The SCOTUS News You May Have Missed
Everyone is rightly buzzing about the Supreme Court's Obamacare decision today (for my take, you'll have to listen to Richard Epstein and me on today's episode of the Ricochet Podcast and tomorrow's installment of Law Talk). But let's take a moment to look at the cases you may have missed in the shuffle and what they may say about a broader trend in the court.
The Court's decisions earlier this week should put to bed the idea that we are living in an era of conservative jurisprudence. In the Arizona immigration case, the Supreme Court struck down most of a state's effort to enforce federal legal standards using its own mechanisms of government. Conservatives generally favor a more robust role for states in our federal system, but here Justice Kennedy and Chief Justice Roberts joined the four liberal Justices to strike down Arizona legislation forbidding illegal aliens from employment.
In the juvenile sentencing case, Justice Kennedy joined the four liberal Justices in striking down a mandatory life sentence without parole for juveniles convicted of certain crimes, even though a high number of states possess such penalties.Here, the Court engaged in the most egregious policymaking, reading the due process clause -- which has never been thought to extend to the imposition of life sentences -- to give it the right to measure whether commonly imposed criminal sentences meets its own mysterious definition of fairness.
Here, despite a 5-4 majority of Justices appointed by Republican presidents, we have a Court reaching decisions that would have warmed the hearts of the Justices of the Warren Court. As I argued in the Wall Street Journal after the Obamacare oral arguments, the Republican revolution in the courts has been something of a bust. Since 1968, Republicans have held the Presidency for 28 years and Democrats for 16. Republicans should have had roughly a 2-1 advantage in picks for the Supreme Court and the lower courts. But when conservatives win on the Court, it is often just by 5-4, and they by no means win the majority of cases as the two examples above demonstrate.
If Obama wins a second term, the decades of Republican effort to change the direction of the courts will end. The four Democrat justices on the Court vote as a block. Three of the Justices will be 80 or older by the end of the next Presidential term. A second-term Obama administration will likely pick two or three new Justices, throwing the Court into a clear liberal majority for many years, one that shows no intention of respecting precedent established under the Rehnquist or Roberts Courts.
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Comments:
Oct '10
Re: The SCOTUS News You May Have Missed
"...you'll have to listen to Richard Epstein and I..."
And "me" - PLEASE. We at Ricochet have come to expect nothing but the best!
Apr '11
Re: The SCOTUS News You May Have Missed
Since the constitution forbids "cruel and unusual punishment" and since this is an ill-defined term, isn't the federal judiciary forced into deciding what it means?
Feb '11
Re: The SCOTUS News You May Have Missed
Roberts has demonstrated that SCOTUS' majority is political, not Constitutional in how it makes decisions. Therefore, we need to treat them politically. Maybe Obama's public intimidations are the right approach...
Mar '11
Re: The SCOTUS News You May Have Missed
John Roberts is a disgrace. He betrayed the Constitution, and he betrayed the founding principles of this country: limited government. Parsing it any other way is just whistling past the graveyard. This ruling is worse than Wickard vs. Filburn. And does anybody honestly believe that this will limit the Commerce Clause in any meaningful way? Hell no.
May '11
Re: The SCOTUS News You May Have Missed
Professor Yoo,
Any comments on the vetting of Roberts by GWB?
Oct '11
Re: The SCOTUS News You May Have Missed
I thought that legal language meant something. The legal definition of a penalty does not include the word tax. Joh Roberts seems to think that tax and penalty are the same or can be viewed as needed when viewed from the constitution.
While it is reasonable to impose a penalty for failure to pay lawful taxes, government power is no longer limited except (perhaps) by those things specifically protected (speech, guns, religion, etc) when the government can impose a tax-penalty as an "inducement" (Roberts) or punishment for failing to act is some government mandated way. That's getting the constitution bass ackwards.
Page 4 para b of the opinion might be the most incomprehensible thing I have ever read. Among other things, Roberts says that because the penalty is not so high that there is a choice whether or not to purchase health insurance. Does that mean anytime congress wants the raise the penalty they have to pass the Roberts ACA penalty threshold test?
Edited on June 29, 2012 at 12:21amJan '11
Re: The SCOTUS News You May Have Missed
Look on the bright side, John Yoo. If George W. Bush had had his way, Chief Justice Roberts could have been joined by Justice Harriet Miers in the majority decision.
If this doesn't put the final nail in W's reputation as a conservative, then nothing will.
Jan '11
Re: The SCOTUS News You May Have Missed
Accept no substitutes:
Ann Coulter for SCOTUS - Now!