Scalia’s Poorly Worded Comment Has Merit

Real Clear Politics

Justice Antonin Scalia ‘s dreadfully worded comments last week during oral argument about racial preferences in college admissions understandably offended many people. But what he was obviously trying to say made an important point that had nothing to do with racism — a charge hurled at Scalia by people including Harry Reid, the Senate Democratic leader, who once again wallowed in shameless demagoguery.

Debate: The Equal Protection Clause Forbids Racial Preferences in State University Admissions

Intelligence Squared Debate via YouTube
Stuart Taylor, Jr. in a Dec. 3, 2015 debate.

In an Oxford-style Intelligence Squared debate held on December 3, 2015, Roger Clegg of the Center for Equal Opportunity and I argued for the proposition that “The Equal Protection Clause forbids racial preferences in state university admissions.” You can watch video of the debate at IntelligenceSquaredUs.org or via Intelligence Squared’s YouTube channel. The transcript may be read online at IntelligenceSquaredUS.org.

Court Shows Judicial Restraint, Rejects Threat to Obamacare Subsidies

DecodeDC (WKBW.com)

WASHINGTON, D.C. – Six Supreme Court justices Thursday came down for common sense and judicial self-restraint by rejecting, over bitter dissents, a legal challenge that had threatened to cripple President Obama’s Affordable Care Act in 34 states. Because the court sided with the president, Obamacare will continue in effect with no change from the current pattern of distributing to many millions of low-and-middle-income people in all 50 states the premium subsidies (in the form of tax credits) that make health insurance affordable for many or most of them.

Why Did The Supreme Court Uphold The Health Law’s Subsidies?

Interview with Kaiser Health News

The Supreme Court Thursday upheld a key part of the 2010 health law – tax subsidies for people who buy health insurance on marketplaces run by the federal government. KHN’s Mary Agnes Carey discusses the decision with Stuart Taylor Jr., of the Brookings Institution, and KHN’s Julie Appleby.

Supreme Court Sides with Universities and Members of Oversight Board

Newsweek

Although the Supreme Court’s 5-4 ruling in favor of gun rights is getting most of the attention during its busy, final day before a three-month recess, there were several other significant rulings. Here are the highlights:

– The justices ruled by 5-4 that the University of California’s Hastings Law School can deny official recognition, funding, and campus facilities to a Christian student group that excludes openly gay students and others who will not follow the group’s religious tenets from obtaining leadership roles.

Justice Ginsburg’s majority opinion, with Justice Kennedy joining the four liberals this time, stressed that the Christian group was seeking “a preferential exemption” from Hastings’s policy of recognizing and assisting only student groups that “open eligibility for membership and leadership to all students.”

Justice Alito’s dissent, joined by the three other conservatives, complained that that the principle underlying the majority’s decision was “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” The case was Christian Legal Society v. Hastings College of the Law.

– The court struck down as an invasion of presidential power a key provision of the 2002 Sarbanes-Oxley law, which was designed to prevent corporate accounting scandals like those that had caused the collapse of Enron and WorldCom.

The now-voided provision provided an unusual two-level protection against removal for members of the newly created Public Company Accounting Oversight Board. It provided that neither the Securities and Exchange Commission nor the president could dismiss board members without some “cause.”

Leahy Proposal to Avoid 4-4 Ties: It’s About Timing

Newsweek

Senate Judiciary Committee Chairman Patrick Leahy has floated the idea of passing a new law to allow a retired Supreme Court justice to sit on a case in which a current justice has recused, to avoid 4—4 ties.

This proposal, reported on June 16 by National Law Journal’s Blog of Legal Times based on an interview with Leahy, who said he had drafted a bill and would probably introduce it, would be “a major shift in how the Court operates,” the blog said.

Here’s the BLT report. Leahy’s idea raises interesting questions and there is much to be said both for and against it.

But why is it popping up now? And why was Senator Orrin Hatch, R-Utah, so quick to tell the blog that his initial reaction was negative?

It has been widely known for many decades that recusals can produce 4-4 ties, an outcome regarded as a waste of the Court’s time because a tie vote creates no Supreme Court precedent, leaving the lower curt decision undisturbed, as though the justices had never studied the briefs, heard arguments, and cast their votes.

Leahy said that he got the idea of enlisting retired justices to avoid 4—4 votes from soon-to-retire Justice John Paul Stevens, who suggested it during a meeting.

Hmmmm. It’s not hard to see why Stevens–who is still sharp at age 90 and appeared to be torn about his decision to retire – might like to keep his hand in now and then.

As for Leahy, he is well aware that the only living justices who have already retired are David Souter and Sandra Day O’Connor.

How GOP-appointed Justices Shift Left

The Dallas Morning News

Justice John Paul Stevens, who in most portrayals has migrated from the center of the court when appointed by President Gerald Ford in 1975 to its left flank, has told several reporters that his ideology has not really changed much. Rather, according to Stevens, he has remained about where he always was, while newer and younger appointees have pushed the court to the right.

The record suggests otherwise. Like many of us, this extraordinarily intelligent, self-effacing gentleman, who turned 90 on April 20, may be kidding himself a bit about his own consistency.

Like some other Republican-appointed justices in recent decades – Harry Blackmun and Sandra Day O’Connor and, to a lesser extent, David Souter , Warren Burger and Lewis Powell – Stevens has become markedly more liberal during his years on the court. Meanwhile, no Democratic-appointed justice has become substantially more conservative over time. This helps explain why, despite the fact that Republican presidents have appointed 12 of the last 15 justices, the court itself has never – or, at least not yet – made the dramatic right turn that many reporters and commentators have repeatedly proclaimed. Indeed, the court’s rulings have remained left of the center of general public opinion on most (though not all) of the biggest issues.

What explains the asymmetry in justices’ evolution? More on that below. First, some facts about Stevens and other leftward-moving justices.

Seen in his early years as an idiosyncratic loner given to writing separate opinions joined by no other justice, Stevens was never a solid conservative. But he joined conservatives on ideologically charged issues, including racial affirmative action, the death penalty, rights of criminal defendants, freedom of speech and government funding of abortion. Since about the mid-1980s, however, he has taken positions markedly to the left of where he started on these and other big issues.

Judicial Factions And The Constitution

National Journal

The news from the March 2 oral argument in the Supreme Court’s biggest pending case was that the five conservative justices seem poised to make the Second Amendment right to bear arms applicable to state and local gun controls, as well as federal. In the process, they will strike down the unusually strict handgun bans in Chicago and Oak Park, Ill. — probably in June.

But debate about the gun case, McDonald v. City of Chicago, has ranged far beyond guns. It has spawned an alliance of convenience among distinguished scholars in the progressive and conservative-libertarian camps.

Both have filed amicus briefs that take the gun-rights side while mainly seeking to expand other rights as well.

The detailed constitutional arguments show with unusual clarity why efforts to expand rights — whether favored by conservatives or liberals, or both — typically boil down to a bare-majority judicial faction using highly debatable theories to override democratic governance.

Many of the briefs in the gun case urge the Court to revive the 14th Amendment’s open-ended but long-moribund "privileges or immunities" clause and use it as a new fount of judicial power to strike down enactments imposed by majority rule. But the privileges-or-immunities alliance breaks down when its members are pressed on which laws should be struck down and which rights should be expanded or created.

Conservative libertarians who want the courts to reject economic regulations stress the considerable evidence that the authors of the privileges or immunities clause wanted to protect property and contract rights as well as gun rights.

More Miranda Idiocy

National Journal

Suppose that your child is being held in a secret location by kidnappers who threaten to kill her within two hours unless they’re paid a ransom of $100,000 that you can’t raise. Suppose further that the FBI has just captured one of the kidnappers.

Would you want the agents to say this? "You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you desire an attorney and cannot afford one, an attorney will be obtained for you before police questioning."

And would you want them to stop asking questions the second the suspect asks for a lawyer?

 

Neither the Fifth Amendment nor Miranda forbids aggressive interrogation to protect public safety.

 

Now imagine a more realistic scenario, along the lines of Al Qaeda’s aborted 1995 "Bojinka" plot: After learning that Qaeda terrorists with virtually undetectable bombs are planning to blow up 12 airliners carrying almost 4,000 passengers very soon, the FBI captures one of them. Would you want him Mirandized?

The questions answer themselves.

Reasonable people disagree about how much coercion interrogators should use to extract potentially lifesaving information from terrorists. (None at all, President Obama unwisely ordered soon after taking office.)

But no reasonable person could doubt that starting out with "you have the right to remain silent" is not the way to save lives.

Yet this is essentially the policy into which the Obama administration has locked itself by insisting that it did the right thing when it read Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, his Miranda rights after only 50 minutes of questioning and a hospital visit.