Justice Ruth Bader Ginsburg

by Nicole Flatow

The “partisan intensity” surrounding the Senate confirmation process of judicial nominees “makes the judiciary look politicized when it is not” and “has to stop,” U.S. Supreme Court Justice Anthony Kennedy said during an address at the 2012 Ninth Circuit Judicial Conference in Maui.

The remarks are the latest in a string of calls to end Senate obstruction of judicial nominees from judges and legal leaders, including Chief Justice John Roberts and Justice Ruth Bader Ginsburg. Justice Kennedy also questioned the functioning of the Senate confirmation process during the 2010 Ninth Circuit conference, saying, “It's important for the public to understand that the excellence of the federal judiciary is at risk.” Two years later, Kennedy is expressing even greater alarm.

“The Constitution requires Senate confirmation,” Kennedy said this week. “The Senate is a political entity and will act in a political way and that’s quite proper. … On the other hand, there is a difference in a political function and a partisan function, and the current climate is one in which highly qualified eminent practitioners of the law simply do not want to subject themselves to this process.”

by Jeremy Leaming

Reading from the bench during the announcement of the Supreme Court’s decision on the Obama administration’s landmark health care reform law, Justice Ruth Bader Ginsburg declared, “In the end, the Affordable Care Act survives largely unscathed.”

Yes, the Obama administration’s signature legislative achievement and the strongest effort in many decades to repair the nation’s tattered social safety did survive Supreme Court scrutiny.

But as noted here yesterday, it did so barely, and not in the manner that many constitutional law experts and the high court’s four moderate to left-of-center justices had thought it would. And the opinion also included a shrill dissent that envisions a vastly ineffective federal government. As former U.S. Solicitor General Walter Dellinger said during yesterday’s ACS press briefing if the dissent had carried the day it would have marked and “extraordinary revolution” in constitutional law jurisprudence.

Although the federal government argued that the law’s integral measure, the minimum coverage provision, was constitutional on two major fronts, it was largely thought that it would be upheld as a valid regulation of commerce. The activity of the health care market represents nearly 18 percent of the nation’s economy.  

But that did not happen. And some constitutional law scholars say that fact should not be ignored.

Chief Justice John Roberts’ majority opinion provides some language suggesting the high court was not radically re-reading precedent on the commerce clause. But a careful reading of his opinion reveals that the libertarian argument for a vastly cramped interpretation of the commerce power carried the day.

As The New York Times’ Adam Liptak put it, “Five justices accepted the argument that had been at the heart of the challenge brought by the 26 states and other plaintiffs: that the federal government is not permitted to force individuals not engaged in commercial activities to buy services they do not want. That was a stunning victory for a theory pressed by a small band of conservatives and libertarian lawyers. Most members of the legal academy view the theory as misguided, if not frivolous.”

Justice Ruth Bader Ginsburg in her concurring opinion also took the chief justice to task for a “rigid reading” of the commerce clause that “makes scant sense and is stunningly retrogressive.”