Tag Archives: United States Supreme Court

Mexico files brief against Utah…federalism at issue?

Immigration is one of those issues that never seems to go away. While almost every policy can be debated, either passionately or with blithe calm, immigration seems to evoke a passionate and even angry response from people who are, otherwise, level-headed and even-tempered. Continue reading

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Justice Alito versus…the Supreme Court?

Justice Alito wears his heart on his sleeve. And he’s not afraid to take on the whole court to do it.

Yesterday, Justice Alito was the lone dissenting voice in the Supreme Court’s decision to allow Westboro Baptists to protest at military funerals. As Josh Blackman points out, though, it’s not his first time.

Last term, the Court decided United States v. Stevens which considered the constitutionality of a statute that criminalized the distribution of so-called “crush videos” (basically videos of killing cute fuzzy animals). This term, in Snyder v. Phelps, the Court decided whether the protests of the Westboro Baptists at the funeral of slain Marine Matthew Snyder were constitutionally protected. In both cases, 8 Justices found that the laws were unconstitutional. In both cases Chief Justice Roberts wrote a very narrow opinion protecting free speech, but leaving many questions open. In both cases, Justice Alito was the lone dissenter.

In each, his dissents have been emotional, leading to questions whether they are motivated by law or by emotion.

To quote from Snyder:

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.
Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church,approached as closely as they could without trespassing,and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.1 The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity theWestboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree inTucson—proclaiming that she was “better off dead”11— their announcement was national news,12 and the church was able to obtain free air time on the radio in exchange for canceling its protest.13

Balancing the rights of all parties is a difficult act at best. Adding the context of military funerals only complicates the issue. However, the questions remain: should justices decisions carry such heavy emotional appeal? Or should justice be blind and bereft of emotion?

Last: did all eight get it wrong? Or is Justice Alito up in the night?

(h/t Josh Blackman)

Ben Lusty, on Congressional education policy

My good friend Ben Lusty published a piece on Congressional use of it’s funding power to influence education policy in the states.  Because I feel like the tension between the states and federal government merits scrutiny, especially when money is at issue, I have reprinted Ben’s piece here with his permission.

Congress’ education bailout is bad policy

By Ben Lusty

Deseret News Published: Friday, Aug. 20, 2010 12:03 a.m. MDT

Congress last week passed the Education Jobs and Medicaid Assistance Act. The act is a $26.1 billion bailout for states. But there is a catch: States must not cut education spending and must

The western front of the United States Capitol...
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pay each federal dollar to a teacher (the vast majority of whom are dues-paying union members). The bill intrudes into state sovereignty by dictating the way state legislatures spend their residents’ tax dollars, and nowhere is this more evident than Texas.

Congress singled Texas out for special treatment. To qualify for $820 million in aid, Texas must maintain its current level of educational spending until 2013. This command is retribution for Texas using some $3 billion in stimulus funds to plug a budget gap last year, rather than hiring more teachers as Congress wished. The governor of Texas must commit to maintain spending levels, even if that means raising taxes on Texans. The problem is that the state constitution prohibits the governor from promising to maintain funding levels. Only the Texas Legislature can direct state spending. Texas is thus on the very long horns of a dilemma: Forgo needed money, or violate its constitution.

Congress has some power to direct state action. There is no doubt that under the taxation and spending clause of the Constitution, Congress can require a state to do certain things in exchange for federal money. Congress used to require each state to keep a 55 mph speed limit as a condition for federal funds. Because states are free to choose whether they participate in these programs, these conditional grants are legitimate.

But congressional power over the states is not unlimited. The Supreme Court has ruled Congress may not “commandeer” a state government. Congress may not, for example, require states to pass taxation laws. Neither may Congress require state police agencies to enforce federal handgun laws. In South Dakota v. Dole, the Supreme Court even held that in some circumstances, “the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion.” That is, at some point, the amount of money at stake is too much that a state simply cannot turn the money away and must, as a matter of reality, concede to federal power.

The education bailout is troublesome to state sovereignty. In exchange for money, Congress requires states, particularly Texas, to surrender discretion regarding education funding. True, the states could decline the funds, but that is not realistic considering the fiscal desperation many states are enduring. Whether the financial inducement offered by Congress is compulsive under the Constitution is difficult to say because the Supreme Court has never said at what point the “financial inducement” becomes compulsive. And in any event, Congress is not threatening to withdraw existing funding to states.

At its heart, though, the education bailout is a mutual taxation and spending covenant between the states and the federal government, foisted upon the states by Congress’ superior power position. And it is bad policy. State legislatures are better placed to understand and respond to their own fiscal needs. Perhaps states have overspent on education and should be spending less, not more, as their legislatures judge best. Why should a senator from Virginia direct Texas educational spending? Congressional funding is a blunt instrument for delicate state finances. The Constitution envisions the federal government abstaining from meddling with state treasuries. The education bailout, however, pushes the federal government even deeper into each state’s treasury and in some cases between a state and its own constitution.

Democracy and Judiciary: at odds over Proposition 8

US Federal Supreme Court
Image by riacale via Flickr

One of the interesting points about American government is the balance in the federal constitution between democratic and non-democratic institutions.  It is, as was intended, a series of checks and balances on the power of too much democracy.  The Congress, the most democratic of the countries institutions at the federal level, is limited by the power of the judiciary, which has the ability to declare laws made by the Congress unconstitutional.  And, of course, there’s the Presidency.  But that’s not the subject of our discussion.  Today we are talking about the balancing between the powers of democracy and the powers the limit democracy.

The Congress is there to represent the will of the people, one step removed from actual rule.  State legislatures, and assemblies, are the equivalent. In some states, the people are able to express their will even more directly in the form of a referendum on the ballot.  A friend of mine in Oregon tells me that the referendum process there is so out of control that the ballot, which is mailed out to every voter, is so full of different voter initiatives that it takes several hours to vote, if the voter actually reads all the material provided to educate them on the referendum. In Utah, right now there is a fight going on between the state legislature and one initiative group that is trying to push through an ethics reform package.   It can get very heated.  But that’s democracy.  Laws are proposed–either in the legislature or in the referendum process–and they are fought over and decided upon in a venue where majority rule of the people, either by representative or by public vote, establishes the law.

In order to prevent oppression of the minority, the constitution establishes a court system that is poised to prevent the majority from unjustly imposing its will upon the minority, what Alexis de Tocqueville called the “tyranny of the majority.”  The crafters of the constitution recognized that in transferring power from a king to the people there was the very real risk that the country would trade one tyrant for another, that of the masses.  In addition to filling the Constitution with various anti-majoritarian clauses to prevent the abuse of the minority by the majority, the founders established an independent judiciary whose job it was to check the power of the people.  When the masses were oppressive, it was the job of the judiciary to invalidate the law, to protect the minority against the unjust actions of the legislature or the people.

And this brings us up to Proposition 8 and Judge Walker’s ruling that the law is unjust to gays and lesbians who want to marry in the state of California, ruling that it violated several parts of the constitution.  He then decided that marriages should begin as soon as Wednesday August 18 at 5 PM.  Supporters of Proposition 8 appealed, and this afternoon a stay was granted until the 9th Circuit could rule on the appeal.

Strangely, this stay, while temporarily preventing gay marriages from beginning in California, was seen by some as a rule in their favor:

Loyola Law School professor Richard Hasen said Monday’s order was strategically advantageous for supporters of same-sex marriage, no matter how disappointed many couples may be. If

the panel had refused to place a hold on Walker’s ruling, the supporters of Proposition 8 were prepared to seek a stay from the Supreme Court. The court is believed to be divided on the question of gay marriage, with Justice Anthony Kennedy considered a swing vote. A vote on a hold might have pushed the justices into taking an early position on the question.

“I think there are strategic reasons why even the most ardent supporter of gay marriage could opt for a stay,” said Hasen, an expert on federal court stays. “The concern is that rushing things to the Supreme Court could lead to an adverse result [for supporters of gay marriage.] If this case takes another year to get to the U.S. Supreme Court, there could be more states that adopt same-sex marriage and more judicial opinions that reach that conclusion.”

Hasen said the hold “takes the heat” off Kennedy and takes the case “off the front burner for a while.”

In other words, the longer gay marriage can move through the courts, the longer it can avoid a potentially devastating ruling by the US Supreme Court.  As more states permit the marriage of gays and lesbians and as more courts overturn challenges to gay marriage, as recently happened in Massachusetts, the belief is that it will become more likely that the US Supreme Court will uphold Walker’s opinion.

But there are naysayers.  Edwin Meese, U.S. attorney general from February 1985 to August 1988,  believes that not only was Judge Walker’s opinion wrong, but it was very wrong and overturns the will of the people with out justification.  he says “Walker’s ruling is indefensible as a matter of law wholly apart from its result.”  The first place he attacks Walker’s opinion is in ignoring binding Supreme Court precedent.

Regardless of whether one agrees with the result, structurally sound opinions always confront binding legal precedent. Walker’s is a clear exception because the U.S. Supreme Court has spoken on whether a state’s refusal to authorize same-sex marriage violates the equal protection and due process clauses of the 14th Amendment. In 1972, Baker v. Nelson, a case over whether Minnesota violated the Constitution by issuing marriage licenses only to opposite-sex couples, was unanimously thrown out on the merits, for lack of a substantial federal question. The Supreme Court’s action establishes a binding precedent in favor of Proposition 8. But Judge Walker’s ruling doesn’t mention Baker, much less attempt to distinguish it or accept its findings.

Indeed, this is a path that is often cited as taken by judges who are seeking to obtain a certain policy.  They see the justice in what they are trying to obtain as a result, and to that end, their opinions cite persuasive evidence to an end.

But Meese takes issue with Judge Walker’s evidence, as well:

Walker’s opinion pretends that the voluminous evidence introduced on the side of Proposition 8 does not exist. It neither acknowledges nor attempts to distinguish the writings of renowned scholars presented at trial in support of Proposition 8, including that of anthropologist Claude Levi-Strauss, history professor Robina Quale and social scientist Kingsley Davis. It ignores the writings of legal giant William Blackstone and philosophers John Locke and Bertrand Russell. It even refused to address the fact that Congress, in the 1996 Defense of Marriage Act, defined marriage as the “legal union between one man and one woman as husband and wife.”

Despite ample evidence introduced into the record that only a union of a man and woman can produce offspring (as if that needs proof), Walker’s opinion denied the relevance of that biological fact. That difference has been the main reason civilization recognized the uniqueness of marriage as between a man and woman, and why courts have repeatedly relied on that common-sense truth.

Despite voluminous evidence and common sense pointing to the contrary, the judge also declared that opposite sexes were never part of the “historical core of the institution of marriage”; “evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different than opposite-sex couples”; traditional marriage is an “artifact”; and, also without reference to the monumental evidence to the contrary, that it is beyond “any doubt that parents’ genders are irrelevant to children’s developmental outcomes.”

And this returns us to the balance between democracy and the judiciary.  Even the judiciary, when acting outside of the law, can be tyrannical in imposing a law on the people that is either unjust, undemocratic, or not their right to impose.  Judge Walker, by Meese’s estimation, has claimed that Proposition 8 imposed a private morality on a small group of people–essentially claiming that the majority is tyrannizing the minority.  Meese does not agree.  Whether or not we want to allow gay marriage is up for debate, but it is not an issue for one man, he says:

Having ignored everything courts typically rely on in making sound judgments, Walker concluded that Proposition 8 was enacted “without reason” and demonstrates “a private moral view that same-sex couples are inferior to opposite-sex couples [and are] . . . not as good as opposite-sex couples.” Nothing in Proposition 8 supports such conclusions, particularly since California law grants same-sex couples all the benefits and protections that apply in traditional marriage.

People can differ on whether, as a matter of policy, states should allow same-sex marriage. The robust debate on that topic should not be short-circuited by judicial fiat.

Yet, according to the federal district court, Americans such as President Obama, Vice President Biden, Secretary of State Hillary Clinton, the majority of members of Congress and the 7 million Californians who voted for Proposition 8 are all bigots who have “no rational reason” to oppose gay marriage.

Kagan sworn-in; Scalia trips but ok

Elena Kagan was sworn-in as fourth woman to sit on the US Supreme Court, today, and the third currently seated female justice.  

And Antonin Scalia tripped, but is ok…in case you were wondering.