June 27th, 2012 at 2:38 pm
A Few More Thoughts on the SCOTUS Obamacare Ruling
I’ll join the scrum on this one, though in a much less organized fashion than either Ashton or Quin. Insulated as it is from direct political pressure, the Supreme Court’s actions are always much harder to predict than those of the other two branches, so I’ll offer a few thoughts rather than predictions:
- The now widely-held belief that Chief Justice Roberts is writing the majority opinion makes me nervous. The positive interpretation is that some or all of Obamacare is going to be struck down and that Roberts — ever-mindful of public perception of the Court’s legitimacy — is writing it to ensure the widest possible acceptance of the ruling. On the other hand, if Justice Kennedy drifted over to the left on this decision, this could be a 6-3 ruling upholding Obamacare, with Roberts switching only so he could write the opinion and blunt the damage done by the majority.
- If the individual mandate is struck down but found to be severable from the broader law, the health insurance market is going to be thrown into absolute chaos. There’s a reason that insurers themselves were lobbying so hard for the mandate — it’s the only thing that backfills the tremendous costs being imposed on them by the rest of the legislation. The combination of an explosion in costs with likely attempts by HHS to enact price controls will put American health care in a death spiral — itself a good reason to find the provision severable.
- I’m of the opinion that, as a political calculation, having only the mandate struck down is the worst possible outcome for Republicans. If the entire law is upheld, then the GOP and the Romney camp get to run the fall campaign on the message that only electing a Republican president and Republican majorities capacious enough to achieve repeal will be sufficient to get rid of Obamacare. If the entire thing is struck down, then the work is done. But the mandate is the most unpopular portion of the law and if the Court strikes it down while leaving all of the popular components (read: the benefits — like prohibiting insurance denials based on pre-existing condtions or guaranteeing eligibility to be on your parents’ health insurance until the age of 26), it’s entirely possible — and perhaps likely — that the public opposition will be defanged while many of the most pernicious effects of the law remain.
- One final thought: Regardless of whether he’s part of the majority opinion or the dissent, I sincerely hope that Justice Thomas uses this historic opportunity to write a separate opinion on Commerce Clause jurisprudence that can be called on by his proteges in years to come.
August 22nd, 2011 at 3:10 pm
Clarence Thomas and the Tea Party
From a must-read profile in the New Yorker on Supreme Court Justice Clarence Thomas:
The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.
Later on, the profiler notes that Thomas – along with other conservatives on the Supreme Court – is poised to overturn the clearest expression of government overreach in a generation: ObamaCare. If that happens, Thomas’ judicial philosophy, and the Tea Party’s importance, will be vindicated.
October 4th, 2010 at 12:51 pm
U.S. Supreme Court is Back in Session
It’s the first Monday in October which means that the Supreme Court of the United States (SCOTUS) is back in session. Uber-liberal constitutional law expert Erwin Chemerinsky is not celebrating the occasion. Instead, he bemoans the conservative ‘take-over’ of the court and sites as evidence the fact that Republican presidents from Nixon to Bush II made a total of 12 appointments to SCOTUS while only two Democrat nominees made it onto the bench. (Bill Clinton appointed Ruth Bader Ginsburg and Stephen Breyer, while Jimmy Carter was faced with no vacancies during his term.)
Chemerinsky, the dean of UC Irvine’s law school, singles out 4 of the 12 appointments (John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito) as proof of the conservative ascendency. But for conservatives a success rate of 33% is hardly a victory; especially when considering that both of President Barack Obama’s SCOTUS appointments replaced Republican nominees, yet didn’t alter the conservative-liberal voting patterns. Gerald Ford appointed John Paul Stevens, a man who ended his tenure as the leader o the court’s liberal bloc. Bush I appointed David Souter, a justice who voted in lock-step with Stevens and the court’s other liberals.
True, Bush I gave us Thomas, and Reagan hit a home run with Scalia, but Reagan also put soul-crushing moderates like Sandra Day O’Connor and Anthony Kennedy on the bench; two people who repeatedly frustrated conservatives on issues across the political spectrum. Ironically, at least to some, is the SCOTUS legacy of Bush II who made solid conservative appointments with Roberts and Alito. That these two often team with Thomas and Scalia (and manage to cajole Kennedy to heed his better angels) is more the result of a historical accident than a carefully executed strategy.
Imagine the kind of country we could be enjoying had Republican presidents from Nixon to Bush I had a conservative justice success rate of 66% rather than 33%. As it is, since at least the Eisenhower Administration (Earl Warren, William Brennan) liberals like Chemerinsky have benefited handsomely from liberal appointments by supposedly conservative GOP presidents.
Tags: Anthony Kennedy, Antonin Scalia, Clarence Thomas, constitutional law, Eriwn Chemerinsky, John Paul Stevens, John Roberts, Ruth Bader Ginsburg, Samuel Alito, Stephen Breyer, U.S. Supreme Court
July 9th, 2010 at 1:28 am
Thomas Concurs
Any reader familiar with Supreme Court Justice Antonin Scalia knows his professional reputation is etched with the cuts of (seemingly) a thousand harshly worded dissents. In fact, they are so clear and compelling there’s a book called Scalia Dissents that catalogues some of his most pointed opinions.
Justice Clarence Thomas takes a different approach. His most intriguing opinions usually come in the form of concurrences, agreeing with the conservative majority’s result, but not its process. The most recent example was his unchallenged concurrence to the Chicago gun rights case (McDonald v. City of Chicago). In it, the Court’s clearest thinking – and best writing – justice observed that “due process” of the 14th Amendment guarantees nothing more than the process due a person before taking his life, liberty or property.
In other words, the government can deprive a person of any one or all three, it just needs to establish a scheme for doing so.
Thus, if it’s true that there are certain fundamental rights – like the 2nd Amendment’s guarantee to carry a weapon for self-defense – that cannot be infringed by states and localities, conservatives and liberals will have to look somewhere other than the due process clause to protect them. Justice Thomas found the mechanism in the 14 Amendment’s privileges or immunities clause. Not only does it fit with the intent of the amendment’s framers, it boasts the honor of not confusing the process of depriving rights with the substance of those rights.
All lawyers should strive to be so helpful.
June 28th, 2010 at 6:54 pm
War on Many Fronts
These days, it seems like war is only the extension of politics by other means; except that even the means are political.
Last week, President Barack Obama minimized conservative harrumphing after firing General Stanley McChrystal by appointing General David Petraeus as his replacement. Though politically savvy, CFIF Senior Fellow Troy Senik correctly notes that reassigning Petraeus may be a pyrrhic victory since most of the conditions for successfully implementing his counterinsurgency strategy are missing. When he gets in country, Petraeus’ biggest enemy won’t be the Taliban or a corrupt Karzai government; it’ll be trying to deliver a victory conservatives can stomach on a timetable and troop count demanded by liberals.
Heading back to Washington the war on rationality gets even rougher. This morning four out of five Supreme Court right-of-center justices voted to extend the Second Amendment’s guarantee of an individual’s right to own a gun to the several states. The result produces two effects. First, complete government bans on gun possession are unconstitutional. Second, eight of the current justices are now on record supporting a liberal theory of constitutional jurisprudence: Substantive Due Process. Only Justice Clarence Thomas opted for a textually supported, historically rooted commonsense reading of the Fourteenth Amendment. Since no one tried to dispute his reasoning, it can be assumed that everyone accepted his conclusion – they just didn’t like his premises.
The only element these storylines have in common is one man bearing quiet witness to the power of clear thinking. While the political class may be unable to sustain a coherent framework for addressing pressing issues, it is a comfort knowing that at least some of those they appoint are capable – and willing – to tackle important matters with precision and daring.
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