Supreme Court

  • August 3, 2015
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on Balkinization.

    Chief Justice John Roberts sent President Obama off for the July 4 holiday in what must have been a good mood, secure that his signature legislative accomplishment, the Affordable Care Act, had survived a second lawsuit designed to cripple it.  In King v. BurwellRoberts had mobilized a 6-3 majority to reject a claim by health reform opponents that ACA-prescribed tax credits were not available on federally run exchanges.  In addition to helping secure Obama’s legacy, the decision evidently bumped up Obama’s public approval ratings.  But the celebration must be tempered.  This big win is not the President’s doing, nor that of the Executive Branch he controls.  Instead, it was due to two conservative justices, the Chief and Associate Justice Anthony Kennedy, whose agendas, while generally divergent from his, meshed on this important occasion.  How often will these stars align again? 

    That question is not academic.  King v. Burwell is by no means the last case in which the President’s political opponents are seeking to cancel or gut his key initiatives.  Indeed, two currently await decisions in lower federal courts. The first lawsuit is Texas’ challenge to the Administration’s immigration policy—to defer, on a case-by-case basis, removal of some four million undocumented immigrants who do not fall within DHS priorities for enforcing the nation’s immigration laws. The second lawsuit is House Republicans’ challenge to significant components of the administration’s ACA implementation.  A third challenge, to the EPA’s proposed Clean Power Plan —the crown jewel of Obama’s anti-global warming agenda— is likely when its regulations are finalized in early August.

    Over the next three days, I’ll discuss the upcoming challenges to Obama’s policy agenda. I begin, however, with a discussion of what Chief Justice Roberts’ opinion in King v. Burwell might mean for these lawsuits, and others that may follow them.

  • July 24, 2015
    Video Interview

    by Nanya Springer

    Some talk this week centered on the issue of reforming the U.S. Supreme Court, with one irresponsible proposal gaining moderate attention, but Erwin Chemerinsky has been talking about fixing the Supreme Court for years.  In an interview with ACSblog, Chemerinsky ‒ the Distinguished Professor of Law and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law ‒ describes the Supreme Court’s greatest failures and proposes responsible solutions.

    Chemerinsky recalls the Lochner Era ‒ a period during which the high court struck down more than 200 laws enacted to protect consumers and employees, using the rationale that such laws interfere with freedom of contract. While the Lochner Era ended nearly a century ago, Chemerinsky explains that today’s Roberts Court “is the most pro-business Supreme Court that we’ve had since the mid-1930s.”

    This claim, as Chemerinsky notes, is backed up by empirical studies. From restricting the availability of class action suits and favoring binding arbitration to weakening the influence of unions, the Roberts Court has consistently sided with corporations over consumers and employees—all while refusing to recognize poverty as a suspect classification and determining that education is not a fundamental right.

    Chemerinsky offers reasonable proposals, such as imposing 18-year nonrenewable term limits, allowing cameras inside the Court and insisting that the justices conform to the same ethical standards, particularly with regard to recusal, as judges on other courts.

    Watch the full interview here or below.

  • July 17, 2015

    by Nanya Springer

    When Harvard Law School’s Laurence Tribe delivered the Chautauqua Institution’s 11th annual Robert H. Jackson Lecture on the U.S. Supreme Court last week, he had a lot of material to cover. The latest Supreme Court Term was eventful. From the Court’s historic recognition of same-sex marriage equality in Obergefell to its decision to uphold the Affordable Care Act health care exchanges in King, June 2015 produced decisions that will impact the way millions of Americans live their lives.

    While Professor Tribe discussed the significance of the high court’s opinions, he also addressed recent “momentous events that shook our country and complicated the meaning of our Supreme Court’s decisions,” including the racially motivated massacre at Mother Emanuel Church in Charleston which preceded the Court’s ruling in Walker v. Sons of Confederate Veterans by less than 24 hours.

    Tribe says, “My hope is to tie the electrifying events of June together with [former Supreme Court Justice] Jackson’s eloquence and pragmatism, to arrive at a brighter and larger sense of that Constitution, a less cramped understanding of constitutional law, and a more capacious vision of the Supreme Court’s role in giving the Constitution life.”

    A full transcript of the speech is available here and here, and the video can be viewed below.

     

  • July 16, 2015
    Guest Post

    by Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law School

    *This post originally appeared on The Huffington Post.

    When most people propose changes in our electoral system, they generally do so in order to achieve a political end, not because the change conforms to a platonic ideal of what elections should be like. So it is with the plaintiffs in Evenwel v. Abbott, No. 14-940, which the Supreme Court will hear this fall. Their claim is that, when states draw their legislative districts, the Equal Protection Clause requires that they use the numbers of voters, instead of the number of people, as the basis for allocating seats within the states.

    The Supreme Court has ended the most blatant forms of gerrymandering and required legislative districts at both the state and federal level to be equal in composition within each state. The Court's rulings have been labeled "one person, one-vote," and the general assumption has been that, in dividing up each house by districts, the denominator has been the total population of the state.

    Evenwel challenges that assumption and argues that, because the goal of one person, one vote is to have each person's vote count the same as every other person's, the denominator should be total voters and not total population. If this were the law, the main groups that would no longer be counted are children, illegal immigrants, those not registered to vote, and felons who are precluded from voting. Until the actual lines are drawn for all the districts in a state, the results are not certain. But we do know that the backer of this lawsuit (Edward Blum) also supports Fisher v. University of Texas, which seeks the elimination of affirmative action in university admission. Therefore, it is reasonable to assume that he believes that the change would have an adverse impact on minorities and their Democratic supporters, or at least it has that potential in some states, including Texas where the case was brought.

  • July 1, 2015
    Guest Post

    by Justin Pidot, Associate Professor of Law, University of Denver Sturm College of Law

    In its last decision of the 2014 term, the Supreme Court decided Michigan v. EPA, ruling that EPA must consider costs before deciding to regulate toxic air pollutants from power plants.  Lisa Heinzerling has identified the many questions that remain open in the wake of the Court’s decision.  And Dan Farber and Ann Carlson also provide insightful commentary on the meaning of the decision. As all three suggest, the lasting practical effect of the Court’s decision on mercury and other toxic emissions from power plants remains to be seen.

    Without retreading ground that has been well-covered already, I want to offer two observations.  First, I want to offer some (very cautious) optimism that the legal rule provided by the Michigan v. EPA decision has little effect.  Read broadly, the decision could require agencies in many contexts to consider costs before regulating.  I’m not convinced, however, that the decision necessarily tells us anything about when agencies must consider costs. 

    The Court offers several reasons that EPA unreasonably interpreted its authority to regulate power plants without accounting for the billions of dollars of costs such regulation might impose: 

    First, the Court explains that the toxic air pollution provisions of § 112 of the Clean Air Act differentiate between power plants and other stationary sources.  For sources other than power plants, the Act essentially allows EPA to consider, at most, health and environmental effects.  In contrast, the Act requires EPA to regulate power plants only if “necessary and appropriate.”  This contrast, the Court offers, must mean something.

    Second, the Court opines that appropriate regulation generally requires an agency to think about both the benefits of regulation and its cots.  This suggests, that could be read to presumptively require agencies to consider costs in making regulatory decisions.