Methods of interpretation

  • July 9, 2012
    Guest Post

    By Mae Kuykendall, Professor of Law, Michigan State University, and Director of the Legal E-Marriage Project


    A federal court in Manhattan has entered a summary judgment in favor of Edith Windsor, a widow assessed an estate tax of $363,053 on her spousal inheritance. This sum was assessed because the federal government, pursuant to Section 3 of the Defense of Marriage Act (“DOMA”), deems her Canada-solemnized same-sex marriage nonexistent.

    This holding is the latest defeat for Congress’s 1996 handiwork. With the request by the Obama administration for certiorari to the First Circuit DOMA holding and to a Ninth Circuit DOMA scheduled for September oral argument, and with Prop 8 litigation potentially headed for high court review, Windsor nicely differentiates among the distinctive issues affecting same-sex marriage.

    In Windsor, a brief for intervenors for the U.S. House of Representatives argued that Congress could rationally conclude there is a federal interest in impeding “an unprecedented redefinition of our foundational social institution.” Judge Barbara Jones politely demolished this portentous pronouncement as support for federal law.

    The judge demonstrates that all-or-nothing arguments about same-sex marriage conflate separate questions. The intuition that a loud NO! is final masks the need for nuance. 

    With same-sex marriage, there are several obviously distinctive questions. First, must states affirmatively authorize same-sex marriage by issuing marriage licenses to couples? Second, may the federal government treat as null for federal law a state-created legal status affecting family relations? Third, to what extent are states required to afford recognition to legal statuses created outside the state by sister states? Fourth, what determines whether a state has recognized a given marriage, at a given time?  With differing questions, different factors are at work, and they demand multiple answers.

  • July 6, 2012

    by Samantha Berkovits

    University of Texas law Professor William E. Forbath calls for liberals to champion a stronger interpretation of the Constitution that aims to squelch inequality. Those tempted to take up this cause, which Forbath presented in an op-ed in today’s New York Times, may find themselves facing an unfriendly battlefield, but Forbath is confident that history is on their side.

    The constitutional argument for equality may seem inherent in a document meant to “promote the general Welfare.” However, the recent victory for liberals in the Affordable Care Act case was ensconced in nearly 200 pages of opinion, with much of the language holding the potential to destroy the legacy of the New Deal, with rough consequences for an American public already facing a dangerous economic landscape. Forbath writes, “Even the new doctrine that the majority adopted may hobble efforts to condition federal grants-in-aid on compliance with national goals, like child-care assistance for the working poor.”

    Conservatives, Forbath notes, would have the public believe that the goal of the Constitution is to protect and establish “individualism, small government, godliness and private property.” In response to this “crackpot originalism” liberals have been playing defense, when they should have been on the offensive. According to Forbath, all the necessary tools to present a case for a Constitution that allows the government to, in the words of Justice Ginsburg, “regulate the national economy in the interest of those who labor to sustain it” can be found in American history.

  • June 28, 2012
    Guest Post

    By Adam Winkler, Professor of Law, UCLA. This piece first appeared on The Huffington Post.
     


    Today's Supreme Court is often referred to as Anthony Kennedy's Court. Although Kennedy is the swing justice who usually casts the deciding vote in close cases, the landmark ruling this week in the healthcare cases clearly marks the maturation of the "Roberts Court."

    Chief Justice John Roberts was the surprising swing vote in today's Obamacare decision. Although he agreed with the four conservative justices, including Kennedy, that the individual mandate was not a regulation of interstate commerce, he voted with the Court's moderates to hold that it was justified as a tax. Because people who don't obtain insurance pay a tax to the IRS, the mandate was within Congress's power to raise taxes for the general welfare. As a result, the Affordable Care Act was upheld.

    With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president's signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn't want to go there.

  • March 30, 2012

    by Jeremy Leaming

    Before this week’s marathon oral arguments in the case challenging health care reform, many legal scholars, had strongly argued that the challengers’ arguments did not have a serious chance of surviving Supreme Court scrutiny.

    Primarily the reasoning was based on high court precedent in favor of a broad reading of Congress’ power to regulate commerce and to tax and spend for the general welfare.

    But those perceptions have been rocked following three lengthy days of oral argument, in which Justices Antonin Scalia and Samuel Alito appeared to have bought the challengers’ arguments against the minimum coverage provision, and, at times, revealed utter callousness toward national lawmakers’ attempt to reform a terribly inefficient and exclusive health care system that has left tens of millions uninsured.

    Moreover as The New York Times columnist Paul Krugman noted, several of the justices appeared utterly or willfully ignorant of how “insurance works.” Krugman said Scalia’s comparison of purchasing health care insurance to buying broccoli “horrified health care experts all across America because health insurance is nothing like broccoli.”

    “Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick – which what happens in the absence of a mandate – the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those  who remain. As a result, unregulated health insurance basically doesn’t work, and never has,” Krugman wrote.

    Walter Dellinger, former Solicitor General, at an ACS briefing on the oral arguments in HHS v. Florida, said it appeared, based mostly on their questions that three justices look ready to strike the minimum coverage provisions. Justice Samuel Alito’s questions were almost as hostile as Scalia’s and most, including Dellinger, believe Justice Clarence Thomas will vote to invalidate the law’s integral provision.

    But Dellinger (pictured) is still holding out hope that two more justices will not join those three in killing health care reform.

    “If there were five,” he said, “I would be shocked, because I think it would take us back to the jurisprudence of the 1920s. I think it would be the most stunning and indefensible judicial decision in half a century. It would be paired with Bush v. Gore in the law books forever.”

  • March 14, 2012
    Guest Post

    By Doug Kendall, President, Constitutional Accountability Center


    Lyle Denniston recently described “the tendency of the ‘Roberts Court’ to take on the broadest kind of controversy in cases brought to it.” From Citizens United v. FEC, in which the Court expanded the case on its own motion, scheduled a second argument, and then issued a sweeping ruling discarding prior case law, to the Affordable Care Act (ACA) cases about to be argued, in which the Court decided to hear just about every claim presented to it -- including claims unanimously rejected by the lower courts -- and scheduled six hours of argument time over three days, the Court under Chief Justice John Roberts has put itself at the center of some of the most important political controversies of our day.

    Decisions like the Court’s 5-4 ruling in Citizens United illustrate that the Roberts Court is not only taking big cases and issuing sweeping rulings, it is also splitting sharply along ideological lines on important questions about the meaning of our founding document. That is the focus of The Constitution at a Crossroads: The Ideological Battle over the Meaning of the Constitution, an attempt by Constitutional Accountability Center (CAC) to map and describe the ideological battlegrounds on the Roberts Court. We began to rollout the Crossroads project today with a media teleconference featuring Tom Perriello (former Member of Congress and current head of Center for American Progress Action Fund) and myself (you can listen to our remarks here).

    CAC will be releasing Crossroads chapter-by-chapter over the next several months, beginning today with the release of three chapters on the powers of the federal government, which helps set the stage for the ACA argument later this month. Our plan is to release a dozen or so more chapters over the course of the spring, as the Court races toward the end of its October 2011 Term. After the Court completes its work, we will spend the summer editing, revising and compiling Crossroads into a single document for release in the early fall, timed to coincide with the celebration of the 225th Anniversary of the ratification of the Constitution and  the opening of the Court’s October 2012 Term. Because Crossroads will be released over time and then revised and edited after the Court ends its Term in June, we very much welcome comments and criticisms from ACS members as we shape the final product.

    Crossroads is not the first attempt to map the ideological divisions on the Supreme Court. In 1988, in the wake of the decisive defeat of the nomination of Robert Bork to the Supreme Court and in the run-up to an election that seemed destined to determine the direction of the Court for a generation to come, the Reagan Justice Department released a series of reports that highlighted “substantial differences of opinion over the judicial role in contemporary society.” The most famous of these reports, entitled The Constitution in the Year 2000, highlighted fifteen areas of constitutional law likely to be decided by the Supreme Court over the intervening years, and the “alternative roads down which the Court might travel over this time.”