For The Washington Post, George Will writes: Two 5 to 4 decisions this week, on the final decision day of the Supreme Court’s term, dealt with issues that illustrate the legal consequences of political tactics by today’s progressives. One case demonstrated how progressivism’s achievement, the regulatory state, manufactures social strife and can do so in ways politically useful to progressives. The other case arose from government coercion used to conscript unwilling citizens into funding the progressives’ party.
“Twice this week the court played its indispensable role as constable, policing portions of this forest where progressivism has produced government guilty of gratuitous bullying.”
Under the 1993 Religious Freedom Restoration Act (RFRA), any government action that substantially burdens religious practices will be subject to strict judicial scrutiny to determine if it, rather than some less intrusive measure, is necessary to achieve a compelling government interest. The Affordable Care Act, as supplemented by regulations, requires for-profit employers to provide health-care coverage that includes all 20 Food and Drug Administration-approved birth control methods.
“…more and more decisions are made by unelected and unaccountable executive-branch ‘experts’ exercising vast discretion.”
These include four that prevent a fertilized egg from being implanted in the uterus. Some persons consider this tantamount to abortion and oppose these abortifacients for religious reasons. Why did Congress, having enacted RFRA, write this clearly incompatible birth control mandate? Congress didn’t. Read the rest of this entry »
Heather Mac Donald: The Supreme Court’s Schuette Decision Exposes the Absurdity of Racial-Preferences JurisprudencePosted: May 8, 2014
For City Journal, Heather Mac Donald writes: In a victory for common sense, the U.S. Supreme Court ruled in late April that voters could require colorblind admissions to their state’s public universities without running afoul of the Constitution. Several of the justices arrived at this seemingly self-evident conclusion via tortured routes, however, and Justices Sotomayor and Ginsburg rejected it. Their opinions reveal the counterfactual condition of race jurisprudence today, while also unwittingly providing a rationale for knocking down academic racial preferences entirely. Sotomayor’s long, impassioned dissent opens a disturbing window into her racialized worldview and offers an example of what might be called the black-studies-ification of elite discourse.
[See Heather Mac Donald’s book: The Burden of Bad Ideas: How Modern Intellectuals Misshape Our Society at Amazon.com]
The roots of the recent decision, Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights . . . By Any Means Necessary (BAMN), were planted in 2003, when the Court upheld the use of racial admissions preferences by the University of Michigan’s law school. Preference opponents responded with a ballot initiative to amend the state constitution, prohibiting Michigan’s government from discriminating against, or according preferential treatment to, any individual or group based on race, gender, or national origin. The campaign over the initiative, Proposal 2, was highly visible and hard-fought, focusing primarily on the measure’s effect on admissions to the state’s public universities. Proponents of preferences, led by BAMN, argued that Proposal 2 would drastically reduce minority enrollment at the University of Michigan and that it was a thinly veiled excuse for racism. Voters rejected those arguments and passed the initiative with 58 percent of the vote in 2006. BAMN then sued to overturn Proposal 2 as unconstitutional. The group lost in federal district court but won in the Sixth Circuit U.S. Court of Appeals. Proposal 2’s backers appealed to the Supreme Court. 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 »
“I’ve worked hard to make sure that women have access to the right kinds of health care, and it’s their choice, not their employer’s choice,”
— Sen. Patty Murray (D-Wash.)
“Sitting in that court today, it was stunning to me to recognize that nine people are going to make that decision — and will decide for a long time to come — whether women have to question when they go to work every day what the shareholders of that company’s religious views could be.”
Well, that problem wouldn’t exist had Congress not given HHS the power to mandate that employers provide specific products and services to their employees in the first place. Prior to the passage of ObamaCare, most employers already provided some form of health insurance to their employees, and most of those already covered birth control, albeit with co-pays. Those employers who object to abortifacients found other health plans, but that doesn’t prevent men and women from acquiring birth control of their own volition — or finding other work based on competitive compensation packages, for that matter. This became an issue only when Democrats forced the creation and participation of a command economy in health insurance and gave bureaucrats the power to issue regulations such as the HHS contraception mandate, for no rational reason except as political demagoguery. Read more…Hot Air
The Supreme Court heard oral arguments Tuesday in a critical religious freedom case. The court will decide whether the government may compel family-owned companies to provide employees with health insurance that covers no-cost birth control and other medical procedures that violate the owners’ religious beliefs.
The plaintiffs argue that a 1993 federal law on religious freedom extends to private, for-profit businesses…Read more….CNSNews
Completely unrelated, but too good not to share. A Patty Murray Freudian slip:
The media narrative is false. Here’s the truth.
Gabriel Malor writes: This week, the Supreme Court will consider whether businesses and their owners must choose between paying millions of dollars in fines and violating their religious beliefs. The outcome of the combined cases, popularly styled Sebelius v. Hobby Lobby, will shape how government interacts with religious Americans for decades to come. It is no overstatement to say that an adverse outcome would banish from public life many Americans who wish to go on operating their businesses in accordance with their religious beliefs, as they have for decades.
But a funny thing happens if you pick up a newspaper covering these cases. The leftist papers do not mention the substantial monetary burden put on religious business owners to violate their consciences. The papers do not mention that contraception was both inexpensive and widely available before the contraception mandate, and still is. The papers omit to mention that it isn’t the businesses who have radically changed, but the mandates from government.
Quite simply, if you read a newspaper to find out about the contraception mandate cases, you will read lies. Here are the top six.
Lie 1. The contraception mandate cases are about women’s rights.
The New York Times’ Adam Liptak puts it right there in the first sentence: “The Supreme Court on Tuesday will hear arguments in a case that pits religious liberty against women’s rights.” This could not be further from the truth. Women will have the same constitutional rights to acquire and use contraception regardless of whether Hobby Lobby wins or loses. More than that, they’ll have the exact same rights as they had before the contraception mandate was a gleam in Sec. Sebelius’ eye. What women won’t have is the right to force other people to pay for their contraception, but that has never been a right recognized by the Supreme Court.
In the Bizarro World of the newspapers, not paying for someone else’s contraception is the same thing as prohibiting them from purchasing and using them themselves. This is an obviously false equivalence, but one that leftists are bent on telling themselves. No matter how many times you point out that the business owners in these cases aren’t preventing their employees from purchasing and using contraception, a smug leftist will smile and say “but women’s rights, you see,” as if these magic words excuse the lie.
Despite anti-gun hysteria following shootings, the trend is toward expanding gun rights.
For USA Today, Glenn Harlan Reynolds writes: This past weekend, the Tennessee Law Review held a symposium on “New Frontiers in the Second Amendment.” It was a follow-up, of sorts, to a symposium held almost 20 years ago, and boy, has a lot changed since then.
“Overall, the trend of the past couple of decades seems to be toward expanding gun rights, just as the trend in the 1950s and 1960s was toward expanding free speech rights”
In 1995, Second Amendment scholarship had been almost entirely nonexistent for decades, and what little there was (mostly written by lobbyists for gun-control groups) treated the matter as open-and-shut: The Second Amendment, we were told, protected only the right of state militias (or as former Chief Justice Warren Burger characterized them, “state armies“) to possess guns.
Lower court opinions, to the extent they existed, were largely in agreement, and the political discussion, such as it was, generally held that anyone who believed that the Second Amendment might embody a judicially enforceable right for ordinary citizens to possess guns was a shill — probably paid — for the NRA. Whatever the Second Amendment meant, it did not, we were told, protect a right of individuals to possess firearms, enforceable in court against governmental entities that infringed on individuals’ gun possession.
But then came a wave of scholarship, much of it by eminent constitutional scholars ranging from William Van Alstyne, to Laurence Tribe, to Sanford Levinson, toRobert Cottrol, exploring the original purposes and understanding of the Second Amendment. By the turn of the millennium, it was well-established among scholars that the Second Amendment was intended to protect an individual right to arms, one that would be enforceable in court against infringements by states, municipalities and the federal government.
[Glenn Reynolds is the author of The New School: How the Information Age Will Save American Education from Itself look for it at Amazon]
Letting people tote their guns around on their hips sounds dangerous. But think again.
Adam Winkler writes: What’s the best way to minimize the number of guns on California’s streets? That’s the question confronting gun control supporters after this month’s ruling by the U.S. 9th Circuit Court of Appeals striking down San Diego’s restrictions on carrying handguns in public. That case was brought by gun owners who applied for but were denied permits to carry concealed weapons.
[Adam Winkler is a professor of law at UCLA School of Law and the author of “Gunfight: The Battle Over the Right to Bear Arms in America”. It’s available at Amazon]
San Diego will undoubtedly appeal the decision in the hope of saving its restrictive policy for awarding concealed carry permits. Lawmakers who support gun control might want to consider another option: Rewrite state law to allow people to carry guns openly.
For many in the gun control community, that will seem like a crazy idea. State law bans ordinary civilians from carrying openly displayed firearms. And gun control advocates don’t want to see more gun enthusiasts showing up at Starbucks or the local movie theater with guns hanging on their hips like Gary Cooper in “High Noon.”
Yet if they don’t want too many guns in public, open carry may be the answer.
Robby Soave reports: More troubling details have emerged in the case of a libertarian student club’s lawsuit against against the University of Michigan: Not only did UM administrators refuse to give the group funding for an anti-affirmative action event, but they also gave liberal students funding for a pro-affirmative action event just days before.
UM collects mandatory fees from students in order to distribute money to student groups for events and speaker fees–about $300,000 each year. However, administrators claim to have a blanket policy against using the money for political or religious events. On this basis, they denied the Young Americans for Liberty its request for $1,000 to cover the cost of bringing anti-affirmative action activist Jennifer Gratz to campus.
The Daily Caller previously reported on YAL’s lawsuit, which claims that the university provided funds to other political and even religious groups as recently as 2010.
For decades, Supreme Court justices have been rewriting key parts of our governing document.
Richard A. Epstein writes: The United States Constitution is at its core a classical liberal document. But over the last hundred years, much of it has turned into a progressive text thanks in large part to Supreme Court justices who interpret it creatively, thereby skirting the laborious amendment process of Article V. Here, I address one major, if underappreciated, cause of the problem—the fine art of making its critical words and letters just disappear through the Court’s imaginative application of its power of judicial review. This constitutional disappearing act does not take sides in the longstanding debate over judicial restraint and activism. In some cases, it unduly expands judicial power; in other cases, it wrongly contracts it.
The two best illustrations of how this process works are found in the Eighth Amendment and in Article 1, which sets out the federal government’s taxing power.Cruel and Unusual PunishmentsThe Eighth Amendment reads in full: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Its use of the passive voice creates an interpretive ambiguity. Does the amendment bind only the federal government or does it bind the states as well? Using the word “excessive” twice in one 16-word sentence is not a model of clarity.
But for these purposes, the most critical word is “punishments.” The letter “s” has disappeared during the arduous process of constitutional interpretation. Just Google the phrase “cruel and unusual punishment,” and 1,740,000 entries come up. Add the “s” and that number drops by 80 percent to 330,000 entries, most of which refer to punishments without the “s.”
The importance of the slip is evident from the 2012 Supreme Court decision Miller v. Alabama, which struck down a mandatory lifetime sentence for a fourteen year-old guilty of murder. In writing her opinion, Justice Elena Kagan included the “s” in quoting the clause. But during the analysis, that “s” disappears, thereby transforming the constitutional text:
The Eighth Amendment’s prohibition of cruel and unusual punishment “guarantees individuals the right not to be subjected to excessive sanctions.” That right, we have explained, “flows from the basic ‘precept of justice that punishment for crime should be graduated and proportioned’ ” to both the offender and the offense.
Justice Kagan faithfully references earlier cases that take her position. But the wealth of precedent does not conceal the major shift in constitutional focus. The prohibition against “cruel and unusual punishments” conjures up a list of punishments that should be rejected because they are cruel, no matter what the offense. The issue of proportionality never arises.
That interpretation makes sense because this clause is lifted word for word from the English Bill of Rights of 1689, after it accuses the deposed King James II of inflicting “illegal and cruel punishments.” The clause outlaws the rack, the thumb-screw, drawing and quartering, and other fiendish activities. In no sense did it outlaw the death penalty. Nor could that reading be sensibly made of our own Constitution, whose Fifth Amendment contains references to the death penalty in connection with due process, grand jury presentments, and double jeopardy.
NYT House Editorial on HHS Mandate Cases: Obscuring the Obama Administration’s Hostility to Religious-Liberty ConcernsPosted: December 2, 2013
Bench Memos at NRO (my new favorite source for judicial news & analysis) on Nov. 27th, Ed Whelan posted a good rebuttal of the NYTimes House Editorial on HHS Mandate cases. It’s a point-by-point takedown that I recommend for any health care consumer, reporter, NYTimes skeptic, religious observer, or like myself, underinformed non-attorney spokesperson.
1. NYT charges that “the real assault on religious freedom [is] the assertion by private businesses and their owners of an unprecedented right to impose the owners’ religious views on workers who do not share them.” It contends that the HHS mandate is necessary to “preserve an employee’s right to make her own decisions regarding birth control and not to conform to the religious beliefs of her employer.”
But the plaintiff businesses and owners are not trying to “impose [their] religious views on workers.” If they succeed in refusing to comply with the HHS mandate, their employees would remain entirely free to obtain and use the full range of FDA-approved contraceptives and to “make [their] own decisions regarding birth control.” All that the businesses and owners are objecting to is the Obama administration’s insistence on dragooning them to provide insurance coverage that violates their religious beliefs.
If the Obama administration wants to marginally increase the already easy access that employees have to contraceptives, it can do so through alternative means that don’t violate employers’ religious-liberty rights. That’s exactly what the standards set forth in the Religious Freedom Restoration Act contemplate.
2. NYT asserts that the Religious Freedom Restoration Act “was not intended to cover profit-making corporations,” and it observes that the Supreme Court “has never recognized that a secular corporation is an entity capable of engaging in religion.”
As a textual matter, RFRA extends its religious-liberty protections to all “persons,” and relevant federal law (as the third paragraph of this post explains more fully and as even the dissenter in the Seventh Circuit acknowledged) defines “persons” to include corporations. If a law were to require all restaurants to serve pork and to be open on Saturdays, is it really NYT’s belief that a kosher deli run by a Jewish family would not even have a claim under RFRA if the family has incorporated the deli?
Ann Althouse writes: Discussed previously here, linking to an Above the Law item that is now titled “Justice Clarence Thomas Speaks!” but was previously titled “Justice Clarence Thomas Speaks — And Oh What A Speech!”
I’m going to guess that the “And Oh What A Speech!” part got dropped not because ATL wanted to back away from expressing enthusiasm but because it’s not a speech. It’s an interview. And part of what’s good about it is that the interviewer 7th Circuit Judge Diane S. Sykes is excellent. Read the rest of this entry »
Of all the conflicts to roil our educational system, this one is pretty absurd
Nick Gillespie writes: In the latest example of small-mindedness plaguing our educational system, schools around the country are attempting to ban costumes and candy on what is surely one of most kids’ favorite days of the year. The excuses range from vague concerns about “safety” to specific worries about food allergies to—get this—fears of breaching the wall of separation between church and state.
But whatever the motivation, the end result is the same as what Charlie Brown used to get every time he went trick-or-treating: a big old rock in the candy bag. What sort of lesson are we teaching our kids when we ban even a tiny, sugar-coated break in their daily grind (or, even worse, substitute a generic, Wicker Man-style “Fall Festival” for Halloween)? Mostly that we are a society that is so scared of its own shadow that we can’t even enjoy ourselves anymore. We live in fear of what might be called the killjoy’s veto, where any complaint is enough to destroy even the least objectionable fun.
Consider Sporting Hill Elementary School in Pennsylvania. Earlier this month, the school sent parents a note explaining that wearing Halloween costumes was was canceled because, well, you know, “safety is a top priority.” A spokesperson further explained, “We recognize that the education about, and celebration of, seasonal festivals is an important aspect of the elementary setting…[but] we must do so in a manner that is safe and appropriate for all children.” You’d think it would be easy enough to craft basic guidelines on what’s safe – only fake blood, no trailing ghost or ghoul fronds that might get tripped on– but such a simple task is apparently beyond the powers that be in Sporting Hill. Read the rest of this entry »
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.
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.
George F. Will writes: The marble friezes above the Supreme Court chamber depict 18 great lawgivers, including Moses, Solomon, King John and William Blackstone. Come Tuesday, as the bemused — or so one hopes — justices listen to oral arguments in a case from Michigan, they might wonder why Lewis Carroll is not included. He would have relished the Alice-in-Wonderland argument the justices will hear, which is as follows.
Although the U.S. Constitution’s 14th Amendment says “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws,” the following provision of Michigan’s Constitution violates the equal-protection guarantee: No public university, college or school district may “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
Yes, in Tuesday’s Through-the-Looking- Glass moment, the court will be urged to declare that Michigan’s ban on unequal treatment violates the U.S. Constitution’s equal-protection clause. The U.S. Court of Appeals for the 6th Circuit —divided 8 to 7, with five dissents — has said just that, citing what is called the political-restructuring doctrine. Read the rest of this entry »
Ted Cruz, traitor to his class
By Rich Lowry
Henry Adams said that politics is the systematic organization of hatreds. For the left, over the past year it has seemed at times to be the systematic organization of hatred of Ted Cruz.The freshman senator is not the first Texan to be so honored. In fact, the state isn’t holding up its end if, at any given moment, it isn’t throwing onto the national scene at least one Republican reviled by the other side.
The party’s highest-profile Texans, George W. Bush and Rick Perry, tended to match inarticulateness with cowboy swagger and lend themselves to mockery as intellectual lightweights. Bush went to Yale and Harvard Business School, yet no one naturally thinks of him as an Ivy Leaguer. The two Lone Star State governors played into the left’s stereotypes so nicely that if they didn’t exist, Gail Collins would have had to make them up.
Cruz is different — a Princeton and Harvard man who not only matriculated at those fine institutions but excelled at them. Champion debater at Princeton. Magna cum laude graduate at Harvard. Supreme Court clerkship, on the way to Texas solicitor general and dozens of cases before the U.S. Supreme Court.
Cruz is from the intellectual elite, but not of it, a tea party conservative whose politics are considered gauche at best at the storied universities where he studied. He is, to borrow the words of the 2009 H.W. Brands biography of FDR, a traitor to his class. Read the rest of this entry »