The Supreme Court & Obamacare

[grumbler]

The burden of proof is on the claimant, for reasons mentioned earlier: the purpose of judicial review is to prune unconstitutional laws, not certify ones that are "right and proper."

The standard is "necessary and proper," IIRC, which is a bit different than "right and proper" in logical terms.  It would be difficult to show that a provision or law was not "right" but it is possible to show that a provision or law is not necessary.

[DontSayBanana]

The burden of proof is on the claimant, for reasons mentioned earlier: the purpose of judicial review is to prune unconstitutional laws, not certify ones that are "right and proper."

The standard is "necessary and proper," IIRC, which is a bit different than "right and proper" in logical terms.  It would be difficult to show that a provision or law was not "right" but it is possible to show that a provision or law is not necessary.

Yeah, you're right, there.  The "necessary" part was what got Prop 8 in hot water, IIRC- the pro- crowd was never able to prove a purpose that wasn't simply discriminatory.

[crazy canuck]

Does the US have a process for the Federal government referring constitutional questions directly the the Supreme Court

[DontSayBanana]

Does the US have a process for the Federal government referring constitutional questions directly the the Supreme Court

Not really.  SCOTUS functions solely as an appellate court, only considers constitutionality (any federal judge is capable of addressing constitutional questions), and even having a constitutional question  doesn't guarantee that SCOTUS will grant certiorari- they typically only hear ~100 cases a year.

Again, look at Prop 8.  Prop 8 was a change to the state constitution, so the only questions to be considered were questions of US constitutionality, but it still wended its way up the federal court system.

The only exception that I know of is if a state's supreme court has spoken on an issue, the appeal is an automatic request for certiorari to SCOTUS.

[Admiral Yi]

All accusations of activism are selective because activism is in the eye of the beholder. 
Upholding the mandate could be activist because it would endorse intrusive federal power; striking down is activist because departs from prior precedent to nullify an act of the legislature.

On gay marriage, the pro-gay marriage opinions are activist for striking down state laws; the anti-opinions are activist for refusing to apply simple Equal Protection principles.

The difference is that conservatives use a narrow definition of activism that has greater or lesser applicability depending on the situation, whereas liberals use a universal definition that is either applied universally or it's meaningless.  There are arguments for and against gay marriage deriving from equal protection.  But there are no arguments for or against it overturning legislation; it's a statement of fact.

[grumbler]

The difference is that conservatives use a narrow definition of activism that has greater or lesser applicability depending on the situation, whereas liberals use a universal definition that is either applied universally or it's meaningless.  There are arguments for and against gay marriage deriving from equal protection.  But there are no arguments for or against it overturning legislation; it's a statement of fact.

I think you probably want to investigate what "conservatives" want from the courts, or "liberals," before making such sweeping generalizations.  Not having a horse in the race, I don't recognize either of your characterizations from what I see and read from self-proclaimed liberals and conservatives.

[Admiral Yi]

I'll get right on it.

[Jacob]

I'll get right on it.

You're such a keener 

[The Minsky Moment]

The difference is that conservatives use a narrow definition of activism that has greater or lesser applicability depending on the situation

Not in my experience.  The defintion that conservatives use is the same as everyone else - to refer to those cases whose outcome they don't like.  Or put another way "activism" just means "whatever the Warren Court did."

[Admiral Yi]

Not in my experience.  The defintion that conservatives use is the same as everyone else - to refer to those cases whose outcome they don't like.  Or put another way "activism" just means "whatever the Warren Court did."

Come now Joan.  You yourself have previously expressed reservations about the strict interpretation of the written word in Roe v. Wade.

Leaving the conservative definition aside for a moment, how do you defend yourself against the charge of inconsistency in using the liberal definition?

[CountDeMoney]

Or put another way "activism" just means "whatever the Warren Court did."

Shame we don't have access to the years of Languish archives, so we could do a search for judicial activism, and see who bitched about it more.

Meh, they'd all pop up under Hansmeister anyway.

[dps]

SCOTUS functions solely as an appellate court

That's not entirely accurate.  From Article 3, Section 2 of the Constitution:  "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction".  Granted, such cases are only a small part of the Courts work.

[Kleves]

Saw this editorial in the Seattle Times:

WASHINGTON — How dare President Barack Obama brush back the Supreme Court like that?

Has this former constitutional law instructor no respect for our venerable system of checks and balances?

Nah. And why should he?

This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once they give the last word, is well on its way to becoming one of the most divisive in modern U.S. history.

It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.

All the fancy diplomas of the conservative majority cannot disguise the fact that its reasoning on the most important decisions affecting Americans seems shaped more by a political handbook than a legal brief.

Obama never should have waded into the health care thicket back when the economy was teetering. He should have listened to David Axelrod and Rahm Emanuel and not Michelle.

His failure from the start to sell his plan or even explain it is bizarre and self-destructive. And certainly he needs a more persuasive solicitor general.

Still, it was stunning to hear Antonin Scalia talking like a Senate whip during oral arguments last week on the constitutionality of the health care law. He mused on how difficult it would be to get 60 votes to repeal parts of the act, explaining why the court may just throw out the whole thing. And, sounding like a campaign's oppo-research guy, he batted around politically charged terms like "Cornhusker Kickback," referring to a sweetheart deal that isn't even in the law.

If he's so brilliant, why is he drawing a risible parallel between buying health care and buying broccoli?

The justices want to be above it all, beyond reproach or criticism. But why should they be?

In 2000, the Republican majority put aside its professed disdain of judicial activism and helped to purloin the election for W., who went on to heedlessly invade Iraq and callously ignore Katrina.

As Anthony Lewis wrote in The Times back then, "Deciding a case of this magnitude with such disregard for reason invites people to treat the court's aura of reason as an illusion."

The 2010 House takeover by Republicans and the GOP presidential primary have shown what a fiasco the Citizens United decision is, with self-interested sugar daddies and wealthy cronies overwhelming the democratic process.

On Monday, the court astoundingly ruled — five Republican appointees to four Democratic appointees — to give police carte blanche on strip-searches, even for minor offenses such as driving without a license or violating a leash law. Justice Stephen Breyer's warning that wholesale strip-searches were "a serious affront to human dignity and to individual privacy" fell on deaf ears. So much for the conservatives' obsession with "liberty."

The Supreme Court mirrors the setup on Fox News: There are liberals who make arguments, but they are weak foils, relegated to the background and trying to get in a few words before the commercials.

Just as in the Senate's shameful Anita Hill-Clarence Thomas hearings, the liberals on the court focus on process and the conservatives focus on results. John Roberts Jr.'s benign beige facade is deceiving; he's a crimson partisan, simply more cloaked than the ideologically rigid and often venomous Scalia.

Just as Scalia voted to bypass that little thing called democracy and crown W. president, so he expressed ennui at the idea that, even if parts of the health care law are struck down, some provisions could be saved: "You really want us to go through these 2,700 pages?" he asked, adding: "Is this not totally unrealistic?"

Inexplicably mute 20 years after he lied his way onto the court, Clarence Thomas didn't ask a single question during oral arguments for one of the biggest cases in the court's history.

When the Supreme Court building across from the Capitol opened in 1935, the architect, Cass Gilbert, played up the pomp, wanting to reflect the court's role as "the national ideal of justice."

With conservatives on that court trying to block FDR, and with Roosevelt prepared to pack the court, The New Yorker columnist Howard Brubaker noted that the new citadel had "fine big windows to throw the New Deal out of."

Now conservative justices may throw Obama's hard-won law out of those fine big windows. They've already been playing Twister, turning precedents into pretzels to achieve their political objective. In 2005, Scalia was endorsing a broad interpretation of the commerce clause and the necessary and proper clause, the clauses now coming under scrutiny from the majority, including the swing vote, Justice Anthony Kennedy. (Could the dream of expanded health care die at the hands of a Kennedy?)

Scalia, Roberts, Thomas and the insufferable Samuel Alito were nurtured in the conservative Federalist Society, which asserts that "it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

But it isn't conservative to overturn a major law passed by Congress in the middle of an election. The majority's political motives are as naked as a strip-search.

Maureen Dowd is a regular columnist for The New York Times.

[Admiral Yi]

Maureen Dowd. 

[CountDeMoney]

Maureen Dowd. 

No kidding.  Don't do The Good Guys(tm) any favors, Kleves.