Oyez! Supreme Court Preview

The Supreme Court kicked off the October Term yesterday – the first Monday of October.  Here’s a quick roundup of the big issues up before the Court.

Affirmative action:The court will revisit its 2003 ruling (Grutter v. Bollinger) which upheld certain affirmative-action programs at universities.  In the new case, Fisher v. University of Texas, the Court will consider a white student’s challenge to the admissions policy at the UT Austin which allows race to trump other merit-based factors.  As our own John Yoo recently advocated, the Court should overturn Grutter as a “blemish” on our constitutional law.

Gay Marriage: It’s considered likely that the Court will address gay marriage, although the Justices have not made an announcement yet.  Actually, there are two distinct issues: (1) can Congress define “marriage” for federal law purposes; and (2) can states define marriage as the union of one man and one woman?  The first issue relates to the Defense of Marriage Act (DOMA). There is at least a decent Tenth Amendment argument that DOMA is unconstitutional. If the federal government wants to make certain benefits contingent on being married, so be it, but the feds have to defer to the states to supply the definition of marriage.   Issue (2), which relates to California Prop 8, presents a much greater threat to our constitutional order.  The liberal argument is that the Constitution requires state recognition of same-sex marriage and, therefore, divests states of their historic power over the definition of marriage.  According to the liberal spin, as the Washington Post’s Robert Barnes reports in typically unbiased fashion, the question is “whether society’s growing acceptance of same-sex unions warrants constitutional protection.”  I guess society’s “growing acceptance” is somehow reflected by the 37 states have passed laws defining marriage as limited to a union between one man and one woman.  As I have said before, the liberal argument here is pure judicial activism.

ObamaCare, Part II?  There is at least a possibility that the Affordable Care Act will come back to the Court this term.  The Court is considering a petition by Liberty University to reconsider the University’s challenge to ACA’semployermandate on religious freedom grounds but also as exceeding Congress’s power.  Although the Court often summarily rejects such petitions, it has kept this one under advisement all summer, and now has asked the Obama administration to respond – raising the likelihood that the Court will agree to revisit this law.

Takings.  The case is Arkansas Game and Fish Comm. v. United States.  I described this in an earlier post: the issue is whether government regulations that impose recurring flood invasions constitute a “taking” within the meaning of the Takings Clause, even if the flooding isn’t permanent.

Voting rights.Overlapping with the recent Voter ID controversies are a series of cases challenging Section 5 of the civil rights act, which requires states and localities with a history of discrimination to get federal approval of any changes in their voting laws. The Supreme Court, in a 2009 ruling expressed concern about “serious constitutional questions raised by Section 5’s intrusion on state sovereignty.”  Clearly this is the case for state and local elections.  But even for federal elections, the Constitution gives states the power to define “the times, places, and manner” of choosing congressmen.  Granted Congress has the power to amend such regulations, but that’s very different from forcing states to ask Congress’s permission before changing their voting laws.

Alien Torts.  On Monday, the Court heard argument on the scope of the Alien Tort Statute (ATS), a venerable 1798 law that allows aliens to bring lawsuits in federal court for violations “of the law of nations or a treaty of the United States.”  As far as we know it was enacted to cover very minor gaps in the law, like the assault of a diplomat in the US, or piracy committed by Americans in international waters.  The law was virtually unused until the 1980s when it was revived as a nifty way to use American courts to pursue alleged human rights abusers.  In the new frontier, the international rights bar is arguing that the ATS gives courts jurisdiction over suits that have no connection to the US; that is, cases in which foreign plaintiffs sue foreign defendants over conduct that occurred outside of the US. The case is Kiobel v. Royal Dutch Petroleum, recently discussed on Law Talk.  In Monday’s argument, the Justices showed skepticism of the expansion of the ATS and their questions sought some principle to limit ATS.  Justice Sotomayor seemed inclined to endorse an interpretation put forth by the European Union in an amicus brief.  Fair enough: why shouldn’t the EU guide us on the proper interpretation of a 223 American law?

John Roberts and the Legitimacy of the Court

In Jeffrey Rosen’s latest love letter to the Chief Justice (there have been 3 0r 4 already), he gushes that Roberts’ ObamaCare decision “revealed the chief justice as a master strategist with a nuanced concern for institutional integrity.” Presumably his “masterful” strategy included writing an opinion whose reasoning was so convoluted that it attracted not one other justice (although the 4 liberals concurred in the result). How diabolically clever!

The conventional wisdom now is that Roberts sacrificed his right-wing inclinations to preserve the “institutional legitimacy” of the Court. Suddenly “institutional legitimacy” is an independent doctrine in constitutional law — according to Rosen, it is every bit as important as the text of the Constitution itself: “Justices have broad discretion to pick and choose among competing legal arguments based on a range of factors—including concerns about text, history, precedent, or institutional legitimacy.” Sure, the Framers might have written X, but if you think Y sounds more “legitimate,” then go with Y.

I can’t imagine this sort of nonsense will appeal to many people outside the Beltway. The legitimacy of an institution depends first and foremost on whether it does its job. The job of the Supreme Court is to uphold the Constitution, and thus, to serve as a check against the excesses of Congress. I sincerely hope that Roberts writes a decision next year upholding the Defense of Marriage Act (DOMA) in the name of “institutional legitimacy.”  Don’t hold your breath for more Rosen love letters.

As David Bernstein writes at Volokh: “A Chief Justice getting praise from commenters like Rosen for avoiding getting the Court into a political tangle by strategically changing his vote will in the long-term cause the Court’s legitimacy to suffer.”

Good Question, Mr. Chief Justice!

Ilya Shapiro points out an interesting exchange from the oral argument on ObamaCare.  When the Solicitor General asserted that the Court “has got an obligation to construe [the mandate] as an exercise of the tax power, if it can be upheld on that basis,” the Chief Justice interrupted him, and they had the following exchange:

CHIEF JUSTICE ROBERTS: Why didn’t Congress call it a tax, then?


CHIEF JUSTICE ROBERTS: You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?

GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective. But it is—in the Internal Revenue Code it is collected by the IRS on April 15th. I don’t think this is a situation in which you can say—

CHIEF JUSTICE ROBERTS: Well, that’s the reason. They thought it might be more effective if they called it a penalty.

GENERAL VERRILLI: Well, I—you know, I don’t—there is nothing that I know of that illuminates that, but certainly…

What caused Roberts to adopt the position put forth by the bumbling Verilli?  Speculation continues, but as Ilya suggests, perhaps Roberts was against treating the mandate as a tax before he was for it.

The States Can Block ObamaCare

ObamaCare has passed constitutional muster – so far – but it’s still a long way from implementation.  That won’t happen without the voluntary cooperation of the states, which has been slow to evolve.  The administration is desperately trying to put together a coalition of the coerced and the bribed to get this thing off the ground.

For example: The law gives states “grants” to create healthcare exchanges, the government-run insurance markets that are supposed to make the whole scheme work.  So few states are making progress on the exchanges that HHS has just announced that states can use those grants to cover up to six years of operating expenses, according to Cato’s Michael Cannon.

But wait – aren’t the exchanges mandatory?  The reporters at the NY Times and WashPo tend to describe them as if they were.  In fact, they are not.  Which is why the Times recently ran a scolding editorial declaring that “it is imperative that as many states as possible move aggressively to establish . . . new insurance policy exchanges.”  Of course, if states were truly required to set up the exchanges, they wouldn’t need a nudge from the Times.   As Cannon has explained, there’s no penalty for not setting up an exchange.  Under ObamaCare, the federal government can theoretically create an exchange for a state — except that HHS doesn’t have the money.

Write your governor and your state representatives.  Tell them to just say no to health exchanges.


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