call.”

UPDATE 3–The early consensus in the MSM is that today was a bad day in court for Obamacare. MSNBC. NYT.

UPDATE 4–There seems to be a general theme in the coverage that Solicitor General Verrilli seemed unprepared for the sort of questions he faced today.

Also, I found this remark by Justice Breyer reported by WaPo bit odd:

If the United States had a burial insurance market equivalent to the extensive system of private and public insurance that it has for health care, perhaps it would not be inappropriate to require people to obtain burial plans, he said.

UPDATE 5—Even Justice Sotomayor had some tough questions:

JUSTICE SOTOMAYOR: So, on that ground -­
JUSTICE SOTOMAYOR: — you’re answering affirmatively to my colleagues that have asked you the question, can the government force you into commerce?
JUSTICE SOTOMAYOR: And there’s no limit to that power.


If It Doesn’t Walk Like a Duck …

… And doesn’t quack like a duck, then it might not be a duck. Or a tax.

It seems that the Supreme Court gave the idea that the Obamacare penalty for not having health insurance is really just a tax a rough time during oral argument. Even Justices Ginsburg and Breyer had tough questions.


UPDATE–Analysis at Scotusblog.

[N]ot one Justice, and no lawyer at the lectern, said that it would be premature and a contradiction of the Court’s tradition against deciding constitutional issues prematurely for the Court to rule promptly on the mandate’s validity.

UPDATE 2—During the argument today, Justice Alito asked the Solicitor General,

[T]oday you are arguing that the penalty is not a tax.  Tomorrow you are going to be back, and you will be arguing that the penalty is a tax.  Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

SG Verrilli was forced to answer, “No.”  This contradictory position is par for the course when you see how the government has been defending its case. The defense of tax/non-tax at the same time a classic example of doublethink. And duckspeak.