Below is my column on the unfolding future of the Supreme Court after the confirmation of Justice Neil Gorsuch and the elimination of filibusters in the selection of Supreme Court nominees. For years, commentators have been discussing the timing of the retirement of our older justices, including Justice Ginsburg. There was rising concern when Ginsburg decided to stay on the Court past the midterm mark of the second Obama term. Those concerns have now been magnified and realized with the Trump election and filibuster elimination. Of course, the same concerns are raised by the possible retirement of Justice Anthony Kennedy, the swing vote on the current Court. New rumors have arisen this week about Kennedy. However, of all of the older justices, it is replacement of Ginsburg that could produce the most profound changes for the country.
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Republicans should follow Sen. Barack Obama’s advice and filibuster the president’s SCOTUS nominee.
David Harsanyi writes: Although nothing in his political history suggests magnanimity, Barack Obama may surprise us by nominating one of those moderate-consensus types who would provide some of that national healing he promised us eight years ago. But he’s certainly under no constitutional obligation to do so. He can nominate whomever he pleases in the wake of the vacancy left by Antonin Scalia. And Republicans have plenty of precedent for rejecting his choice.
I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I’m deeply troubled.
You’ll notice, as well, that precedent only matters sporadically. Democrats were uninterested in historical guidance when they were shoehorning a massive generational reform through Congress without any consensus for the first time in history or filling imaginary recess appointments. When it works out for them they transform into strict traditionalists.
Whatever precedent says, if Republicans truly believe Obama has displayed a contempt for the Constitution, they have a moral obligation to reject his choice—whether it’s someone who argues in favor of book banning or enables abusive power. Because we’re not talking about good-faith disagreements over what the Constitution says anymore, we’re talking about a party that believes enumerated powers stand in their way.
Contemporary liberalism is fundamentally opposed to any precedential restrictions that curb “progress.” Wilsonian progressives were skeptical of the Constitution and separation of powers, and so are modern progressives. Only the former had the decency to be honest. So why do we pretend otherwise?
Just like Wilson, Democrats argue that the Supreme Court is holding back many morally advantageous policies. What they do not do, and haven’t done for years, is offer any limiting principles (other than for few incidental partisan policies they happen to support for reasons have nothing to do with individual liberty). For them, process exists solely to further ethical policy (which they don’t believe could possibly be subjective).
Even Donald Trump, who claims to believe America is limping towards extinction, felt the need during the last debate to claimed he would build consensus when applying trade and immigration policy rather than act unilaterally. There is no such inclination, not even rhetorically, on the Left. Just listen to the Democratic Party debates. Bernie Sanders’ litmus test for a Supreme Court nomination is pretty simple: the candidate must support restrictions on the First Amendment. Most Democrats agree.
WASHINGTON (Reuters) – Lawrence Hurley reports: Tensions are building inside and outside the white marble facade of the U.S. Supreme Court building as the nine justices prepare to issue major rulings on gay marriage and President Barack Obama’s healthcare law by the end of the month.
Of the 11 cases left to decide, the biggest are a challenge by gay couples to state laws banning same-sex marriage and a conservative challenge to subsidies provided under the Obamacare law to help low- and middle-income people buy health insurance that could lead to millions of people losing medical coverage.
Many legal experts predict the court will legalize gay marriage nationwide by finding that the U.S. Constitution’s guarantees of equal treatment under the law and due process prohibit states from banning same-sex nuptials.
The four liberal justices are expected to support same-sex marriage, and conservative Justice Anthony Kennedy, the expected swing vote, has a history of backing gay rights.
In three key decisions since 1996, Kennedy has broadened the court’s view of equality for gays. The most recent was a 2013 case in which the court struck down a federal law denying benefits to married same-sex couples.
During oral arguments in the gay marriage case on April 28, Kennedy posed tough questions to lawyers from both sides but stressed the nobility and dignity of same-sex couples.
The healthcare decision is tougher to call. Chief Justice John Roberts, the swing vote when the court upheld Obamacare in 2012, said little during the March 4 oral argument to indicate how he will vote. Read the rest of this entry »
Symposium: When strict scrutiny ceased to be strict
At SCOTUSblog, Floyd Abrams writes: The result in the Williams-Yulee case was a difficult one to predict except that it was entirely predictable that the result would be by a deeply divided Court. It is no surprise that it was a five-to-four ruling, and no surprise at all that the jurists on both sides appear to have been irritated and frustrated by the views of those on the Court with whom they differed. The same had been true in Republican Party of Minnesota v. White (2002), the Supreme Court’s last trek into the muddy constitutional waters that required an assessment of First Amendment issues in the context of judicial elections. That case was not only decided by a five-to-four vote, but one of the five Justices — Justice Sandra Day O’Connor — repeatedly announced after her retirement that she regretted her vote.
“Critics of Citizens United can take no solace from yesterday’s decision, since it is rooted in all respects in the difference between judicial elections and all others. If anything, the more the Court focuses on the special and distinct role of judges as opposed to other elected officials, the more firmly it reinforces its earlier ruling as to the latter.”
The unavoidable problem in the case stems from the reality that if judges are to be elected, they must be allowed to campaign for election. Yet, what they say in their campaigns about what they will do as judges may lead people to doubt their open-mindedness as judges.
[Also see – Williams-Yulee v. The Florida Bar: A Disappointing End by Jonathan Keim]
And when they personally raise money, at least from lawyers and potential litigants before them, it may well lead to the perception of indebtedness on their part to their contributors.
“One need not adopt wholesale Justice Scalia’s final thrust at the majority in the case to admire its beauty: ‘The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.’”
The Florida Code of Judicial Conduct sought to strike a compromise, barring judicial candidates from personally soliciting campaign funds, while allowing their campaign committees to solicit funds for them and allowing the candidates to write thank-you notes to contributors. On its face, it was a perfectly reasonable, good faith effort to walk a difficult line. The First Amendment, however, is more demanding than that.
The problem with the ruling begins with an ostensible First Amendment victory. Seven of the nine members of the Court (all but Justices Ruth Bader Ginsburg and Stephen Breyer) concluded that strict scrutiny should apply, a usual predicate for striking one sort or another of government limitation on speech. Read the rest of this entry »
Justice Ginsburg sings another verse of “Kill the Poor.”
Kevin D. Williamson writes: Ruth Bader Ginsburg, having decided for some inexplicable reason to do a long interview with a fashion magazine (maybe it is her celebrated collection of lace collars), reaffirmed the most important things we know about her: her partisanship, her elevation of politics over law, and her desire to see as many poor children killed as is feasibly possible.
“This is not her first time weighing in on the question of what by any intellectually honest standard must be described as eugenics.”
Speaking about such modest restrictions on abortion as have been enacted over the past several years, Justice Ginsburg lamented that “the impact of all these restrictions is on poor women.” Then she added: “It makes no sense as a national policy to promote birth only among poor people.”
This is not her first time weighing in on the question of what by any intellectually honest standard must be described as eugenics. In an earlier interview, she described the Roe v. Wade decision as being intended to control population growth, “particularly growth in populations that we don’t want to have too many of.” She was correct in her assessment of Roe; the co-counsel in that case, Ron Weddington, would later advise President Bill Clinton: “You can start immediately to eliminate the barely educated, unhealthy, and poor segment of our country,” by making abortifacients cheap and universally available. “It’s what we all know is true, but we only whisper it.”
Ginsburg: Abort the Poor
Let me also join the pile-on.
First, Ginsburg’s view that we don’t want more poor babies is perfectly consistent with a century-old progressive tradition as I explain at some length here. It is simply a restatement of Margaret Sanger’s “religion of birth control” which would “ease the financial load of caring for with public funds . . . children destined to become a burden to themselves, to their family, and ultimately to the nation.” Read the rest of this entry »
“But without checks, democratically approved legislation can oppress minority groups…”
— Supreme Court Justice Sonia Sotomayor
WASHINGTON (AP) —Mark Sherman reports: The Supreme Court on Tuesday upheld Michigan’s ban on using race as a factor in college admissions despite one justice’s impassioned dissent that accused the court of wanting to wish away racial inequality.
The justices said in a 6-2 ruling that Michigan voters had the right to change their state constitution in 2006 to prohibit public colleges and universities from taking account of race in admissions decisions. The justices said that a lower federal court was wrong to set aside the change as discriminatory.
“This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.”
— Supreme Court Justice Anthony Kennedy
The decision bolstered similar voter-approved initiatives banning affirmative action in education in California and Washington state. A few other states have adopted laws or issued executive orders to bar race-conscious admissions policies. Read the rest of this entry »
The LA Times’ David Savage reports: Police officers may enter and search a home without a warrant as long as one occupant consents, even if another resident has previously objected, the Supreme Court ruled Tuesday in a Los Angeles case.
“Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it.”
— Justice Ginsburg
The 6-3 ruling, triggered by a Los Angeles Police Department arrest in 2009, gives authorities more leeway to search homes without obtaining a warrant, even when there is no emergency.
The majority, led by Justice Samuel A. Alito Jr., said police need not take the time to get a magistrate’s approval before entering a home in such cases. But dissenters, led by Justice Ruth Bader Ginsburg, warned that the decision would erode protections against warrantless home searches. The court had previously held that such protections were at the “very core” of the 4th Amendment and its ban on unreasonable searches and seizures.
A Return to Judicial Activism
Tuesday’s election victory means that President Obama will have four more years to reshape the federal judiciary. While it remains to be seen whether he can achieve any legislative victories in the face of Republican opposition, there is little doubt that he will, for the most part, get to appoint the judges of his choice.
Four justices on the Supreme Court are in their mid- to late seventies now: Ruth Bader Ginsburg, Antonin Scalia, Anthony Kennedy, and Stephen Breyer. With past as prelude, we can expect any Obama nominees to be reliably liberal in the mold of his two appointments from the first term, Justices Elena Kagan and Sonia Sotomayor. At a minimum, the president will likely replace the aging liberals Ginsburg and Breyer with younger models. But it’s also possible that Kennedy or Scalia, or both, could leave the bench during the next four years, presenting Obama with an opportunity to forge a liberal majority on the Court.
An invigorated and expanded liberal bloc on the Court could undo many important precedents. The Court’s decisions, for example, protecting speech rights of corporations (Citizens United v. FEC), school choice (Zelman v. Simmons-Harris), and the right to bear arms (District of Columbia v. Heller and McDonald v. Chicago) were all decided on 5–4 votes. Challenges to Obamacare and other recent regulations are likely to present the Court with major decisions on religious liberty and federalism over the next few years.
The president’s reelection also has profound implications for the lower courts. Obama will begin his second term with about 90 vacancies to fill among 874 federal judgeships; he has already appointed 126 judges. By the time his second term is over, Obama will probably have appointed over 300 judges and may approach the 379 appointed by Bill Clinton. Notably, this includes at least three judges of the Court of Appeals for the D.C. circuit—the court that hears most appeals of the decisions of federal agencies and, thus, one of the few institutions that can limit or block the administration’s regulatory overreach. But with Obama poised to fill three vacancies on this important court, its liberal wing will be greatly strengthened.
Unlike Supreme Court nominees, who receive intense media scrutiny, lower-court picks often fly under the radar. Obama’s true inclinations can be seen in nominees like Goodwin Liu, an outspoken proponent of using the “living Constitution” to create fundamental rights to welfare benefits; or Louis Butler, who, as a justice on the Wisconsin Supreme Court, “offered ill-reasoned, liability-expanding decisions in cases involving medical damage caps and ‘collective liability’ for lead paint manufacturers,” as Carter Wood reported at Point of Law.
To be fair, Liu and Butler were not confirmed. They demonstrate, however, Obama’s inclination to appoint liberal activists—the kind of judges who can advance progressive goals without the bother of legislation. Now, freed from any concerns about reelection, Obama has little reason not to put forward aggressively liberal judges in the hope that some of them will get through. And no doubt some will.
Adam Freedman is a contributor to Ricochet. His book, The Naked Constitution: What the Founders Said and Why It Still Matters, is published by Broadside Books.
via City Journal