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Supreme Court rules against EPA

EPA-SCOTUS-Examiner

John Siciliano reports: The Supreme Court ruled 5-4 against Environmental Protection Agency pollution rules for power plants Monday, in a blow to President Obama’s environmental agenda.

The majority decision, written by Justice Antonin Scalia, said the EPA has to consider the costs of complying with the rules and sent the air pollution regulations back to the agency.

The EPA rules in question regulate hazardous air pollutants and mercury from coal- and oil-fired power plants, known as the MATS regulations. The regulations went into effect April 16. The utility industry had argued that the rules cost them billions of dollars to comply and that EPA ignored the cost issue in putting the regulations into effect.

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“EPA must consider cost — including cost of compliance — before deciding whether regulation is appropriate and necessary. It will be up to the agency to decide (as always, within the limits of reasonable interpretation) how to account for cost,” Scalia wrote in agreeing with the industry.

The decision will have repercussions for other EPA regulations that are key to Obama’s climate change agenda. The EPA will now have to examine the cost of compliance for the Clean Power Plan, which is at the heart of the president’s environmental agenda. Read the rest of this entry »

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‘The First Amendment is Not Abridged for the Benefit of the Brotherhood of the Robe’

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Symposium: When strict scrutiny ceased to be strict

NW_HB_abrams_070805_289_360_c1At 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.

Justice Scalia testifies on Capitol Hill in Washington

Supreme Court Justice Antonin Scalia testifies before a House Judiciary Commercial and Administrative Law Subcommittee hearing. REUTERS/Kevin Lamarque

“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, goodfriend-of-court faith effort to walk a difficult line. The First Amendment, however, is more demanding than that.

[Check out Floyd Abrams’s book “Friend of the Court: On the Front Lines with the First Amendment” at Amazon.com]

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 »


Breaking: High Court Upholds Mich Affirmative Action Ban

Supreme Court Justice Anthony Kennedy  (AP Photo/Matt Slocum, File)

Supreme Court Justice Sonia Sotomayor (AP Photo/Patrick Semanski)

“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.

Supreme Court Justice Sonia Sotomayor  (AP Photo/Patrick Semansky)

Supreme Court Anthony Kennedy (AP Photo/Matt Slocum)

“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 »


Will: Progressives are Wrong About the Essence of the Constitution

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 writes: In a 2006 interviewSupreme Court Justice Stephen Breyer said the Constitutionis “basically about” one word — “democracy” — that appears in neither that document nor the Declaration of Independence. Democracy is America’s way of allocating political power. The Constitution, however, was adopted to confine that power in order to “secure the blessings of” that which simultaneously justifies and limits democratic government — natural liberty.

The fundamental division in U.S. politics is between those who take their bearings from the individual’s right to a capacious, indeed indefinite, realm of freedom, and those whose fundamental value is the right of the majority to have its way in making rules about which specified liberties shall be respected.

Now the nation no longer lacks what it has long needed, a slender book that lucidly explains the intensity of conservatism’s disagreements with progressivism. For the many Americans who are puzzled and dismayed by the heatedness of political argument today, the message of Timothy Sandefur’s “The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty” is this: The temperature of today’s politics is commensurate to the stakes of today’s argument.

The argument is between conservatives who say U.S. politics is basically about a condition, liberty, and progressives who say it is about a process, democracy. Progressives, who consider democracy the source of liberty, reverse the Founders’ premise, which was: Liberty preexists governments, which, the Declaration says, are legitimate when “instituted” to “secure” natural rights.

Read the rest of this entry »


Pro-affirmative Action Side Mocked by Conservative AND Liberal Supremes

Buh-heeheheehee! Muh-huhuhuhahahahahha. Lemme catch my breath, whew..mm..buhuhuHAHAHAHAheheheee!

Hahahaha….B-b-b-b-b-Buh-heeheheehee! Muh-huhuhuhahahahahha. Lemme catch my breath,  whew..mm..buhuhuHAHAHAHAheheheee! I need a glass of water, give me a minute hahahhahaHAHAHA

Robby Soave reports: Proponents of race-based admissions had a rough time during oral arguments at the Supreme Court this week, as both the conservative and liberal wings of the court humiliated an attorney for the Coalition to Defend Affirmative Action for her faulty reasoning.

Shanta Driver, an attorney for the coalition, got off to a bad start when she said that the purpose of the 14th Amendment was “to protect minority rights against a white majority.”

Associate Justice Antonin Scalia immediately interrupted her.

“My goodness, I thought we’ve — we’ve held that the Fourteenth Amendment protects all races,” he said.

Read the rest of this entry »


What Obama’s Second Term Means for the Courts

A Return to Judicial Activism

ADAM FREEDMAN
8 November 2012

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