Monday Reads: As the SCOTUS churns

165584_600Well, it’s Monday and it feels like a Monday to me.

There are more Supreme Court decisions out today on all kinds of things.I’m going to give you a brief description of the major ones.  It’s hard to top the Marriage Equality ruling and the saving of tax credits for “Obamacare”.  However, a few of them are just as important in their own right.

One of the most stand-out decisions today had to do with voting and voter id.

The U.S. Supreme Court refused to consider letting states require evidence of citizenship when people register to vote for federal elections, rejecting an appeal from Arizona and Kansas.

The rebuff is a victory for the Obama administration and voting- and minority-rights groups that battled the two states in court. It leaves intact a decision by a U.S. agency that blocked the states from requiring proof of citizenship for voters in federal elections.

It’s the second high court defeat on the issue for Arizona. The state has a law that requires evidence of citizenship, but the Supreme Court ruled in 2013 that it couldn’t be enforced when people use a standard registration document known as the “federal form” to register to vote for Congress and the president.

That 7-2 ruling left open the possibility that Arizona could impose its requirements through a different avenue. The court said the state could submit a request to the agency that developed the form, the U.S. Election Assistance Commission, asking it to tell Arizona voters they needed to supply proof of citizenship.

SCOTUS also struck down three provision of the various Three Strikes laws that were designed to penalize “career” criminals. Scalia wrote the majority opinion in this case.

While the country was busy celebrating the Supreme Court’s long-awaited marriage equality ruling, the justices issued another ruling in the Johnson v. United States case that dealt a crucial blow to the prison industrial complex. The SCOTUS ruled that a key provision of the Armed Career Criminal Act, which lengthens the sentences of “career criminals,” is unconstitutionally vague. The ruling paves the way for thousands of prisoners to have their sentences reduced and will cause the private prison industry to lose millions of dollars in profits.

In 1984, Congress passed the Armed Career Criminal Act (ACCA), the law required judges to sentence people to 15 years to life if they have three prior convictions for “serious drug offense” or “violent felonies.” However, what exactly qualified as a “violent felony” was frustratingly vague and was used as a sentence enhancer in many non-violent cases. A “residual clause” in the ACCA allowed third time felons to be sent to prison for any crime that ” presents a serious potential risk of physical injury to another.” That potential risk could include drunk driving, fleeing police, failing to report to a parole officer and even attempted burglary. It seemed to be used as a catch-all sentence enhancer for the sole purpose of throwing people in prison for years longer than they deserved to be. This practice has become increasingly more common as more states allow for-profit prisons in their states.

In the Johnson case, the government used the ACCA to enhance Samuel Johnson’s prison sentence because of a prior conviction of possession of a sawed off shotgun. Johnson argued that he shouldn’t be subjected to a harsher sentence, because the definition of what was considered “violent” was unconstitutionally vague. The SCOTUS agreed with Johnson and issued a 7-1 ruling in his favor.

5888077939_4a120fd991_bAnother finding allows independent panels to redistrict congressional and other political districts.  This could be a key step to stopping the practice of gerrymandering. Arizona’s decision to let independent panels redistrict was declared constitutional.

By ruling that Arizona’s Independent Redistricting Commission is constitutional, the Supreme Court of the United States kicked plutocrat-loving Republicans in the gut.  Justice Ruth Bader Ginsberg wrote the 5-4 majority opinion, joined by Justices Breyer, Kagan, Kennedy and Sotomayer.

The crux of the majority’s reasoning can be found in last paragraph of the ruling.

Our Declaration of Independence,  drew from Locke in stating: “Governments are instituted among Men, deriving their just powers from the consent of the governed.” And our fundamental instrument of government derives its authority from “We the People.” U. S. Const., Preamble. As this Court stated, quoting Hamilton: “[T]he true principle of a republic is, that the people should choose whom they please to govern them.” Powell v. McCormack, 395 U. S. 486, 540-541 (1969) (quoting 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876)). In this light, it would be perverse to interpret the term “Legislature” in the Elections Clause so as to exclude lawmaking by the people, particularly where such lawmaking is intended to check legislators’ ability to choose the district lines they run in, thereby advancing the prospect that Members of Congress will in fact be “chosen . . . by the People of the several States,”

Even though this case got much less attention from the media compared to the health care and marriage equality cases it is in some ways as important as the aforementioned cases.  The reason is it will shape the meaning of vote equality in the years to come. Had the court ruled the other way, frankly, it would have removed the last real hope of stopping the Koch controlled Republicans from rigging elections in their favor.

In one disappointing decision, SCOTUS removed EPA limits on Air Pollution.5631103843_5db90091cb_b

The US supreme court struck down new rules for America’s biggest air polluters on Monday, dealing a blow to the Obama administration’s efforts to set limits on the amount of mercury, arsenic and other toxins coal-fired power plants can spew into the air, lakes and rivers.

The 5-4 decision was a major setback to the Environmental Protection Agency (EPA), and could leave the agency more vulnerable to legal challenges from industry and Republican-led states to its other new carbon pollution rules.

The justices embraced the arguments from the industry and 21 Republican-led states that the EPA rules were prohibitively expensive and amounted to government overreach.

But the EPA pointed out that most plants had already either complied or made plans to comply with the ruling.

“EPA is disappointed that the court did not uphold the rule, but this rule was issued more than three years ago, investments have been made and most plants are already well on their way to compliance,” the agency said in a statement obtained by Reuters.

The EPA “remains committed to ensuring that appropriate standards are in place to protect the public from the significant amount of toxic emissions from coal and oil-fired electric utilities and continue reducing the toxic pollution from these facilities,” the agency added.

Monday’s decision, written by Justice Antonin Scalia, ruled that the EPA did not reasonably consider the cost factor when drafting the toxic air-pollution regulations.

The Clean Air Act had directed the EPA to create rules to regulate power plants for mercury and other toxic pollutants that were “appropriate and necessary”.

images (6)There’s some discussion in legal blogs about a possible softening of the Court in terms of it’s tendency to follow Scalia and Thomas to hard right conclusions.  Are Kennedy and Roberts becoming more moderate or showing a bit more judicial restraint and temperament?  Here’s some analysis by Tom Goldstein writing for SCOTUSBlog.

There is a lot of commentary about the unusually liberal results of this Term.  I thought I would mention a few data points which back up that view of things.

For present purposes, I treat four Justices as sitting to the Court’s left: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.  I treat four Justices as sitting to the Court’s right:  Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.  I treat Justice Anthony Kennedy as the Court’s “center.”

I count 26 cases this Term that were both close (5-4 or 6-3) and ideological (in the sense that they broke down principally on ideological lines, with ideology seemingly an important factor). 

Of the 26 cases, the left prevailed in 19.  Those included the first 9 of the Term.  The right prevailed in 7.

In the 26, a Justice on the left voted with the right a total of 3 times.  In 2 cases, those votes determined the outcome and produced a more conservative result, because Justice Kennedy or one of the conservatives voted for the more liberal result.

In the 26, a Justice on the right voted with the left 14 times.  In 6 cases, those votes determined the outcome and produced a more liberal result, because Justice Kennedy voted for the more conservative result.

I also considered the 10 cases I consider most significant.  Of those, the left prevailed in 8.  Those included the first 7 of the Term.  (I mention the early cases to give a sense of how the results must have appeared inside the Court as the Term went along.)  The right prevailed in 2, both in the final sitting of the Term.

In the 10, no Justice on the left voted with the right; the four Justices on the left voted together in every one of those cases.  A Justice on the right voted with the left 4 times.  Those votes determined the outcome in 2 cases, because Justice Kennedy voted for the more conservative result.

Note that the analysis above is skewed against finding the Term particularly liberal by treating Justice Kennedy as the Court’s “center.”  That is true ideologically, but he is certainly a conservative.  If he were characterized that way for my analysis, the number of defections to the left would be much higher.

By that measure, a Justice on the right voted with the left 25 times (compared with 3 times the reverse happened).  That occurred in all 10 of the 10 major cases (because no Justice on the left voted with the right in any of those cases), and determined the outcome in all of them.

Real Clear Politics also had a take on this. It’s obviously an interesting question to ask given the current hissy fits happening with in movement conservatives who are calling for the essential overthrow of the 5928104071_8f42d73da8_bcurrent court since a few decisions did not go their way.

Conservatives were disheartened by the Court’s rulings Thursday in King v. Burwell and Texas Department of Housing and Community Affairs v. The Inclusive Project. They probably will be disheartened if the Court rules that gay marriage is a constitutional right, which seems likely. I suspect I got the authorship of the Arizona redistricting commission case wrong in my Supreme Court Bingoarticle: the opinion assignments make more sense if Justice Kennedy lost his majority in Din, which would suggest Justice Ginsburg is writing the redistricting commission opinion. That means conservatives may well be disappointed in the outcome of that opinion as well.

Unsurprisingly, conservatives are up in arms about the supposed “selling out” from Chief Justice John Roberts. Their reaction is something along the lines of Obi-Wan’s final words (from Obi-Wan’s point of view) to Anakin Skywalker: “You were the chosen one! It was said that you would destroy the Sith, not join them!”

plenty of today’s “liberal” decisions would have been considered downright reactionary in the 1960s (or 1970s). Consider the NFIB case, which upheld Obamacare in 2012, while finding that the individual mandate could not be supported by the commerce power. Until 1995, many scholars believed that the Commerce Clause had all but given Congress a general police power; the Lopez decision, which placed the first limits on congressional power in 60 years, was on the outer fringes of even conservative legal theory. NFIB actually reinforces, and to a certain extent expands that decision.

This says nothing of the Court’s holding that there are real limits to the spending clause, which garnered the votes of seven justices. I’m not sure there would have been more than one or two votes for this in the 1960s. By the standards of the 1970s, NFIB was a radically conservative decision, even when the substantive outcome is taken into account. By the standards of, say, the 1920s on the other hand, this was a radically liberal opinion, insofar as it accepts the basic New Deal framework (that there is at least one justice who is prepared to jettison that framework entirely shows just how far to the right the Court has gone).

Or consider the opinion validating Obamacare’s subsidies. While the plaintiffs’ theory of the case was perfectly plausible under current statutory interpretation principles (enough so that several Democratic-appointed lower court judges were cautious when ruling against plaintiffs), it also represented something of a reductio ad absurdum of textualism. If we were to have a debate over textualism in, say, the 1970s, one can imagine a purposivist asking, “So what if there is an obvious drafting error in a section that threatens an entire massive statute? What then?” The fact that conservatives expect the Court to go “full textualist” even in that circumstance – and that even liberal scholars like Abbe Gluck accept the basic textualist framework – again shows how far the debate has moved in the past 30 years.

What about the redistricting commission case? Assuming conservatives lose this one, it’s worth remembering that this position on the elections clause only had the support of three members of the Court in 2000 (when a similar argument was raised in Bush v. Gore); Justices Kennedy and O’Connor avoided the issue and may well have been against it. So even a 6-3 ruling against conservatives here would probably reveal no net shift in the positioning of the Court over the past 15 years. It is just that the expectations for conservatives have shifted.

The article is interesting because it compares some of the different courts over the last 50 years and you can see exactly how illiberal this court still is.5894062539_dff4c78611_b

One more case is worth discussing.  This one will be in the works.  “The Supreme Court on Monday agreed to consider whether the University of Texas’s race-conscious admissions plan is constitutional.”

Two years ago, the court voted 7 to 1 to send the plan back for further judicial view and told the lower court to apply the kind of rigorous evaluation that must accompany any government action that considers race.

“Strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice,” Justice Anthony M. Kennedy wrote.

This will be another interesting case to watch.

What’s on your reading and blogging list today?

 


11 Comments on “Monday Reads: As the SCOTUS churns”

  1. Fannie says:

    Thanks Dak, will be reading these decisions. Was happy to hear the supreme courts will allow Texas Abortion clinics to remain open. Yay.

  2. Sweet Sue says:

    Also, five of the Justices are just dandy with lethal injection.

  3. Sweet Sue says:

    Is there anything that the hard right wants that Scalia and his Mini Me, Clarence Thomas wouldn’t vote for?
    Kitten stomping in a public square? What’s cruel and unusual about that?

  4. RalphB says:

    Stole this from a commenter on the Guardian liveblog but it is actually a pretty good cartoon of the whole mess in Greece:

    The Story of a Company: ACME WIDGETS LTD

    ACME widgets, a family company, ran into some financial difficulty. For too long it had been in the family and after a few years the owners viewed it as their own personal piggy bank. They borrowed too much money and profits went into their pockets.

    But the banks kept loaning them money as they knew ACME Widgets was affiliated with their parent company ACME World Wide and would probably be good for any debt – even when those debts to the whole world looked unsustainable.

    But eventually push came to shove and ACME Widgets needing bailing out. In came ACME World Wide who paid off all the debts to the banks. Wow. Things looked great. The factory workers were happy. And ACME Worldwide also had a fool-proof plan to resurrect the company:

    The answer was clearly to cut back as you only make profit when you spend less than you earn.

    So cut-backs were called for. First, they suggested that the company rather than using big machines, down-size all their machines, this meant that their famous widgets could only be produced at half the rate. When this brilliant policy failed to increase profits by reducing outlay, they had another idea – sell half the machines!

    Unfortunately, selling half the machines (which were by now already smaller) further impacted production and thus profits.

    At this stage, a meeting of was called by the parent company (ACME World Wide) and a decision was made that rather than invest they would continue with the policy of cut-backs and it seemed entirely logical that seeing as production was down that less staff were needed!

    So the logical step was to let go of those staff paid the most – this would reduce the most costs. Naturally.

    Unfortunately, once the clever staff were fired, there was chaos on the shop floor and many people died in accidents. Widget machines have sharp blades you see.

    These losses were viewed as a totally normal sacrifice to make in the plan that was clearly working. The only solution must be to make further cut-backs they concluded. A few sacrifices on the way to profitability were only to be expected they concluded. This was the hard path that must be taken.

    And on and on it went until one day, the factory was burnt to the ground.

    ACME World Wide, the parent company, had a meeting and released a statement to the press saying that clearly their widget division had failed to implement their policies correctly. That they would use the same policies in all of their failing divisions.

    • NW Luna says:

      “The hard path that must be taken” always seems to hit the ordinary people the hardest. And of course ACME World Wide can imagine that there’s anything wrong with their policies, so they keep on doing the very things that drive a company into the ground.

  5. NW Luna says:

    Dak, really nice post on SCOTUS and their decisions over the years. Hardly a liberal court! I’m just glad we’ve had some reasonable decision from them recently.

    RBG’s intellect really shines in her opinion writings!