Bad year in front of SCOTUS

[Amberchgo]

The U.S. Supreme Court went out with a bang on Monday, ending its 2013-2014 term with Justice Samuel Alito's majority opinion in Burwell v. Hobby Lobby Stores, Inc., in which the Court held that the Patient Protection and Affordable Care Act violated federal law by placing a substantial burden on the exercise of religion when it required two "closely held" private corporations to cover certain forms of birth control in their employee health plans.

It was a painful legal defeat for the Obama administration—and it was not the only such defeat in recent days. In fact, in the past month alone, the White House has suffered a series of embarrassing losses at the Supreme Court, where it failed to prevail on issues ranging from the scope of the Fourth Amendment to the limits of executive power. To make matters worse, the president lost all but one of those cases by a vote of 9-0. Here's a quick recap of Obama's dismal finish this year at the Supreme Court.

...

In sum, the Obama administration lost big on some of the biggest legal issues of the day, failing to garner even a single vote in cases dealing with prosecutorial overreach, the Fourth Amendment, and executive power.

To say the least, it has been a supremely disappointing performance from the former constitutional law lecturer who now occupies the White House.


http://reason.com/archives/2014/07/01/obamas-disappointing-year-at-scotus


OUCH!

 

[Wrong Element]

A Republican Supreme Court doesn't like the Democratic President.


Color me shocked.

 

[Sean Renaud]

What are the four cases that Obama was embarassed on? I'm only aware of three and one of them is hardly soemthing that Obama should be embarassed about. I would expect him to be proud that cops can't check your cell phone. . .well other than being the President but I imagine everybody in government or law enforcement are upset they still need warrants to check your butthole but I wouldn't count that as an anti-Obama measure by any stretch.

 

[RobDownSouth]

blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah To make matters worse, the president lost all but one of those cases by a vote of 9-0. blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah blah

OUCH!

"A lot of the unanimity is ersatz"

 

[Amberchgo]

What are the four cases that Obama was embarassed on? I'm only aware of three and one of them is hardly soemthing that Obama should be embarassed about. I would expect him to be proud that cops can't check your cell phone. . .well other than being the President but I imagine everybody in government or law enforcement are upset they still need warrants to check your butthole but I wouldn't count that as an anti-Obama measure by any stretch.

Not able to read? There's a link in he OP.

 

[JackHardon]

Ouch

Ouch. Ouch. Ouch. Ouch. For each case?

 

[Sean Renaud]

Not able to read? There's a link in he OP.

Nope. I count on OP's to be able to articulate their point when asked. And to summarize their C&Ps.

 

[Amberchgo]

A Republican Supreme Court doesn't like the Democratic President.


Color me shocked.

That explain the 9-0 decisions?

 

[Sean Renaud]

That explain the 9-0 decisions?

Actually as was explained the other day 9-0 decisions are normal. It's these 5-4 that are really odd and damaging.

 

[RobDownSouth]

Nope. I count on OP's to be able to articulate their point when asked. And to summarize their C&Ps.

You have some high standards there, buddy.

I seriously doubt little Amber has the intellectual firepower to summarize much of anything she cuts-n-pastes. She's not the brightest crayon in the box, knowhutImean?

 

[IrezumiKiss]

You have some high standards there, buddy.

I seriously doubt little Amber has the intellectual firepower to summarize much of anything she cuts-n-pastes. She's not the brightest crayon in the box, knowhutImean?

She's the Super Saiyan form of Jen, essentially.

 

[KingOrfeo]

No, the SCOTUS has a bad year behind it. The GOP has a bad year in front of it -- sure, they'll make more or less the expected gains in Congress for structural reasons, but less rather than more -- the backlash from these SCOTUS decisions is going to cost them votes, especially women's and workers'. Of course the SCOTUS is nonpartisan, but of course it isn't really and the GOP will not only get the blame but deserve it.

 

[unregistered]

 

[KingOrfeo]

That explain the 9-0 decisions?

There's a lot more to that story.

 

[unregistered]

 

[KingOrfeo]

There sure is, Obama has the worst legal advice in history. Probably because he advises himself, and thus has a fool for a client.

*sigh* No, it's not that.

The Supreme Court's Skin-Deep Unanimity

Despite an unusual number of 9-0 opinions this Supreme Court term, there are deep ideological divisions just below the surface.

Garrett Epps

Jun 27 2014, 10:50 AM ET

In 2007, Chief Justice John Roberts told The Atlantic’s Jeffrey Rosen that he hoped to foster "a culture and an ethos that says ‘It’s good when we’re all together.'" Judging by the current term, he has come a long way toward his goal. Of the Court’s 70 cases this term, a whopping 47 have been unanimous. Even if (as seems likely) the final two cases are split, that’s still two-thirds; none of Roberts's previous terms has scored more than 50 percent. In addition, at most 10 cases this term will have been decided by a 5-4 vote, the fewest since 2007.

But the unanimity above refers to results. Equally important in a Supreme Court case is the reasoning on an opinion. A Court's explanation of its decision will create a new precedent and narrow, expand, or overrule old ones. And in reasoning, the Roberts Court is sharply divided.

On one side is the four-justice moderate-liberal bloc: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. On the other is a hard-right gang of three—Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. Roberts and Justice Anthony Kennedy are both very conservative, but unlike the other three, they don't always insist on total triumph, and sometimes make common cause with the moderate liberals.

That’s what happened Thursday in two “unanimous” cases. Nine justices agreed on the result, but they split 5-4 on the reasoning. In both cases, the moderate side wrote the opinion of the Court because Roberts or Kennedy joined it. In both cases, four conservative justices wanted to radically change the law; in both cases, a five-justice majority opted for incremental change.

In McCullen v. Coakley, the Court decided 9-0 that a Massachusetts statute imposing a 35-foot buffer zone around abortion clinics violated the First Amendment. Roberts joined the liberals and wrote the majority opinion. Clinic-entrance statutes, he said, are neutral regulations of conduct, not speech. The state has important interests in preventing congestion and crime and (quoting earlier cases) “protecting a woman’s freedom to seek pregnancy-related services”—in other words, choice. But the means used in Massachusetts—silencing everyone but patients and clinic employees on a large chunk of public sidewalk—went too far.

Roberts's opinion did not overrule earlier cases approving more narrowly drawn protections for clinics. The conservatives, however, were just one vote short of sweeping those precedents away. In a concurring opinion by Scalia, they argued that a buffer zone is aimed solely at “the suppression of speech opposing abortion.” That would be a major shift in the law; it would make any clinic-entrance regulation a “content-based” restriction on protected speech. In First Amendment lingo, that's a fatal diagnosis.

Pro-choice groups are disappointed to lose McCullen, but anyone who read the oral-argument transcript knew the statute would not survive. The question was how Massachusetts would lose. There's a big difference between a defeat and a Waterloo, and Roberts's switch made that difference.

In the second case, it was Kennedy who crossed the line to preserve a narrow 5-4 result. The issue in National Labor Relations Board v. Noel Canning was when, if ever, a president may use his power (under Article II, § 2 cl. 3) to make temporary appointments to fill “all vacancies that may happen during the Recess of the Senate.”

By 2011, years of Republican filibusters had left the National Labor Relations Board devoid of members; to forestall recess appointments, the Republican House refused to allow the Democratic Senate to adjourn for the holidays (under Article I § 5, cl. 1, the two houses have to agree to adjourn). To comply with the Constitution, the Senate held “pro forma” sessions: One hapless member from the D.C. suburbs would drive in, gavel the empty chamber to “order,” then adjourn and head home for eggnog. Obama and his lawyers decided those were not “real” Senate sessions, and used the recess power to name a full complement of members to the board. The rejuvenated board began issuing orders. One of its targets, a Washington cannery, argued that the order was void because the appointments were illegal.

Again, the result was 9-0; Obama’s “pro forma” appointments were void. But the difference in reasoning, again, is huge and consequential. The majority opinion by Breyer (for himself, Kennedy, Ginsburg, Sotomayor, and Kagan) held, quite sensibly, that if the Senate says it’s in session, the president should back off. But, they added, the recess power is an important one; if the Senate does leave town, the president can make a temporary appointment, even if the “recess” is just an adjournment for 10 days, and even if the office was vacant before the recess began. “The Clause gives the President authority to make appointments during ‘the recess of the Senate’ so that the President can ensure the continued functioning of the Federal Government when the Senate is away,” Breyer wrote; it should be read in accordance with that aim.

No indeed, said Scalia. The clause, like the rest of the Constitution, was not written to make government work, but to cripple it. Presidential inability to fill offices, like other forms of interbranch standoff, “is not a bug to be fixed by this Court, but a calculated feature of the constitutional framework.” This is far-right ideology: Government that works well is a danger to liberty.

Scalia's proposed rule is that the president can only make recess appointments in the brief (a few minutes, usually) annual gap between formal year-long “sessions”; not only that, he can only fill vacancies that also arise during those few minutes or hours. In other words, the clause would be all but meaningless. Now that the Senate can return at a moment's notice, he says, the Recess Clause “is, or rather, should be, an anachronism” like, say, the appendix. It's inflamed now, let's cut it out.

Scalia would like the courts to step into tussles between White House and Capitol that they have previously wisely stayed out of. With one more vote, that cry of “Havoc!” would be law instead of dictum.

On Monday the Court will announce the public-employee-union case, Harris v. Quinn, and the contraceptive-mandate case, Hobby Lobby v. Sebelius. Unanimity in those results is, shall we say, unlikely. But even if the term ends with snarls, we should not underestimate Roberts’ accomplishment. Unanimous results are more durable and useful than 5-4 splits. The chief may in fact be forging the “team dynamic” he spoke of wistfully in 2007. But there are likely to be some brawls in the locker room; even when they agree, these justices are miles apart.

 

[Amberchgo]

*sigh* No, it's not that.

The Supreme Court's Skin-Deep Unanimity

Despite an unusual number of 9-0 opinions this Supreme Court term, there are deep ideological divisions just below the surface.

Garrett Epps

Jun 27 2014, 10:50 AM ET

In 2007, Chief Justice John Roberts told The Atlantic’s Jeffrey Rosen that he hoped to foster "a culture and an ethos that says ‘It’s good when we’re all together.'" Judging by the current term, he has come a long way toward his goal. Of the Court’s 70 cases this term, a whopping 47 have been unanimous. Even if (as seems likely) the final two cases are split, that’s still two-thirds; none of Roberts's previous terms has scored more than 50 percent. In addition, at most 10 cases this term will have been decided by a 5-4 vote, the fewest since 2007.

But the unanimity above refers to results. Equally important in a Supreme Court case is the reasoning on an opinion. A Court's explanation of its decision will create a new precedent and narrow, expand, or overrule old ones. And in reasoning, the Roberts Court is sharply divided.

On one side is the four-justice moderate-liberal bloc: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. On the other is a hard-right gang of three—Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. Roberts and Justice Anthony Kennedy are both very conservative, but unlike the other three, they don't always insist on total triumph, and sometimes make common cause with the moderate liberals.

That’s what happened Thursday in two “unanimous” cases. Nine justices agreed on the result, but they split 5-4 on the reasoning. In both cases, the moderate side wrote the opinion of the Court because Roberts or Kennedy joined it. In both cases, four conservative justices wanted to radically change the law; in both cases, a five-justice majority opted for incremental change.

In McCullen v. Coakley, the Court decided 9-0 that a Massachusetts statute imposing a 35-foot buffer zone around abortion clinics violated the First Amendment. Roberts joined the liberals and wrote the majority opinion. Clinic-entrance statutes, he said, are neutral regulations of conduct, not speech. The state has important interests in preventing congestion and crime and (quoting earlier cases) “protecting a woman’s freedom to seek pregnancy-related services”—in other words, choice. But the means used in Massachusetts—silencing everyone but patients and clinic employees on a large chunk of public sidewalk—went too far.

Roberts's opinion did not overrule earlier cases approving more narrowly drawn protections for clinics. The conservatives, however, were just one vote short of sweeping those precedents away. In a concurring opinion by Scalia, they argued that a buffer zone is aimed solely at “the suppression of speech opposing abortion.” That would be a major shift in the law; it would make any clinic-entrance regulation a “content-based” restriction on protected speech. In First Amendment lingo, that's a fatal diagnosis.

Pro-choice groups are disappointed to lose McCullen, but anyone who read the oral-argument transcript knew the statute would not survive. The question was how Massachusetts would lose. There's a big difference between a defeat and a Waterloo, and Roberts's switch made that difference.

In the second case, it was Kennedy who crossed the line to preserve a narrow 5-4 result. The issue in National Labor Relations Board v. Noel Canning was when, if ever, a president may use his power (under Article II, § 2 cl. 3) to make temporary appointments to fill “all vacancies that may happen during the Recess of the Senate.”

By 2011, years of Republican filibusters had left the National Labor Relations Board devoid of members; to forestall recess appointments, the Republican House refused to allow the Democratic Senate to adjourn for the holidays (under Article I § 5, cl. 1, the two houses have to agree to adjourn). To comply with the Constitution, the Senate held “pro forma” sessions: One hapless member from the D.C. suburbs would drive in, gavel the empty chamber to “order,” then adjourn and head home for eggnog. Obama and his lawyers decided those were not “real” Senate sessions, and used the recess power to name a full complement of members to the board. The rejuvenated board began issuing orders. One of its targets, a Washington cannery, argued that the order was void because the appointments were illegal.

Again, the result was 9-0; Obama’s “pro forma” appointments were void. But the difference in reasoning, again, is huge and consequential. The majority opinion by Breyer (for himself, Kennedy, Ginsburg, Sotomayor, and Kagan) held, quite sensibly, that if the Senate says it’s in session, the president should back off. But, they added, the recess power is an important one; if the Senate does leave town, the president can make a temporary appointment, even if the “recess” is just an adjournment for 10 days, and even if the office was vacant before the recess began. “The Clause gives the President authority to make appointments during ‘the recess of the Senate’ so that the President can ensure the continued functioning of the Federal Government when the Senate is away,” Breyer wrote; it should be read in accordance with that aim.

No indeed, said Scalia. The clause, like the rest of the Constitution, was not written to make government work, but to cripple it. Presidential inability to fill offices, like other forms of interbranch standoff, “is not a bug to be fixed by this Court, but a calculated feature of the constitutional framework.” This is far-right ideology: Government that works well is a danger to liberty.

Scalia's proposed rule is that the president can only make recess appointments in the brief (a few minutes, usually) annual gap between formal year-long “sessions”; not only that, he can only fill vacancies that also arise during those few minutes or hours. In other words, the clause would be all but meaningless. Now that the Senate can return at a moment's notice, he says, the Recess Clause “is, or rather, should be, an anachronism” like, say, the appendix. It's inflamed now, let's cut it out.

Scalia would like the courts to step into tussles between White House and Capitol that they have previously wisely stayed out of. With one more vote, that cry of “Havoc!” would be law instead of dictum.

On Monday the Court will announce the public-employee-union case, Harris v. Quinn, and the contraceptive-mandate case, Hobby Lobby v. Sebelius. Unanimity in those results is, shall we say, unlikely. But even if the term ends with snarls, we should not underestimate Roberts’ accomplishment. Unanimous results are more durable and useful than 5-4 splits. The chief may in fact be forging the “team dynamic” he spoke of wistfully in 2007. But there are likely to be some brawls in the locker room; even when they agree, these justices are miles apart.

Spin as you wish, it's still 9-0.

 

[4est_4est_Gump]

Predictable replies...

 

[4est_4est_Gump]

During their recess...,

Obama will go crazy with pen and phone knowing that every illegal act will be in full force for at least the next year, so lets open up those borders and keep the spigot on full, unless it's oil.

 

[RobDownSouth]

Spin as you wish, it's still 9-0.

Predictable replies...

^^^These pass for "quality rebuttal" from teh whackadoodle right.

 

[4est_4est_Gump]

Predictable hate spew...

 

[RobDownSouth]

How's the job search going, Chief?

Predictable hate spew...

Your calling card.
:nods:

 

[KingOrfeo]

From Salon:

Wednesday, Jul 2, 2014 07:45 AM EDT

Supreme Court’s out-of-control spiral: Ideologues rewriting their own laws

It may be incremental, but make no mistake: This court is using absurd eccentricities to legislate from the bench

David Dayen

John Boehner wants to sue the president for pursuing executive authority without congressional input? He may want to file a copycat suit against the Supreme Court, who have executed plenty of extra-legislative rule making of their own.

On Monday, the court established multiple new distinctions in the law, inventing them largely to satisfy ideological whims. If any branch of government is engaging in de facto legislating and overstepping the bounds of authority, it’s the Roberts court.

As you probably know, the court ruled in the Hobby Lobby case that closely held corporations, where the top five shareholders control more than 50 percent of the company, must be given an accommodation for providing birth control in their employer-based insurance coverage, if they say it violates their religious beliefs. The decision, written by Justice Samuel Alito, explicitly argues companies like Hobby Lobby could be granted the same accommodation as churches and religious nonprofits, where the government effectively provides direct access to contraception coverage. (I didn’t know the court’s majority exhibited such strident support for single-payer healthcare!)

But the ruling also makes a number of novel assumptions. First of all, Alito found that, for the purposes of the Religious Freedom Restoration Act of 1993, corporations are not just people, but people with religious beliefs, granting them the right to free exercise of that religion, which the contraception mandate “substantially burdens.” But Alito clearly worried about a slippery slope, where suddenly religious corporations would ignore all sorts of laws by invoking their conscience. So he drew a completely arbitrary line.

In the opinion, Alito writes, “our decision in these cases is solely concerned with the contraception mandate.” He denies that any other insurance coverage mandate or unrelated employment-based regulation (like anti-discrimination laws) would have to go if it conflicted with the employer’s religious beliefs. He singles out vaccinations, for example, for their worth in stopping the spread of infectious diseases, and concludes that different arguments would result about the means of providing coverage if a religious corporate person objected.

As Kevin Drum notes, this is a very “Bush v. Gore” type of effort, where the majority, as they’re writing the ruling, warn everyone to never use it as precedent. Not only is this not how the law works, the randomness of the distinction makes no sense: Indeed, contraception plays a major role in stopping the spread of infectious diseases!

Justice Alito boiled down all religious sentiment into caring about whether women have too much unauthorized sex. He actually picks and chooses among religions, essentially saying that only beliefs about abortion matter in the religious liberty context. Furthermore, the ruling ignores science, by associating contraception with abortifacients.

Alito splits the baby again by arguing that the opinion only applies to “closely held corporations.” This may not be such a narrow distinction, since 90 percent of all businesses would qualify, and 52 percent of all employees work for them. But the capricious argument again is nonsensical; even the majority admits that, “no known understanding of the term ‘person’ includes some but not all corporations.” A public corporation could certainly sue for the same rights as the Hobby Lobbies of the world, and perhaps win, despite Alito’s claimed intentions.

The other big case decided Monday makes similarly illogical divisions. In Harris v. Quinn, the court ruled that at-home healthcare workers who objected to unions need not pay dues for the collective bargaining done on their behalf – so-called fair-share fees – which, in the case of home healthcare employees in Illinois, has helped them nearly double their salaries. A 1977 ruling known as Abood protects unions from this free-rider problem, saying that public employees who benefit from collective bargaining must contribute to the efforts that produced their contract.

Justice Alito, again writing for the majority, did not overturn Abood. He instead said his ruling only applies to the category of home healthcare workers called “partial public employees,” because they are simultaneously employees to their patients and the state. This effectively maintains that work in the home isn’t real work. But since Alito also added that Abood rested on “questionable foundations,” he appeared to signal future challenges to wipe out that settled law, only temporarily stopping short here.

This has become a familiar pattern for the Roberts court, using an initial ruling to indicate eventual overturning of precedent, and then employing a subsequent case to finish the job. It perhaps makes the court look more moderate and judicious, treading ground carefully to reach their desired end state. But since there’s no real distinction under the law between the initial “signal flare” ruling and the second, deeper one, it amounts to making up the rules as it suits the conservative majority, either for public relations purposes or to better carry out their agenda.

And that’s the real point. The Roberts court has a history, as shown in these recent cases, of basically legislating from the bench, of making idiosyncratic, agenda-driven choices about which parts of laws to uphold and which to strike down. Statutory interpretation is part of the court’s function, but the collapse of the legislative process has granted more power to the court to affect public policy, and they’ve grabbed that opportunity. In this conservative court’s hands, ideological signposts like more freedom for corporations and respect for right-wing legal arguments get preferential treatment, and the law gets twisted to serve those interests. This is hardly an impartial calling of balls and strikes, to paraphrase Chief Justice Roberts from his confirmation hearing.

While Democrats plan to respond to the Hobby Lobby ruling, a regulatory fix like providing the same accommodation for for-profit companies that they do for religious nonprofits could spur another legal challenge. And that brings us right back where we started: with an emboldened Supreme Court, ready to use whatever rationales at their disposal to upend the work of the other two governmental branches.

Dahlia Lithwick calls the Roberts court “the most hands-on hands-off court in America.” You could also call it passive-aggressive. They chip away at decades of established precedent inch by inch, using absurd eccentricities to protect their credibility. This hasn’t worked: a new Gallup poll shows confidence in the Supreme Court at a 40-year low. The public has noticed their lack of principle and willingness to shape the law to their desires of the moment. It’s a perfect example of judicial activism.

 

[unregistered]

 

[cjh]

Spin as you wish, it's still 9-0.

It's not spin.

Vette, and evidently you, can understand it at only at superficial level.