Editorials and Opinion
Protecting Endangered Species Under the Commerce Clause: People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service (American Constitution Society Blog, 09/25/15)
Jason Rylander, Defenders of Wildlife: "Every single court to consider the question – including the Fourth, Fifth, Ninth, Eleventh, and D.C. Circuits – has upheld the federal government’s constitutional authority to protect wildlife through the ESA. But last year, District Court Judge Dee Benson of Utah disagreed, and so the Tenth Circuit will weigh in on what had, until now, been settled law. As I argued in an amicus brief for Defenders of Wildlife and five other national conservation groups, the Tenth Circuit should reverse."
Playing Whack-a-Mole with the Endangered Species Act (American Constitution Society Blog, 09/24/15)
Bruce Myers & Jay Austin, Environmental Law Institute: "To date, a wolf, a toad, two fish, a fly, and a collection of “cave bugs” have successfully carried the banner of the Endangered Species Act (ESA) against a series of constitutional challenges. On Monday, the Tenth Circuit will hear oral arguments ... on whether the Act is unconstitutional as applied to the endangered Utah prairie dog. PETPO has implications for nearly every federal environmental law, and for other laws enacted on the basis of Congress’ authority to pass legislation that is necessary and proper for regulating interstate commerce.... From 1997 to 2011, six appellate cases spanning five circuits rejected similar challenges. ... What remains crystal clear, however, is that Congress is owed a great deal of deference when it enacts environmental or other legislation under its commerce power. ... it is difficult to see how any fair measure of deference afforded to Congress would result in anything other than a reversal of the district court’s anomalous decision."
How Obama has jeopardized the future of liberalism (Washington Post, 10/09/12)
Plum Line's Jamelle Bouie: if there’s one place where conservatives have had great success, it’s the federal judiciary. ... [Obama has] done little to make a mark on the federal judiciary. ... Some of this is a product of unprecedented obstruction by those same Republican senators.
The Way Forward (Nation, 09/13/12)
Nan Aron: We need to build a bench for the bench. Simultaneously, lawyers, law professors, students, activists and legal commentators need to become significantly more active in monitoring the judicial nominations process and putting pressure on home-state senators and the White House to move that process forward.
We should put forward progressive nominees who are equipped to go toe-to-toe with conservative jurists. ... activists and opinion leaders must make the courts a central issue. ... Individuals and foundations could perform a singularly helpful role by bankrolling legal scholarship and the training of judges; supporting advocacy at the national and state levels; focusing on judicial nominations; and contributing to the development of a progressive constitutional message ...
Kmiec: Why Obama Will Win Health Care Case (America, 06/22/12)
Douglas W. Kmiec: Justice a"Kennedy’s middle of the road legacy is rightly important to him. Whenever the initial blandishments of his right-sided friends has pushed him to the edge, he has stepped back: this is true in everything from the abortion cases to Bush v. Gore, to the interpretation of the clean water act, the compensation for over-regulation of land, and his willingness to re-examine federal habeas rights for detainees—even after first seeming to close the door."
Editorial: Supreme Court tipping scales of partisanship (Philadelphia Daily News [PA], 05/29/12)
"JUST A FEW WEEKS before the U.S. Supreme Court’s hearings in March on the constitutionality of several parts of the Affordable Care Act — a/k/a Obamacare —an overwhelming majority of the nation’s legal scholars predicted that the law would be upheld.... it became clear (and alarming) that the questions of several of the conservative justices simply parroted Republican "talking points" about the legislation, ... that does indeed affect interstate commerce (as in, it represents one-sixth of the nation’s economy). Beyond that, justices revealed some rather wide gaps in their understanding of both how health insurance and the health-care system works — and also how it hasn’t worked for millions of Americans,"
Obamacare isn’t the only target of conservative judges. (The New Republic, 05/04/12)
Jeffrey Rosen: "one of the D.C. Circuit’s judges, Janice Rogers Brown, issued a remarkable opinion in the case, making clear that she vehemently disagreed with the majority’s presumptions. The opinion was notable not only for its anti-statist editorializing, but also because it suggests that the Affordable Care Act will be far from the last federal regulation to be threatened by conservative judicial activism.... made clear her disagreement with the past 75 years of Supreme Court cases directing judges to defer to Congress and the executive branch on economic regulation.... Brown was calling into question “broad-based entitlements,” such as Social Security and Medicare, and the “licensing restrictions” at the heart of regulations passed by the Federal Communications Commission and the Environmental Protection Agency. She concluded by citing Randy Barnett, the intellectual architect of the challenge to the health care mandate, and she reiterated that deferential review of economic regulations “means property is at the mercy of the pillagers.” Brown’s concurrence was joined by Judge David Sentelle, another pillar of the Constitution in Exile movement. But more surprising was the separate concurrence of Judge Thomas Griffith, considered to be the most moderate conservative on the panel. Griffith refused to join his colleague’s “spirited criticism of the Supreme Court’s long-standing approach to claims of economic liberty,” but not because he disagreed with it—he said he was “by no means unsympathetic to their criticism.” "
The Supreme Court’s Bad Precedent: Conservative judges increasingly feel free to inject ideology into their decisions. Don’t just look at what they say, but how they say it. (Slate.com, 04/18/12)
Dahlia Lithwick: Judge Janice Rogers "Brown’s opinion in this week’s Hettinga v. United States follows many of these same rhetorical pathways, calling on the U.S. Supreme Court to revisit its decades-old economic liberty jurisprudence, and put courts back in the business of regulating economic freedom as a “fundamental right.” ...whatever the Supreme Court’s decision regarding Obamacare in June, the net effect of the case has been to illustrate how dramatically the nation’s federal courts have shifted to the right. This shift isn’t evident only in terms of the judiciary’s willingness to embrace long-dormant libertarian ideas, but also in its willingness to wholeheartedly adopt the political language and tone in which these ideas are packaged. Liberals who don’t think of the courts as a political issue should read Judge Brown’s concurrence closely"
Why the Supreme Court Matters (Nation, 04/11/12)
Ari Berman column: "rightward shift of the Roberts Court is especially pronounced today .... The federal judiciary is as important as the Supreme Court— something the Bush administration understood in a way the Obama administration has not. By the time he left office, Bush had appointed a third of all serving federal judges ... Senate Republicans under Mitch McConnell have filibustered Obama’s nominees, ...March 27 marked the thousandth day with a record-high eighty vacancies on the federal bench. Obama’s judicial nominees have waited, on average, five times as long as Bush’s to be confirmed by the Senate. Obama has appointed forty-five fewer justices than Bill Clinton and thirty-six fewer than Bush at similar junctures of their presidencies. Obama could leave office with more judicial vacancies than when he entered."
Editorial | Supreme apprehension (Courier-Journal [KY] , 04/04/12)
"The President, a former professor of constitutional law, is right about this particular case. The Constitution’s “commerce clause” and its grant of taxation powers to the Congress clearly provide authority for a health insurance mandate enforced through tax penalties. To reject that critical provision, let alone to toss out the entire law, would be grotesque overreach and leave no serious alternative but to conclude that the Court was acting on narrow partisan grounds."
Republican Fifth Circuit Pitches A Partisan Tantrum After President Obama Speaks Out About Supreme Court (Think Progress, 04/03/12)
Ian Millhiser: "The United States Court of Appeals for the Fifth Circuit may be the most ideological court in the country. ... Earlier today, however, the Fifth Circuit left the realm of mere ideology and leaped over the line into partisanship....Republican Judge Jerry Smith threw a tantrum: ... As the president explained, “[w]e have not seen a court overturn a law that was passed by Congress on an economic issue like health care” during the modern constitutional era. ... . The Wall Street Journal has a transcript of Judge Smith’s remarks. They are even more overreaching and partisan than previous reports suggest"
Republican Judge Flips Out at Obama (New York Magazine, 04/03/12)
Jonathan Chait: "One such freaked-out conservative is Jerry Smith, who happens to be a Republican-appointed judge:... this is nuts. Obama is not denying the right of judicial review, or threatening to disobey a ruling. He is expressing a legal analysis....Obama was expressing a view that overturning the law would be morally and intellectually wrong, and Smith read his comments as some kind of lawless declaration of a would-be dictator. Gee, why would liberals be worrying that Republican-appointed justices would allow their paranoid ideological impulses to drive their decisions?"
Editorial: The Roberts Court Defines Itself (New York Times, 03/31/12)
"For anyone who still thought legal conservatives are dedicated to judicial restraint, the oral arguments before the Supreme Court on the health care case should put that idea to rest. There has been no court less restrained in signaling its willingness to replace law made by Congress with law made by justices. This should not be surprising. Republican administrations, spurred by conservative interest groups since the 1980s, handpicked each of the conservative justices to reshape or strike down law that fails to reflect conservative political ideology. By the time John Roberts Jr. and Samuel Alito Jr. were selected in the second Bush administration, judicial “restraint” was no longer an aim among conservatives. They were chosen because their professional records showed that they would advance a political ideology that limits government and promotes market freedoms, with less regard to the general welfare."
Editorial: Politics and the Supreme Court (New York Times, 02/05/12)
"The Supreme Court underscored its power to shape American life when it took major cases about the health care reform law, Arizona’s anti-immigrant law and the Voting Rights Act in an election year. But this is not simply a case of the court thrusting itself into politics.
The way these cases developed and made their way to the highest court also illustrates the reverse — how politics shape the court. Each case grows out of a struggle between left and right where politics have pushed the law ... the conservative legal battles of our modern times are being waged by the most powerful, often against the weak and oppressed. They began with a carefully planned and successful effort to reshape the courts to be sympathetic to conservative causes. They are largely aimed at narrowing rights, not expanding them — except where property and guns are concerned."
Supreme effect on 2012 elections? (Politico, 12/13/11)
Steve Frank Chief interpretive officer, National Constitution Center: "When is the last time you can remember that issues fundamental to the structure of our democracy were so manifestly in play? What is the proper division of power between the states and the federal government? (immigration, health care reform); What are the limits of Washington’s power under the Commerce and Necessary and Proper clauses? (health care reform again); How activist should the Supreme Court be and what is its proper role vis a vis the elected branches of government? (immigration, heath care and redistricting – a trifecta!)
If the Citizens United decision, unleashing limitless corporate and union spending on the election wasn’t enough to thrust the Supreme Court into the Election 2012 spotlight, the justices, by accepting the health care, immigration and Texas redistricting cases, have now assured that their role in our democracy will cast a long shadow over the campaign."
ObamaCare Challenge Exposes Conservative Hypocrisy On Federal Power (Talking Points Memo, 12/12/11)
Brian Beutler: "26 conservative state governors and attorneys general are seeking to get the coverage expansion tossed on the grounds that it’s too coercive — an unconstitutional application of the Constitution’s Spending Clause. . . . he challenge in itself exposes the inconvenient fact that the conservative movement has been opportunistically on differing sides of federalism for a long time now. And a favorable court ruling for the plaintiffs would have severe and adverse implications for a number of right wing causes which rely heavily on federal government coercion."
Editorial: Health care reform act a necessary start (Concord Monitor [NH], 11/28/11)
"Two lower court judges appointed by Republican presidents, however, believe the mandate is constitutional, and the high court is likely, if only by a narrow margin, to agree. . . . The Patient Protection and Affordable Care Act is far from perfect. But the alternative - business as usual, or decades of delay as states bumble around trying to address the crisis of health care costs and access on their own - will hurt businesses, add millions to the rolls of the uninsured and make it harder for the United States to compete in a global economy."
EDITORIAL: Health Care Mandate: High Court Should Take Care (Ledger [Lakeland, FL], 11/25/11)
"Silberman, an appointee of President Ronald Reagan and a favorite of conservative legal scholars, succinctly explained why health care is one of those national problems and why full participation is a viable solution for Congress to impose . . . Society has a vital interest in controlling the spread of communicable disease, and, as Silberman's ruling affirms, it's not right to require the insured to foot the bill for the uninsured."
Giving Thanks (Media / Law Edition): On this Thanksgiving holiday, there are many brave people in both journalism and justice who deserve our gratitude (Atlantic, 11/23/11)
Andrew Cohen: "I am thankful for Arvo Mikkanen, the longtime federal prosecutor in Oklahoma, whose nomination to the federal trial bench has been blocked by Republican Senator Tom Coburn. Mikkanen has been waiting more than nine months now just to have his nomination considered by the Senate Judiciary Committee -- and he hasn't uttered a public word of complaint about the process. The Dartmouth- and Yale-educated lawyer would be only the third Native American jurist in the nation's history. He deserves better. . . . I am thankful for the work of 6th U.S Circuit Judge Jeffrey Sutton, the Bush-appointee who voted earlier this year to endorse the constitutionality of the Patient Protection and Affordable Care Act. In a perfect world, he wouldn't be a profile in courage. In our world, he is. . . . I am thankful for Colbert and Stewart, Lithwick and Liptak, the dissents of Justices Elena Kagan and Antonin Scalia and, of course, this year especially, Wickard v. Filburn."
Senate Minority Leader McConnell Signs On To Kagan Recusal Witchhunt (Think Progress, 11/21/11)
Ian Millhiser: "Last week, Sen. Jeff Sessions (R-AL) became the latest GOP lawmaker to fabricate a reason why he thinks Justice Elena Kagan must recuse from the Affordable Care Act litigation. On Friday, Senate Republicans escalated these frivolous assaults on Kagan’s ethical integrity even further — sending a letter signed by Sens. Mitch McConnell (KY), John Kyl (AZ), and Chuck Grassley (IA), the #1 and #2 Republicans in the Senate and the Senate GOP’s top lawmaker on the Judiciary Committee, to Attorney General Eric Holder laying out the exceptionally weak case for Kagan’s recusal"
Editorial: Finally, clarity on health care (Denver Post [CO] , 11/20/11)
"The U.S. needs to expand care to the uninsured and work to rein in health care costs. . . . If the court tosses it out — which, based on our reading of the legal tea leaves, seems unlikely — then Americans will have four months before the 2012 elections to debate how to address the health care crisis and which candidates are best suited to do it. . . . While much of their attention will focus on whether or not the government can mandate people to buy insurance — a provision needed in order to mandate that insurers cover people with pre-existing conditions — that won't be the extent of the court's review."
Inquirer Editorial: Health-care reform isn't going to die (Philadelphia Inquirer [PA], 11/20/11)
"While the high court's conservative bloc has shown no hesitation in issuing activist rulings that have political ramifications, the court must concede that it's not a novel idea to use tax rules to shape societal behavior. . . . What's more, if the mandate did not exist, someone would have to invent it - or some similar mechanism. Insuring most people is the only way to share costs and, thus, make coverage more affordable and available to 32 million citizens now going without health insurance, . . . Just as the Supreme Court must disregard polls, it should not aid partisan efforts aimed at slowing reforms critical to the health of the nation."
No escape from health care (Akron Beacon Journal [OH], 11/19/11)
By Michael Douglas, Beacon Journal editorial page editor: "The reality is, no one exits without encountering the health-care system. In addressing national problems, lawmakers must have room to anticipate, to make forecasts, to exercise political judgment, their authority grounded in their election — by all of us.
At one point, almost in passing, Silberman affirmed this concept, citing what “might well be our most important consideration — to presume acts of Congress are constitutional.” And there resides his appropriate restraint, sticking close to facts and precedent, alert to the authority Congress must have."