The Affordable Care Act, which the Supreme Court partially upheld in 2012 when it issued one of the most important decisions in decades, has spawned more litigation — topped by two consolidated cases that could become the justices’ biggest ruling on religious liberty in years. The oral arguments regarding the law’s contraception coverage mandate, slated for March 25, will be a rematch between two lawyers who squared off in the first health law challenge — Obama administration Solicitor General Donald B. Verrilli Jr. and former Bush administration Solicitor General Paul Clement. The key question is whether privately owned businesses can be hit with […]
Stuart Taylor, Jr. Stuart Taylor, Jr. facebook tweet post 5-402.22.1411:21 AM ET Can This Man Make Gay Marriage Legal Everywhere? Justice Anthony Kennedy has more power than any president or justice in history to decree the law of the land. Agree with him or not, there is something wrong with this picture. Federal district courts around the country have been ordering states at a surprisingly rapid clip to endorse (not merely tolerate) gay marriage in the months since the Supreme Court passed up an opportunity to do so last June. This may give the impression that the judges are merely […]
The Supreme Court famously upheld most of the Affordable Care Act in June. But in a year or two we may see another riveting Supreme Court drama growing out of the health law, this one driven by the passionate objections of many religious employers to the so-called contraceptive mandate. An Obama Administration regulation requiring that many employers — including religious employers — provide insurance without copays or deductibles that covers a wide range of contraceptives, including sterilization, as part of women’s preventive health care. Religious groups decry it as an extreme attack on their freedom. Already, more than 40 lawsuits have […]
The Affordable Care Act, which the Supreme Court partially upheld in 2012 when it issued one of the most important decisions in decades, has spawned more litigation — topped by two consolidated cases that could become the justices’ biggest ruling on religious liberty in years. The oral arguments regarding the law’s contraception coverage mandate, slated for March 25, will be a rematch between two lawyers who squared off in the first health law challenge — Obama administration Solicitor General Donald B. Verrilli Jr. and former Bush administration Solicitor General Paul Clement. Continue reading the column here.
If you think that the Affordable Care Act has surmounted all of the major legal attacks its opponents could come up with, think again. Critics of the federal health law have only begun to fight, although most of their battles are decidedly uphill. The pending challenges to the law, and related regulations, range from the Goldwater Institute’s claim that it gives the Independent Payment Advisory Board unconstitutionally broad powers over Medicare services and payments, to the more than 35 lawsuits by religious employers attacking a Department of Health and Human Services rule that requires them to provide their employees with […]
By agreeing today to hear challenges to President Obama’s 2010 health care law, the Supreme Court set the stage for a decision — probably in late June and in the midst of the presidential campaign — that could be among its most important in decades.
The case, which will probably be argued in March on a date still to be announced, is especially momentous because it not only will determine the fate of President Barack Obama’s biggest legislative achievement but also will cast important light on the Supreme Court’s future course under Chief Justice John Roberts on issues of federal government power.
The central issue — but not the only important one — is whether Congress exceeded its constitutional powers to regulate interstate commerce and to levy taxes when it adopted the so-called “individual mandate” at the heart of the health care law.
That provision would require millions of people starting in 2014 to buy commercial health insurance policies or pay financial penalties for failing to do so.
The court also agreed to decide a challenge to the Affordable Care Act’s provision essentially requiring states greatly to expand their Medicaid spending.
The court made clear that if it decides to strike down the individual mandate or Medicaid provision, it will also decide which of the 975-page law’s hundreds of other provisions should go down too, by divining whether Congress would have wanted some or all of them to be effective even without the voided provision or provisions.
Finally, the court agreed to decide whether — as one federal appeals court ruled — the litigation surrounding the individual mandate must be deferred until 2015 because of the 1867 “Anti-Injunction Act,” which bars courts from striking down tax laws before they take effect.
"Terrible things [are] sure to happen," including many "murders, robberies, and rapes."
That was dissenting Justice Antonin Scalia’s dire prediction on May 23, when by a 5-to-4 vote the Supreme Court sort-of-ordered California to reduce its prison population of about 150,000 by 37,000 as a remedy for "cruel and unusual" denial of medical care to inmates.
Thirty-seven thousand hardened criminals loosed among us! Soaring rates of murders, robberies, and rapes!
I don’t think so. For two reasons.
First, 37,000 prisoners are not going to be released anytime soon, if at all, as a result of this decision. Lost in the noise was the majority’s strong suggestion that the lower court extend from two to five years California’s deadline for reducing its prison population. Also drowned out was the majority’s hope that the state may find ways to fix prison medical care with no mass release at all.
Second, while several thousand prisoners have already been released early and thousands more will be, many or most of these will be minor, nonviolent, non-dangerous drug offenders and the like who should never have been given long prison terms in the first place.
This is not to deny that some of those released will commit violent crimes. People released from prison after serving their time often commit violent crimes. It’s called recidivism.
Nor is this to deny that the dissenters in the prison release case, Brown v. Plata, made some strong points, especially as to the flaws in the lower court decision – by three of the most liberal activist judges in the country – that the majority nominally affirmed.
Some conservatives plausibly argue that Solicitor General Elena Kagan would be the kind of liberal activist justice that they deplore.
There is plenty of material to support that claim — and also some material that cuts against it — in the tens of thousands of pages of documents involving Kagan’s work in the Clinton White House from 1995 to 1999 that are being released in batches.
And there are more manifestations of liberal ideology in the memos that Kagan wrote in 1987 and 1988 as a law clerk for Thurgood Marshall, a liberal activist justice who had — before taking the bench — been the most accomplished lawyer of the 20th century.
Not to mention Kagan’s efforts — much-decried by Republicans — to exclude military recruiters from Harvard Law School’s career services facilities as a protest against the law excluding gays from the military.
Still, Kagan’s nomination — unlike last year’s nomination of then-Judge Sonia Sotomayor — has been received with good will bordering on enthusiasm by some leading conservative academics.
Part of the reason is that Kagan’s brand of liberalism appears to be less aggressive in terms of social-engineering ambitions and less doctrinaire than that of some other possible Obama nominees.
But the main reason is that these pro-Kagan conservatives see in the former law professor and Harvard Law School dean a quality they consider quite rare in liberal academia, a place that some conservative professors characterize as rife with a closed-minded condescension toward unfashionable ideas that is all the more irksome coming from people who style themselves to be paragons of open-minded reflectiveness.
The federal court decision last Thursday holding unconstitutional the 1993 "don’t ask, don’t tell" policy that excludes openly gay people from the military may well presage a Supreme Court ruling in 2012 killing that policy once and for all. Unless Congress kills it first. The main reason: public assertions by both Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, and President Obama that the anti-gay policy is not now necessary for unit cohesion-the reason given in 19
The federal court decision last Thursday holding unconstitutional the 1993 "don’t ask, don’t tell" policy that excludes openly gay people from the military may well presage a Supreme Court ruling in 2012 killing that policy once and for all. Unless Congress kills it first.
The main reason: public assertions by both Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, and President Obama that the anti-gay policy is not now necessary for unit cohesion-the reason given in 1993 for excluding openly gay soldiers-and undermines military readiness.
The tradition of judicial deference to military and congressional judgments on military matters, which was cited by previous federal court decisions in favor of "don’t ask, don’t tell," offers little support for a discriminatory policy that the military’s civilian and uniformed leaders no longer defend and, indeed, seek to repeal. Especially when one House of Congress has already voted to repeal it, as the House of Representatives did in May.
To be sure, many in the military disagree with Obama. These include Marine Corps Commandant Gen. James Conway, who opposes any repeal, and to some extent the chiefs of the Army, Navy, and Air Force, who have urged a go-slow approach. But Conway retires this month. And Obama is Commander-in-Chief of the Armed Forces.
The outcome was never in doubt. But the narrowness of the 63–37 margin by which the Senate confirmed Elena Kagan as Supreme Court’s 112th justice this afternoon would stun a Rip Van Winkle who had slept through the rising partisan rancor that has poisoned judicial confirmations at all levels in recent years.
The vote in 1993 to confirm Justice Ruth Bader Ginsburg—who had a considerably more liberal-activist background than Kagan—was 96 to 3. The votes to confirm Justice Stephen Breyer in 1994, Chief Justice John Roberts in 2005, and Justice Sonia Sotomayor last year were 87–9, 78–22, and 68–31, respectively. (With the 50-year-old Kagan joining Ginsburg and Sotomayor, there will be three women on the court for the first time ever.)
Of the five new justices to arrive between the stormy 52–48 confirmation of Clarence Thomas in 1991 and that of Kagan, only Bush nominee Samuel Alito had a smaller margin than hers. That was 58–42, in 2006. Only four Democrats supported Alito, and at least one of those has expressed regret.
Democrats accuse the 36 Republican Senators who voted no on Kagan (as did Democrat Ben Nelson of Nebraska) of simple obstructionism, for opposing a well-qualified, relatively moderate nominee.
Indeed, many experts predict that Kagan may move the court’s ideological balance marginally to the right. While calling herself politically “progressive,” she is widely seen as less liberal than the man she replaces, 90-year-old Justice John Paul Stevens.
“They do not like the fact she is genuinely committed to judicial restraint rather than enshrining the Republican agenda in the Constitution,” Senate Judiciary Committee chairman Patrick Leahy complained during the three-day, off-and-on floor debate.