Supreme Court

Eliminating the Filibuster Makes the Senate More Democratic, Not Less

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Apparently we needed more evidence that everyone in politics now holds the exact opposite positions on every process issue that they did for the entire eight years of the Obama presidency.

In 2013 the Democrats were fed up with Republicans’ obstruction of Obama’s judicial nominees, so they changed the rules of the Senate to only require a simple majority to stop debate and proceed to a vote, down from the usual 60.

Republicans condemned the move as against the character of the chamber, and anti-republican. They were right, in a sense.

Since Democrats now hold a 48-vote minority in the Senate after President Trump was elected, more than enough to block his Supreme Court nominee, both parties switched sides. Republicans eliminated the 60-vote threshold and confirmed Neil Gorsuch to the Court with 54 votes.

Loss of Scalia Spares Unions Another Damaging Blow

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It is difficult to quantify the impact on the nation of the recent death of Supreme Court Justice Antonin Scalia. Adored by conservatives/originalists, and reviled by progressives and the “living Constitution” crowd, Scalia was not only arguably the greatest legal mind of his generation, but one of the most brilliant and articulate legal scholars in all of America history. Combining rapier wit with a towering intellect, he shaped the legal thinking of conservatives and liberals alike in the judiciary.

In recent years many of the most controversial rulings handed down by the Supreme Court have come in the form of 5-4 rulings, typically with Justice Anthony Kennedy being the swing vote. The loss of Scalia leaves the Court with eight justices, increasing the likelihood of 4-4 decisions that, rather than establish constitutional law precedent, leave issues unsettled and keep in place lower court rulings.

On Scalia Vacancy, GOP Should Follow Democrats’ Example

“The Constitution is not a living organism…It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.” ~ Supreme Court Justice Antonin Scalia

At about 8:45PM last Saturday night, I grabbed my favorite blanket and the remote and sat on the couch to watch the fireworks that were sure to be on display in the rancorous GOP presidential debate. I’d had a wonderful, news-free day out with my wife, and was not really in the mood to watch the debate, but I felt it was my obligation as a citizen, preparing to exercise my constitutional privilege to vote, to listen to each man make the case for their candidacy. I was gratified to watch as, unbidden, my 17, 15, 12, 11, and 6-year old children joined me.

Moments after the candidates had been introduced, the moderator asked his first question, and that was when I first learned of Scalia’s death. It was like a kick to the gut. My eyes opened wide in shock and I let out an audible gasp of dismay, and my eyes watered. Though Clarence Thomas edged out Justice Antonin Scalia as my favorite Supreme Court justice, it is inarguable that Scalia has been the anchor of the conservative wing of the court. His loss is devastating and cannot be overstated. His jurisprudential brilliance and his sharp wit were legendary, and even though he spent most of his career on the Court in the minority, he had more influence in the minority than his lesser colleagues had in the majority. Such was the high quality of his legal reasoning.

Supreme Court Justice Antonin Scalia Dies, Unleashing an Election Year Earthquake

Supreme Court associate justice and giant of US politics and constutional law, Antonin Scalia, 79, has died of apparent natural causes in Texas.

According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.

Widely considered to be an “originalist”, Scalia actually used a “textual” interpretation of the Constitution, relying on the plain reading of the text as written to rule on cases. This interpretation placed him as one of the most conservative justices on the Court, and his intellect and integrity will make him impossible to replace.

It is no exaggeration to say that Justice Scalia was the most consequential jurist of the past 35 years. A persistent, pugnacious and persuasive advocate for textualist statutory interpretation and originalist constitutional interpretation, he had an outsize effect on his colleagues, the court and the course of the law. More than anyone else, Justice Scalia is responsible for the renaissance of these interpretive methodologies and the displacement of “living constitutionalism” and reliance upon legislative history.

He certainly won’t be replaced by President Obama.

How Might the Supreme Court Rule on Obama’s Executive Amnesty?

The Supreme Court agreed this morning to take the case of Texas and 25 other states who sued the federal government over the Obama administration’s unilateral executive action to limit deportations of certain illegal immigrants. The program was halted by the Fifth Circuit Court of Appeals in November over the costs to the states resulting from the program, not its inherent (un)constitutionality.

Obama authorized the DAPA program after Congress rejected a similar legislative proposal to defer deportations for children brought here by their parents…and those parents themselves. That separation of powers argument is the main problem with the program, as I’ve argued before.

Although it’s not explicit in the Constitution, the intent of the separation of powers was for Congress to write federal policy and the President to enact it. The President doesn’t get to write his own policy if Congress refuses to do as he wishes. This Supreme Court decision may end up ruling on that very broad issue, or it could rule on the merits of the DAPA program.

Some 2016 Candidate Responses to the Marriage Ruling are Absurd, Even for Conservatives

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Not a single Republican candidate for president in 2016 agrees with the Supreme Court ruling overturning state laws barring same-sex couples from marriage rights. That much is unsurprising, with the reactions ranging from “That’s terrible, but it’s the law now” to “WHARGARRBL THE END IS NIGH” to the (sort of?) refreshing “Fine, but let’s depoliticize marriage.” But some have gone even further, calling for everything from judicial term limits to defunding the Court. These kind of reactions are absurd, anathema to conservatism, and should disqualify their proponents from serious consideration for their party’s nomination.

An Inartfully Drafted Law, Indeed: Obamacare Upheld

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In the wake of The Supreme Court wrangling language to uphold Obamacare yesterday, many opinions happened. From Chief Justice Roberts being declared a fake conservative who hates the rule of law, to Justice Scalia achieving the title of “Most Metal” SCOTUS judge, people and pundits are still processing what it means that our highest court in the land has ruled to keep a law that — and make no mistake about this — will continue to not work and therefore be an economic and logistical disaster, be very expensive, and be very, very hated. (And, for those kids posting .gifs of Obama as the cool kid for “winning”, please do some research. He’s won nothing. Nor have you.)

Anyway, let me just pile on with an opinion of my own, and it might be slightly in defense of Roberts because I maybe, kinda, can see what he’s doing. But by doing anything, he’s doing what he says he doesn’t want to do. I know. Let me explain…

I agree with that Cato piece up top when it says:

Afraid that ObamaCare as written would throw the sickest patients out of their health plans a second time, the Court rewrote ObamaCare to save it—again. In doing so, the Court has sent a dangerous message to future administrations: If you are going to violate the law, make sure you go big.

The Supreme Court Will Overturn Gay Marriage Bans, But Not Because They Discriminate Against Gays

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After the oral arguments finally took place this week, almost everyone expects the Supreme Court to overturn state bans on same-sex marriage at the end of their session in June. But there may be a surprising reason why they do so that has nothing to do with discrimination against gays and lesbians.

The majority of the oral arguments dealt with the 14th Amendment “equal protection” argument that same-sex couples deserve the same access to the civil (not religious) institution of marriage that “traditional” opposite-sex couples do. It’s a compelling argument that declares the dignity of committed gay and lesbian couples is no less than straight couples. But it’s not what might clinch the majority vote on the court.

Roberts: “I’m not sure it’s necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”

Fifth Amendment Challenge Against USDA’s “Raisin Taking” Makes It To The Supreme Court

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California raisin farmer, Martin Horne, has been battling a Depression era U.S. Department of Agriculture regulation for over a decade. Horne says that the 1937 revision of the Agricultural Marketing Agreement Act amounts to a violation of his Fifth Amendment protections, and is nothing short of government theft.

The Act gave birth to the Raisin Administrative Committee and the National Raisin Reserve ( yes, these are real things), and allowed them to confiscate a portion of raisin crops each year in an effort to stabilize raisin prices. The regulations are (surprise!) convoluted in that they don’t permit taking of crops from growers (producers) of grapes, but from handlers who dry and package raisins.  Horne is both.

In 2001, Horne claimed he was not subject to the USDA’s raisin taking, but they demanded 47% of his crop. When he refused, they slapped him with a $700,000 fine.  Horne has been navigating the court system since.

In 2013, the Supreme Court booted the challenge back to the Ninth Circuit, which ruled that the Fifth Amendment’s “Taking Clause” was not applicable in the case of raisins, and if it were ( ?) handlers were compensated by the controlled pricing on the raisins allowed to be sold by the Raisin Administrative Committee.

Romney Data Scientist: Americans View Marriage, Abortion Differently


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United States Supreme Court Justice Ruth Bader Ginsburg, who may or may not have been separated at birth from Dana Carvey’s “Church Lady” character from Saturday Night Live, may have signaled how she’ll decide Hollingsworth v. Perry (covered here by Travis) when she recently characterized the Court’s ruling in Roe v. Wade as somewhat reactionary and hurried.

Americans would be broadly disappointed, argues former Romney 2012 chief data scientist and Target Point Consulting vice president and research director Alex Lundry, if the Court bases its Hollingsworth ruling on Ginsburg’s feelings about the Roe decision. It’s not that Lundry believes the Court shouldn’t be insulated from popular opinion. But when you set aside the substantive and legal differences between the two cases and the policy issues which they embody respectively, Americans fundamentally view gay marriage and abortion in different ways.

He writes in The Daily Caller, looking at opinion polling and demographic data from a number of sources:

A clear majority of the country favors providing same-sex couples with the ability to marry, while opinion on abortion has remained closely divided for almost 40 years. A March poll by ABC News and the Washington Post found that 58% of Americans support gay and lesbian Americans’ legal right to wed — a record high. That majority will likely grow into a broad-based consensus in the not-too-distant future, as polls reveal that more than four out of five voters under 30 support legalizing same-sex marriage.


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