A federal judge today declined to dismiss Virginia's lawsuit challenging the health care reform law, The Washington Post reports on its Post Now blog.

In his decision, available here, U.S. District Court Judge Henry E. Hudson rejected arguments from Obama administration lawyers that Virginia has no standing to sue, and that the state could not prevail on the merits.

Thirteen other states have joined in a separate suit similar to that filed by Virginia Attorney General Ken Cucinelli, arguing that the law's mandate that citizens purchase health care by 2014 or pay a fine is unconstitutional.

The procedural ruling now paves the way for a full hearing on legal arguments before Hudson in October, The Post reports.

"This is a decision that I think conservative judges will find disturbing," said Walter Dellinger, chief of the appellate practice at O'Melveny & Meyers, during a Center for American Progress press call.

The state of Virginia cannot have standing to challenge a law that imposes no burdens or obligations on the state, Dellinger explained.

Dellinger added that, although the judge "clearly failed to understand how the necessary and proper clause functions," the judge's preliminary analysis of the substantive legal arguments was "not based on anything approaching a full consideration of the issues, which has yet to come."

For more analysis on the constitutionality of the bill, read an ACS Issue Brief by Simon Lazarus, public policy counsel for the National Senior Citizens Law Center.

See also a panel discussion on the health care reform bill's constitutionality from the ACS 2010 National Convention here. We talked with Lazarus about the bill following his participation on the panel.

A front-page analysis of the Supreme Court's ideological direction in Sunday's New York Times calls the court under Chief Justice John G. Roberts Jr. "the most conservative one in living memory."

Citing the replacement of Justice Sandra Day O'Connor with Justice Samuel Alito as one of the primary causes for the change, the article predicts:

If the Roberts court continues on the course suggested by its first five years, it is likely to allow a greater role for religion in public life, to permit more participation by unions and corporations in elections and to elaborate further on the scope of the Second Amendment's right to bear arms. Abortion rights are likely to be curtailed, as are affirmative action and protections for people accused of crimes.

Decisions favoring criminal defendants, unions, people claiming discrimination or violation of their civil rights are considered liberal, the article explains. Decisions striking down economic regulations and favoring prosecutors, employers and the government are said to be conservative.

According to data collected by political scientists, "four of the six most conservative justices of the 44 who have sat on the court since 1937 are serving now: Chief Justice Roberts and Justices Alito, Antonin Scalia and, most conservative of all, Clarence Thomas."

Retired Justice John Paul Stevens also noted in an interview in April that "every one of the 11 justices who had joined the court since 1975, including himself, was more conservative than his or her predecessor, with the possible exceptions of Justices Sotomayor and Ruth Bader Ginsburg."

During the 2010 ACS National Convention, Sen. Al Franken discussed the impact that the conservative wing of the court has had on the case law.

"I don't think you need to be a lawyer to recognize that the Roberts Court has, consistently and intentionally, protected and promoted the interests of the powerful over those of individual Americans," Franken said. "And you certainly don't need to be a lawyer to understand what that means for the working people who are losing their rights, one 5-4 decision at a time."

For more analysis of the high court's recent term, see video of the ACS Supreme Court term review.

An explanation by the Department of Justice of why the health care reform bill is constitutional, described by The New York Times as a change in strategy, is neither new nor surprising, a constitutional law scholar says.

Yale Law Professor Jack M. Balkin, quoted in the article from his remarks at the 2010 ACS National Convention, defended the bill under the government's power to tax and provide for the general welfare during the convention's health care reform panel.

Indeed, "[t]he tax argument is the strongest argument for upholding" the individual-coverage requirement, Balkin told The Times.

White House Communications Director Dan Pfieffer told The Times that the tax and spend clause is an "alternative source of authority," and its primary source remains the commerce clause.

"The Commerce Clause supplies sufficient authority for the shared-responsibility requirements in the new health reform law," Pfeiffer said.

Balkin made clear at the ACS convention, during his participation in the health care reform panel, that the law is justifiable under both the commerce clause and the power to tax clause. A number of other constitutional law professors, including Erwin Chemerinsky and Robert A. Schapiro have also asserted that the health care reform law is on solid constitutional ground under both clauses.

Georgetown Law Professor Randy E. Barnett, who engaged in a spirited discussion with Balkin during the ACS convention panel, responded to Balkin's commerce clause argument by suggesting that the law is an "unconstitutional commandeering of the people."

"Now, you may say that's a novel argument," Barnett said. "And I agree. But why is this a novel argument? Because this has never been done before. ... And something that's never been done before is going to require a novel argument on both sides."

View the conversation between Balkin and Barnett below. Watch video of the entire panel discussion here.

William Marshall, a constitutional law expert and professor of law at the University of North Carolina and former Deputy White House Counsel, skewers Washington Post columnist Michael Gerson's recent attack on Sen. Franken's keynote speech at the 2010 ACS National Convention.

During his ACS speech, Sen. Franken tagged conservative activists' and jurists' advocacy of originalism - a strict reading of the Constitution to tackle today's controversies - as "a talking point," not a "pillar of our Constitutional history." Franken went on to slam the Roberts Court for dismantling "the legal protections that help ordinary people find justice when wronged by the economically powerful," using numerous examples of cases demonstrating that point.

Gerson's article attacked Franken as someone who "should not be taken seriously," and Franken's description of originalism as a "talking point."

In an article for The Huffington Post, Marshall rips Gerson's column, writing that Franken's "central observation that the Roberts' Court has been activist in favor of conservative results is unassailable."

Marshall notes that conservatives lay claim to judicial restraint "on grounds that they purportedly adhere to binding constitutional principles of originalism while liberals, in contrast, are guided only by untethered principles of justice."

Marshall continues:

Franken attacked this assertion in his ACS speech as well, characterizing the conservatives' purported reliance on originalism as little more than a talking point, and it is this particular characterization to which Gerson takes great exception. To Gerson, originalism is not a talking point but ‘a developed, consistent theory of judicial interpretation.' And maybe it is for some academics who are willing to take the theory as far as it will go - including to results that for most Americans would be politically unacceptable. But the fact that Franken is correct and, for most conservatives, reliance on originalism has been little more than a talking point. Not too many conservatives argue that various federal drug laws are unconstitutional, for example, and many contend that federal power has not been expanded enough in the areas of tort reform and property takings. In reality, most conservatives rely on originalist principles only selectively and seldom when it gets in the way of results that they want to achieve. Whatever else the Citizens United case may stand for, the notion that corporations have unlimited rights to spend money to influence elections is no originalist. The Court's rejection of federal affirmative action, whatever else one thinks of the policy, is not originalist. The Court's efforts to place curbs on the ability of local communities to protect the environment or to allow public access to beaches are not originalist. The list goes on.

See Marshall's entire column here. Video and transcript of Franken's ACS speech are available here.

The conservative wing of the Supreme Court has actively, and successfully, overturned and narrowed laws meant to protect workers' rights, minority voting rights, access to courts, as well as taking and construing cases to advance corporate interests, maintained several panelists at the final plenary panel of the 2010 ACS National Convention.

Moderator Linda Greenhouse, a senior research scholar at Yale Law School and former Supreme Court correspondent for The New York Times, asked constitutional law expert Pamela S. Karlan to explain the judiciary's role among the three branches of federal government.

Karlan, a Stanford Law School professor, said, "The Constitution is written in very broad language about very broad principles that were intended to endure for a long period of time and to be applicable to a nation that the framers knew would emerge, but they didn't know in what form. That's why the most important parts of the Constitution are written in broad and sweeping language."

But at the second framing of the Reconstruction Amendments - the 13th, 14th and 15th Amendments - the framers gave "Congress special power to enforce by appropriate legislation the guarantees that go into the rights of citizenship, the guarantees of the privileges or immunities clause, the equal protection clause, and the due process clause," Karlan said. "And they gave Congress that power in part because they distrusted the Supreme Court. I mean today the Supreme Court is living off of the fumes of Brown against Board of Education, that's why it has such power in our country."

But, at the middle of Reconstruction, the high court, Karlan noted was "living off the fumes of Dred Scott." She said, "the Supreme Court was not the place you went to get equality, you went to the legislature."

"So the Constitution's broad sweeping powers are given their real-life meaning by Congress. If you ask where did we get equality, it's from the Civil Rights Act of 1964. If you ask ‘how is that the 15th Amendment actually enfranchised African Americans?' More African Americans were enfranchised in the first two years after the passage of the Voting Rights Act of 1965 than in the entire prior century through judicial enforcement alone. And that's because Congress banned literacy tests [for voting] when the Supreme Court wouldn't. Congress gave people the right to register, when the Courts didn't."

Karlan noted that it is just as important, if not more so, to confirm lower court judges who understand the role of the judiciary, the Constitution and are taking appropriate action. As she noted, it is not useful to pass health care reform law only to then have it hobbled by conservative jurists or to pass environmental regulations that are subsequently gutted by similar judges.

Karlan co-authored a book published by ACS called Keeping Faith with the Constitution, which takes a critical look at the cramped constitutional interpretation promoted by many conservative jurists and lays out an alternative one that promotes fidelity to the Constitution. 

Congressman Jerrold Nadler (D-N.Y.) knocked the Roberts Court for its "campaign to shut the door on litigants." I've introduced a bill, Nadler said, to try to restore the pleading standards, but the business community and its lobbyists, such as the Chamber of Commerce, are targeting the bill, the Open Access to Courts Act. "I don't know if we can bring that to a vote this year or not," he said.

Nadler continued, that the Roberts Court, contrary to Chief Judge Roberts' confirmation testimony, "has been a very activist court."

Someone suggested a few years ago that maybe we start inserting into our legislation the words, "this time we mean it," Nadler added.

John Payton, head of the NAACP Legal Defense and Educational Fund, Inc., said that Congress should take action to "shore up the Voting Rights Act," in light of the high court's recent 5-4 ruling that suggested the conservative wing, led by Chief Justice John Roberts' was seeking the necessary fifth vote to gut Sec. 5 of the Voting Rights Act, which requires a number of states and localities with a history of voting discrimination to get federal preclearance before making any change to voting practices or procedures. But, Payton said he didn't believe there was a "chance that Congress could take any action on the Voting Rights or any other major piece of Civil Rights legislation in this poisoned atmosphere."

Video of the Congress and the Courts plenary:

Helping to kick off the 2010 ACS National Convention, Sen. Al Franken criticized Republican efforts to scuttle the Obama administration's nominations to the federal courts and numerous administration positions. 

"Tonight, we celebrate the rise of a new generation of progressive legal scholars and jurists," Franken said. "Look to your left. Look to your right. Odds are, at least one of the three of you will someday be filibustered by Senate Republicans. Speaking of which, I'd like to give a special shout-out to all the filibustered nominees we have here with us tonight. The Republican obstruction that is standing between you and the work you've agreed to do for your country is unacceptable. And we will continue to fight it."

Franken, the featured speaker at the Convention's opening night Gala dinner at the Renaissance Mayflower Hotel in Washington, D.C, followed Dawn Johnsen, who was nominated by President Obama to lead the Office of Legal Counsel (OLC). A transcript of Franken's speech is available here.

Franken said, "In particular, I want to recognize Dawn Johnsen, who should be the head of the Office of Legal Counsel at the Department of Justice. What Republicans have done to keep you from doing that important job is reprehensible."

The senator also took a sharp look at the conservative wing of the U.S. Supreme Court and its rulings that have consistently supported corporate interests.

"I don't think you need to be a lawyer to recognize that the Roberts Court has, consistently and intentionally, protected and promoted the interests of the powerful over those of individual Americans," Franken said. "And you certainly don't need to be a lawyer to understand what that means for the working people who are losing their rights, one 5-4 decision at a time.

"Tonight," Franken continued, "I'd like to talk about how we got to this sad moment in American legal history - because it didn't happen by accident. Conservative activists - led by the Federalist Society - have waged a remarkably successful battle to re-shape our legal discourse, and thus our legal system. And they're not done yet. I should acknowledge up front that this story is kind of a downer.

"But there's good news: the ending has not yet been written," he continued. "And I really believe that, if we pay attention to how things got so bad, we'll learn how to make them better."

Specifically, conservative jurists, lawmakers and activists have pushed a cramped understanding of constitutional interpretation, Franken said.

"If you listen to the U.S. Senate talk about judicial nominees, you'd be forgiven for thinking that originalism was a time-honored American value, one of the things we fought the British to protect," Franken said. "But ironically enough, originalism - like the designated hitter - only dates back a few decades.

"Indeed, as Cass Sunstein has pointed out, it was Robert Bork who first popularized the notion that the Constitution should be interpreted according to what we believe was the ‘original understanding' of its authors," he continued. "Just to clarify: That's not Robert Bork the Founding Father. That's Robert Bork the 20th century conservative legal activist.

"Originalism isn't a pillar of our Constitutional history," Franken maintained. "It's a talking point. During his confirmation hearing, John Roberts broke out another conservative talking point. He said: ‘Judges are like umpires. Umpires don't make the rules; they apply them.' And he promised: ‘I will remember that it's my job to call balls and strikes and not to pitch or bat.'"

"How ridiculous. Judges are nothing like umpires."

Instead, Franken cited former Justice David Souter who said, "The first lesson, simple as it is, is that whatever court we're in, whatever we are doing, at the end of our task some human being is going to be affected."

But conservatives, Franken said, "would like us to forget this lesson."

Our constitutional discourse, Franken continued, has been so mangled by conservatives that one could be forgiven for believing that court rulings "don't matter to ordinary people, but only to the undeserving riff-raff at the margins of society."

Watch Franken's entire speech below:

Sen. Al Franken will kick off the 2010 ACS National Convention on Thursday, June 17 with a speech offering a "real-world perspective on what we lose when we let conservatives control our constitutional discourse."

During the Senate Judiciary Committee's confirmation hearings for Supreme Court Justice Sonia Sotomayor, Sen. Franken tackled an element of conservatives' constitutional discourse that tags progressive judges as engaging in so-called judicial activism. Franken pointed to the Supreme Court's conservative wing as evidence that it is a leading force of activism from the bench.

"The current Supreme Court has consistently struck down and questioned longstanding protections for Americans," Franken said during Sotomayor's confirmation hearings. "And I'm talking about individual rights, individual protections, individual liberties. This Supreme Court came close to overturning critical portions of the voting rights act. The Court did this despite the express powers that Congress has granted under the 15th amendment to enact this law." Franken went on to note recent Supreme Court rulings that have made it more difficult for people file lawsuits. "This is judicial activism," Frank said. "This is a Court that is willing to reverse itself to limit the rights of individual Americans. This is a Court that is more than willing to overturn Congress to achieve its own agenda of what is right."

In a press statement on the Sotomayor nomination, Franken continued that the high court's rulings have also had a detrimental impact on "the rights of Americans as employees, as small business owners, and as investors. And they've done this by overturning long-standing precedents."

Franken is the featured speaker at the Convention's Gala Dinner starting at 7 p.m. in the Grand Ballroom of the Renaissance Mayflower Hotel in Washington, D.C. The Convention runs June 17 - 19. Visit the ACS Web site here, for the full Convention schedule and to register.

On May 5 and 6, House and Senate committees held back-to-back hearings on legislation to override a June 2009 Supreme Court decision that stripped older workers of vital protections against bias on which they had relied for over 40 years. In this ruling, which Justice Stevens in dissent characterized as "unabashed judicial law-making," "irresponsible," and in "utter disregard" of the Court's own precedents and "Congressional intent," a narrow 5-4 majority so weakened the 1967 Age Discrimination in Employment Act (ADEA), that employers are left with little incentive to comply. The case, Gross v. FBL Financial Services, illustrates the accuracy of President Obama's recent observation that we "are now seeing a conservative jurisprudence" that is both "activist" and bent on gutting laws that, like the ADEA, were enacted to protect ordinary people.

The case arose out of circumstances all too familiar to older workers at all levels in our economy, especially in the hard times from which much of the nation has barely begun to recover. In 2003, Jack Gross, aged 54 and a 32-year employee of FBL Financial, was demoted from his position as claims administration director, and transferred to a newly created position with drastically reduced responsibilities. Gross sued, and at trial introduced "evidence suggesting that his reassignment was based at least in part on his age" (as stated by Justice Clarence Thomas writing for the majority). Gross' employer responded with the claim that the reassignment was part of a "corporate restructuring." The jury found for Gross and awarded him $46,945 in lost compensation, after receiving the judge's instructions that they must rule for the employee if he proved by a preponderance of the evidence that "age was a motivating factor" in his demotion. "However," the judge instructed, the jury must rule for the employer if the employer proves by the preponderance of the evidence that the employer would have demoted Gross "regardless of his age." This instruction tracked settled law. But the Supreme Court majority changed the law, and held that Gross and others in his situation needed to show that age was the "but for" cause of their adverse treatment, and that evidence that age was a motivating factor would not shift the burden of proof to the employer to prove that the adverse action would have occurred regardless of the employee's age.

After the Supreme Court bounced him back to square one, Mr. Gross testified before Congress that the conservative Justices had "hijacked" his case to make an ideological point. His view cannot be dismissed as sour grapes. On the contrary, this 5-4 reversal of the jury verdict in Mr. Gross' favor creates a veritable perfect storm for older workers. Numerous surveys show that the current financial crisis has forced older workers at all economic levels to shelve plans for retirement, and attempt to stay in, or re-enter the job market. Or hope to. When recession strikes, employers often target veteran employees in reductions in force, and disfavor older candidates for whatever new positions they may need to fill. Age discrimination claims submitted to the Equal Employment Opportunity Commission spiked nearly 30 percent in June 2009 compared with the same month a year earlier.

For these claimants, the Supreme Court's decision offers a Catch-22. The aptly named decision will largely nullify the ADEA and guarantees that a vast proportion of age bias complaints will fail, whatever their merit. As Senate Health, Education, Labor, & Pensions Committee Chair Tom Harkin (who blogged for ACSblog here) observed in his committee's March 6 hearing on the bill, in real-world workplaces, employers create paper trails purporting to justify adverse actions on legitimate business-related grounds. In such circumstances, it will rarely be possible to prove that age was the "but-for" cause (a standard some courts have interpreted to mean "exclusive"), rather than a "motivating" factor. Virtually any evidence of any other factors, whether business-related or not, suffices to throw a legitimate age discrimination victim out of court. Employee-side lawyers will know that, so they will rarely waste their time and resources to bring cases when age bias victims come to them for help. Business lawyers will also know that, and will counsel clients that they have nothing to fear if they pay lip-service to the ADEA but ignore it in practice.

As noted above, few cases confirm more clearly than Gross v. FBL President Obama's observation that recent conservative judicial activism "ignores the will of Congress" and "democratic processes." "Not only," Justice Stevens wrote in his impassioned dissent, did the Court's own precedents reject the "but-for" standard, but "so did Congress when it amended Title VII (of the 1964 Civil Rights Act) in 1991." Moreover, the majority's "far-reaching" new rule answered a question completely different from the one the parties had raised with the Court or the courts below and which the Court "granted certiorari to decide."

When issued a bit less than a year ago, the Gross decision provoked indignant opposition on Capitol Hill, and on October 6, 2009, Senators Harkin and Patrick Leahy and Representative George Miller, simultaneously introduced identical corrective bills, entitled the Protecting Older Workers Against Discrimination Act. The fact that legislative hearings have now occurred on both sides of the Capitol indicates that Congress may well restore equal opportunity guarantees for older workers - just as it did in February 2009, when it overturned the infamous 2007 5-4 Ledbetter v. Goodyear decision that undermined equal pay opportunity safeguards in Title VII. Only through such prompt action can Congress prevent the further metastasizing of this threat to the economic security of older Americans, and all Americans.

[Image via National Senior Citizens Law Center.]

Joseph J. Ellis, renowned historian, offers a tough critique of originalism, the method of constitutional interpretation favored by some conservative jurists.

Ellis, who won a Pulitzer for his book Founding Fathers, writes in a piece for The Washington Post that during the forthcoming confirmation hearings for a new justice to fill the seat of Justice John Paul Stevens, the major weapon used against the nominee will likely be the "claim that Supreme Court justices should interpret the Constitution as it was written, not impose their political or personal convictions on the semi-sacred text. Woe to the nominee who has left a paper trail that deviates from the original intentions of the Founders, or what the hostile Senate interrogator defines those intentions to be."

Ellis continues:

The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. You don't have to believe that tongues of fire appeared over their heads during the debates. But the doctrine requires you to believe that the ‘miracle at Philadelphia' was a uniquely omniscient occasion when 55 mere mortals were permitted a glimpse of the eternal verities and then embalmed their insights in the document.

Any professional historian proposing such an interpretation today would be laughed off the stage. That four sitting justices on the Supreme Court - Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito - claim to believe it, or some version of it, is truly strange. We might call it the Immaculate Conception theory of jurisprudence.

For other methods of constitutional interpretation, see the book Keeping Faith with the Constitution, which was published last spring by ACS.