Dark money pushing Kavanaugh nomination, and savaging people who testify against him

October 3, 2018

Photo Illustration by Lyne Lucien/The Daily Beast

Photo Illustration by Lyne Lucien/The Daily Beast

Series of Tweets from Mike Farb, discussing the dark money campaign to put Brett Kavanaugh on the Supreme Court.

One more ugly piece of an ugly puzzle.

Farb is one of the geniuses behind UnhackTheVote.com, a project dedicated to ballot security and increasing protections for democracy in our elections.

Maguire’s Tweet:

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Flags at half-staff to honor Justice Antonin Scalia

February 15, 2016

U.S. Flag flew at half staff outside the Supreme Court on Sunday, February 14, 2016, in honor of Associate Justice Antonin Scalia, who died February 13.

U.S. Flag flew at half staff outside the Supreme Court on Sunday, February 14, 2016, in honor of Associate Justice Antonin Scalia, who died February 13. VOA image.

President Barack Obama ordered flags to be flown half-staff to honor Justice Antonin Scalia, who died February 13.  The half staff honor continues through the end of the day on which Justice Scalia is interred.

The order from the White House:

Presidential Proclamation: Death of Antonin Scalia

As a mark of respect for Antonin Scalia, Associate Justice of the United States, I hereby order, by the authority vested in me by the Constitution and laws of the United States of America, including section 7 of title 4, United States Code, that the flag of the United States shall be flown at half-staff at the White House and on all public buildings and grounds, at all military posts and naval stations, and on all naval vessels of the Federal Government in the District of Columbia and throughout the United States and its Territories and possessions until sunset, on the day of interment.  I also direct that the flag shall be flown at half-staff for the same period at all United States embassies, legations, consular offices, and other facilities abroad, including all military facilities and naval vessels and stations.

IN WITNESS WHEREOF, I have hereunto set my hand this thirteenth day of February, in the year of our Lord two thousand sixteen, and of the Independence of the United States of America the two hundred and fortieth.

BARACK OBAMA

# # #

The mourning period in which flags are to be flown half staff probably will include Presidents Day, February 15. Flags flown in honor of Presidents Day 2016 should be flown half staff. Where flags cannot be lowered, fly the flag as it is normally displayed.


October 5, 1964: Heart of Atlanta Motel asked Supreme Court for right to discriminate

October 5, 2015

PG posted this photo in one of his collections at Chamblee54:

Heart of Atlanta Motel, 1956 - Special Collections and Archives,Georgia State University Library

Heart of Atlanta Motel, 1956 – Special Collections and Archives,Georgia State University Library

I wondered whether this is the motel in the case testing the 1964 Civil Rights Act — and sure enough, it is.  The case was decided, finally, by the U.S. Supreme Court in 1964, Heart of Atlanta Motel, Inc., v. United States, 379 U.S. 241 (1964) .

This important case represented an immediate challenge to the Civil Rights Act of 1964, the landmark piece of civil rights legislation which represented the first comprehensive act by Congress on civil rights and race relations since the Civil Rights Act of 1875. For much of the 100 years preceding 1964, race relations in the United States had been dominated by segregation, a system of racial separation which, while in name providing for “separate but equal” treatment of both white and black Americans, in truth perpetuated inferior accommodation, services, and treatment for black Americans.

During the mid-20th century, partly as a result of cases such as Powell v. Alabama, 287 U.S. 45 (1932); Smith v. Allwright, 321 U.S. 649 (1944); Shelley v. Kraemer, 334 U.S. 1 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950); NAACP v. Alabama, 357 U.S. 449 (1958); Boynton v. Virginia, 364 U.S. 454 (1960) and probably the most famous, Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), the tide against segregation began to turn. However, segregation remained in full effect into the 1960s in parts of the southern United States, where the Heart of Atlanta Motel was located, despite these decisions.

The Atlanta Time Machine, a great collection of photos in the history of Atlanta and Georgia, has more photos, and this description of the site:

The Heart of Atlanta motel, located at 255 Courtland Street NE, was owned by Atlanta attorney Moreton Rolleston Jr.  Rolleston, a committed segregationist, refused to rent rooms at his hotel to black customers.  Upon passage of the Civil Rights Act of 1964, Rolleston immediately filed suit in federal court to assert that the law was the result of an overly broad interpretation of the U.S. Constitution’s commerce clause.  Rolleston represented himself in the case, HEART OF ATLANTA MOTEL, INC. v. UNITED STATES ET AL., which  went all the way to the United States Supreme Court.  Rolleston lost when the Supreme Court ruled that Congress was well within its powers to regulate interstate commerce in such a manner.  The Hilton Hotel now stands on the former site of the Heart of Atlanta Motel.

Texts in law school rarely have illustrations.  I know the motel mostly as a citation on pages of text, great grey oceans of somnambulent text.  This case is important in civil rights, though it is mentioned almost never in history texts.  What are these cases really about?  These photos offer us insight.

The Heart of Atlanta Motel aspired to greatness in the late 1950s and 1960s — evidenced by this publicity flyer photo from the Atlanta Time Machine; notice the flag flying for the motel’s Seahorse Lounge (Atlanta is landlocked):

Heart of Atlanta Motel publicity photo - Atlanta Time Machine

Heart of Atlanta Motel publicity photo – Atlanta Time Machine; not just a podunk “motor lodge,” but a “resort motel.”  Click for larger image.

For the 1960s, this place offered great amenities, including two swimming pools and in-room breakfast service.

Flyer for the Heart of Atlanta Motel, circa 1960 - Atlanta Time Machine image

Flyer for the Heart of Atlanta Motel, circa 1960 – Atlanta Time Machine image

This photo is amusing — I can just imagine the difficulties of launching a motor boat of this size in one of the swimming pools, obviously for a publicity stunt.  The photo is dated February 27, 1960, in the Pullen Library Collection.

Boat in the pool at the Heart of Atlanta Motel, 1960 - Atlanta Time Machine image

Boat in the pool at the Heart of Atlanta Motel, 1960 – Atlanta Time Machine image

To compare how times have changed, you may want to look at this aerial photo of the area, including the Heart of Atlanta Hotel, and compare it with modern photos which show the Hilton Hotel that replaced the property.

Rolleston appears to have had a big ego.  As noted above, he represented himself in this case, and he argued it in the Supreme Court.  Here’s a picture from about that time, from the University of Missouri-Kansas City Law School “Famous Trials” site:

Moreton Rolleston, Jr., owner of the Heart of Atlanta Motel and the attorney who argued the case at the Supreme Court - UMKC Law School image

Moreton Rolleston, Jr., owner of the Heart of Atlanta Motel and the attorney who argued the case at the Supreme Court – UMKC Law School image; photo: Wayne Wilson/Leviton-Atlanta

You may decide for yourself whether this fits the old legal aphorism that a lawyer who represents himself in a case has a fool for a client.  The Oyez site at the University of Chicago provides access to the audio of the oral arguments.  Did Rolleston argue ably?  Rolleston argued against Archibald Cox, who went on to fame in the Watergate scandals.  This appears to have been Rolleston’s only appearance before the Supreme Court; it was Cox’s ninth appearance (he argued 20 cases before the Court in his career, several well known and notable ones).

Heart of Atlanta vs. United States was argued on October 5, 1964The opinion was issued on December 14, 1964, a 9-0 decision against Rolleston and segregation authored by Justice Tom C. Clark (one of Dallas’s earliest Eagle Scouts).

This was a fight Mr. Rolleston picked.  He was not cited nor indicted for violation of the Civil Rights Act, but instead asked for an injunction to prevent the law’s enforcement; according to the published decision,

Appellant, the owner of a large motel in Atlanta, Georgia, which restricts its clientele to white persons, three-fourths of whom are transient interstate travelers, sued for declaratory relief and to enjoin enforcement of the Civil Rights Act of 1964, contending that the prohibition of racial discrimination in places of public accommodation affecting commerce exceeded Congress’ powers under the Commerce Clause and violated other parts of the Constitution. A three-judge District Court upheld the constitutionality of Title II, §§ 201(a), (b)(1) and (c)(1), the provisions attacked, and, on appellees’ counterclaim, permanently enjoined appellant from refusing to accommodate Negro guests for racial reasons.

Oyez summarizes the case question:

Facts of the Case 

Title II of the Civil Rights Act of 1964 forbade racial discrimination by places of public accommodation if their operations affected commerce. The Heart of Atlanta Motel in Atlanta, Georgia, refused to accept Black Americans and was charged with violating Title II.

Question 

Did Congress, in passing Title II of the 1964 Civil Rights Act, exceed its Commerce Clause powers by depriving motels, such as the Heart of Atlanta, of the right to choose their own customers?

The decision turned on the commerce clause, and the reach of Congressional power to regulate interstate commerce.

Decision: 9 votes for U.S., 0 vote(s) against
Legal provision: Civil Rights Act of 1964, Title II

The Court held that the Commerce Clause allowed Congress to regulate local incidents of commerce, and that the Civil Right Act of 1964 passed constitutional muster. The Court noted that the applicability of Title II was “carefully limited to enterprises having a direct and substantial relation to the interstate flow of goods and people. . .” The Court thus concluded that places of public accommodation had no “right” to select guests as they saw fit, free from governmental regulation.

Good decision. As my law professors described it, Americans enjoy the right to travel, a penumbral right of the Constitution. Inherent in that right is the right to rest in a hotel or motel at the end of the day, especially along a federally-funded highway, part of the U.S. Highway system or National Defense Interstate Highway System.

Heart of Atlanta Motel is gone.  The site is occupied by the Hilton Atlanta, today.

Interstate travel, and sleeping in hotels, continues.

Yes, this is mostly an encore post. Fighting ignorance requires patience.

Yes, this is mostly an encore post. Fighting ignorance requires patience.


Key part of Burwell decision: “Congress passed the Affordable Care Act to improve health insurance markets”

June 25, 2015

U.S. Supreme Court hearing oral arguments in King v. Burwell.  The decision issued on June 25, 2015. Image from Newsworks (who is the artist?)

U.S. Supreme Court hearing oral arguments in King v. Burwell. The decision issued on June 25, 2015. Image from Newsworks. [Continued search for credit information on this image turned up this caption; artist is Dana Verkouteren of Associated Press] “This courtroom artist rendering shows Michael Carvin, lead attorney for the petitioners, right, speaking before the Supreme Court in March. King v. Burwell, a major test of the Affordable Care Act, could halt health care premium subsidies in all the states where the federal government runs the insurance marketplaces. (AP Photo/Dana Verkouteren)

In all the rending of garments and gnashing of teeth about the Supreme Court’s decision in the Burwell case today, you’d be lucky to learn what the Court actually said.

Here are the key paragraphs of the majority’s decision (links added here), as written by Chief Justice John Roberts:

Reliance on context and structure in statutory interpretation is a “subtle business, calling for great wariness lest what professes to be mere rendering becomes creation and attempted interpretation of legislation becomes legislation itself.” Palmer v. Massachusetts, 308 U. S. 79, 83 (1939). For the reasons we have given, however, such reliance is appropriate in this case, and leads us to conclude that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.

*    *    *

In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

The judgment of the United States Court of Appeals for the Fourth Circuit is

Affirmed.

Go read the rest of the 47 pages (in the .pdf from the Supreme Court), if you wish to be well-informed.  The case probably isn’t at all what’s being reported in most venues.


Quote of the moment: Frankfurter, on due process

July 9, 2014

Supreme Court Justice Felix Frankfurter, The Collection of the Supreme Court of the United States (Artist: Gardener Cox).  Born Vienna, Austria, 1894. Died 1965.

Supreme Court Justice Felix Frankfurter, The Collection of the Supreme Court of the United States (Artist: Gardener Cox). Born Vienna, Austria, 1894. Died 1965. Associate Justice, 1939-1962

It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due Process is that which comports with the deepest notions of what is fair and right and just.

♦  Justice Felix Franfurter, dissenting in
Solesbee v. Balkcom, 339 U.S. 9, 16 (1950)


“Some there are”: Antonin Scalia, rock music, and high school graduation in churches

June 17, 2014

Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

Justice Antonin Scalia, dissenting to the Supreme Court’s denying to hear a case about high school graduations held in religious facilities, the denial of the writ of certiorari to Elmbrook vs. John Doe et al., 573 U.S. ______.

Justice Clarence Thomas joined Scalia in the dissent.

But, he argues, religion is protected by the First Amendment, our music choices are not.

Read the dissent (way down at the bottom).

Easter services at Elmbrook Church, in Brookfield, Wisconsin.

Easter services at Elmbrook Church, in Brookfield, Wisconsin.

I suppose to some, high school graduation ceremonies are a lot like being forced to listen to rap music at intersections.  To others, high school graduations may seem akin to religious experience.  Not sure either view means the ceremonies should be held in churches.

This case is 14 years in the justice system.

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“A day that will live in glory” — Frankfurter to Warren, on Brown v. Board

May 17, 2014

Read the rest of this entry »


Quote of the moment: Potter Stewart, on the freedom to procreate without government intrusion

August 31, 2013

Justice Potter Stewart, official portrait in the U.S. Supreme Court. Artist: Ruth A. Nestor Hamilton. Oyez image.

Justice Potter Stewart, official portrait in the U.S. Supreme Court. Artist: Ruth A. Nestor Hamilton. Oyez image.

Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. […] As recently as last Term, in Eisenstadt v. Baird, 405 U. S. 438, 405 U. S. 453, we recognized “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.

Potter Stewart (1915-1985) US Supreme Court Justice (1959-81)
Roe v. Wade, 410 U.S. 113, 169-170 (1973) [Concurring]
(Source)

Links added here, except “Source.”  Handing the scrub brush to WIST, so WIST may tip it to itself.


Old and Wise? Stones older than Supreme Court

December 8, 2012

Some wag at Associated Press noticed recently that the Rolling Stones’ average age puts them older than the U.S. Supreme Court.  (Did some one notice this before AP?)  Franklin Roosevelt criticized the Court as “nine old men.”  Women have improved the Court, but age sometimes makes us wonder, still, if new ideas wouldn’t help.

Rolling Stones in 2012, 50th anniversary

Left to right, Charlie Watts, Keith Richard, Ron Wood and Mick Jagger; Bill Wyman absent from this photo; Rolling Stones, 50th Anniversary Tour 2012 – Samir Hussein photo WireImage, via Rolling Stone magazine. Other than no ties, they dress not-too flamboyantly.

Maybe we should wonder about increasing the wisdom that comes with age:

Rolling Stones:

Mick Jagger, 69

Keith Richards, 68

Charlie Watts, 71

Ronnie Wood, 65

Bill Wyman (rejoining them on tour), 76

Average age:  69.8 years (calculated from whole years only)

U.S. Supreme Court:

Antonin Scalia, 76

Anthony Kennedy, 76

Clarence Thomas, 64

Ruth Bader Ginsburg, 79

Stephen Breyer, 74

John G. Roberts, 57

Samuel A. Alito, Jr., 62

Sonia Sotomayor, 58

Elena Kagan, 52

Average age:  68.4 years

U.S. Supreme Court, Roberts Court 2010 – Back row (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony Kennedy, and Ruth Bader Ginsburg – Wikimedia image. This bunch wears less colorful, but sillier costumes. Justice Ginsburg tends to favor neckwear the same way Keith Richards does; what else might they have in common?

A wise-beyond-his-teen-years camper at Camp Rising Sun of the Louis August Jonas Foundation, in the 1960s or early 1970s, observed, “You cannot be both young and brave, and old and wise.”  Certainly one would hope to achieve the happier medium of brave and wise (not necessarily in that order), but humans being who we are and experience being the master teacher that it is, we find ourselves on one end of both spectra, either wizened in age, or brave perhaps because of youth.

The Stones, celebrating their 50th year as a band in 2012, probably rock better than the Court does.  One can’t help wondering whether the wisdom of the Stones wouldn’t serve us better than that of the current court.  Ironically, those most wise at the Court tend to be the younger ones (Breyer definitely excluded).  I’d be inclined to swap out Alito and Scalia  for any two of the Stones.  Maybe Roberts for a third.

Thomas?  Well, he’s almost a contemporary, and I had lunch with him a couple of times (Senate staff).  I hate to criticize a lunch companion so.  But comparing Jagger’s record at the London School of Economics with Thomas’s record in academia, yeah, I could be persuaded.  I dealt with Breyer, too (not at lunch), and am inclined to think he could rock pretty well.

Perhaps the answer is that we need more rock and roll in the halls of justice.  Pete Seeger, Arlo Guthrie and Bruce Springsteen, among others, would probably agree.

If both groups banned the use of hair dye, would it improve anything they do?

Which bunch would you rather have dispensing final decisions on justice?  Which bunch would you prefer to see in concert?

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Go to the original source: Supreme Court’s decision on Obamacare

June 28, 2012

You can read the entire decision here:  http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

5-4 decision, Chief Justice Roberts voting to uphold the bill, Kennedy voting against and leading the dissent.

Official 2005 photo of Chief Justice John G. R...

Official 2005 photo of Chief Justice John G. Roberts (Photo credit: Wikipedia)

Syllabus from the case (links added for your convenience, not in the original):

NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF
HEALTH AND HUMAN SERVICES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 11–393. Argued March 26, 27, 28, 2012—Decided June 28, 2012*

*Together with No. 11–398, Department of Health and Human Services et al. v. Florida et al., and No. 11–400, Florida et al. v. Department of Health and Human Services et al., also on certiorari to the same court.

In 2010, Congress enacted the Patient Protection and Affordable Care Act in order to increase the number of Americans covered by health insurance and decrease the cost of health care. One key provision is the individual mandate, which requires most Americans to maintain“minimum essential” health insurance coverage. 26 U. S. C. §5000A.For individuals who are not exempt, and who do not receive health insurance through an employer or government program, the means of satisfying the requirement is to purchase insurance from a private company. Beginning in 2014, those who do not comply with the mandate must make a “[s]hared responsibility payment” to the Federal Government. §5000A(b)(1). The Act provides that this “penalty”will be paid to the Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the same manner” as tax penalties. §§5000A(c), (g)(1). Another key provision of the Act is the Medicaid expansion. The current Medicaid program offers federal funding to States to assist pregnant women, children, needy families, the blind, the elderly, and the disabled in obtaining medical care. 42 U. S. C. §1396d(a). The Affordable Care Act expands the scope of the Medicaid program and increases the number of individuals the States must cover. For example, the Act requires state programs to provide Medicaid coverage by 2014 to adults with incomes up to 133 percent of the federal poverty level, whereas many States now cover adults with children only if their income is considerably lower, and do not cover childless adults at all. §1396a(a)(10)(A)(i)(VIII). The Act increases federal funding to cover the States’ costs in expanding Medicaid coverage. §1396d(y)(1). But if a State does not comply with the Act’s new coverage requirements, it may lose not only the federal funding for those requirements, but all of its federal Medicaid funds. §1396c.

Twenty-six States, several individuals, and the National Federation of Independent Business brought suit in Federal District Court,challenging the constitutionality of the individual mandate and the Medicaid expansion. The Court of Appeals for the Eleventh Circuit upheld the Medicaid expansion as a valid exercise of Congress’s spending power, but concluded that Congress lacked authority to enact the individual mandate. Finding the mandate severable from the Act’s other provisions, the Eleventh Circuit left the rest of the Act intact.

Held: The judgment is affirmed in part and reversed in part.
648 F. 3d 1235, affirmed in part and reversed in part.

1. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit.
The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund. The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. Pp. 11–15.

2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30.

(a) The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity.” E.g., United States v. Lopez, 514 U. S. 549, 560. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so  affects commerce.

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” Pp. 16–27.

(b) Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. E.g., United States v. Comstock, 560 U.S. ___. The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such an expansion of federal power is not a “proper” means for making those reforms effective. Pp. 27–30.

3. CHIEF JUSTICE ROBERTS concluded in Part III–B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.

The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for the reasons explained, the Commerce Clause does not give Congress that power.It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.” Art. I, §8, cl. 1. In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, 657, the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31–32.

4. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III–C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause. Pp. 33–44.

(a) The Affordable Care Act describes the “[s]hared responsibility payment” as a “penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. It does not, however, control whether an exaction is within Congress’s power to tax. In answering that constitutional question, this Court follows a functional approach,“[d]isregarding the designation of the exaction, and viewing its substance and application.” United States v. Constantine, 296 U. S. 287,
294. Pp. 33–35.

(b) Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance. See New York v. United States, 505 U. S. 144, 169–174. Pp. 35–40.

(c) Even if the mandate may reasonably be characterized as a tax, it must still comply with the Direct Tax Clause, which provides:“No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” Art. I, §9, cl. 4. A tax on going without health insurance is not like a capitation or other direct tax under this Court’s precedents. It therefore need not be apportioned so that each State pays in proportion to its population. Pp. 40–41.

5. CHIEF JUSTICE ROBERTS, joined by JUSTICE BREYER and JUSTICE KAGAN, concluded in Part IV that the Medicaid expansion violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion. Pp. 45–58.

(a) The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.” Art. I, §8, cl. 1. Congress may use this power to establish cooperative state-federal Spending Clause programs. The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs. Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17. “[T]he Constitution simply does not give Congress the authority to require the States to regulate.” New York v. United States, 505 U. S. 144, 178. When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism. Cf. South Dakota v. Dole, 483 U. S. 203, 211. Pp. 45–51.

(b) Section 1396c gives the Secretary of Health and Human Services the authority to penalize States that choose not to participate in the Medicaid expansion by taking away their existing Medicaid funding. 42 U. S. C. §1396c. The threatened loss of over 10 percent of a State’s overall budget is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion. The Government claims that the expansion is properly viewed as only a modification of the existing program, and that this modification is permissible because Congress reserved the “right to alter, amend, or repeal any provision” of Medicaid. §1304. But the expansion accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for particular categories of vulnerable individuals. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. A State could hardly anticipate that Congress’s reservation of the right to “alter” or “amend” the Medicaid program included the power to transform it so dramatically. The Medicaid expansion thus violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion. Pp. 51–55.

(c) The constitutional violation is fully remedied by precluding the Secretary from applying §1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion. See §1303. The other provisions of the Affordable Care Act are not affected. Congress would have wanted the rest of the Act to stand, had it known that States would have a genuine choice whether to participate in the Medicaid expansion. Pp. 55–58.

6. JUSTICE GINSBURG, joined by JUSTICE SOTOMAYOR, is of the view that the Spending Clause does not preclude the Secretary from withholding Medicaid funds based on a State’s refusal to comply with the expanded Medicaid program. But given the majority view, she agrees with THE CHIEF JUSTICE’s conclusion in Part IV–B that the Medicaid Act’s severability clause, 42 U. S. C. §1303, determines the appropriate remedy. Because THE CHIEF JUSTICE finds the withholding—not the granting—of federal funds incompatible with the Spending Clause, Congress’ extension of Medicaid remains available to any State that affirms its willingness to participate. Even absent §1303’scommand, the Court would have no warrant to invalidate the funding offered by the Medicaid expansion, and surely no basis to tear down the ACA in its entirety. When a court confronts an unconstitutional statute, its endeavor must be to conserve, not destroy, the legislation. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 328–330. Pp. 60–61.

Read the entire decision, and its dissents, for the authoritative view . . .

Earlier related articles:


Activist Supreme Court?

June 25, 2012

Today’s the day, most likely, the Supreme Court will announce the results of the legal challenges to what has come to be called ObamaCare.

English: West face of the United States Suprem...

West face of the United States Supreme Court building in Washington, D.C. (Photo credit: Wikipedia)

In a twist of fate, conservatives are praying for an activist court to go against precedent, and strike the plan down.  They hope that will improve their chances of getting into the driver’s seat of federal government again in November, because a fiscal ditch is looming and they find the temptation too strong to resist.

Ezra Klein’s Wonkbook noted:

Most legal scholars think the mandate is constitutional, but few are confident it will be upheld. ”The U.S. Supreme Court should uphold a law requiring most Americans to have health insurance if the justices follow legal precedent, according to 19 of 21 constitutional law professors who ventured an opinion on the most-anticipated ruling in years. Only eight of them predicted the court would do so…Five of the 21 professors who responded, including Whitman, said the court is likely to strike down the coverage requirement. Underscoring the high stakes and complexity of the debate, eight described the outcome as a toss-up..” Bob Drummond in Bloomberg.

Klein’s post is titled “Everything you need to know about health care and SCOTUS in one post.”  He covers the waterfront — you should read it.

Interesting day.  I’ll be traveling.


Heart of Atlanta Motel and civil rights

December 28, 2011

PG posted this photo in one of his collections at Chamblee54:

Heart of Atlanta Motel, 1956 - Special Collections and Archives,Georgia State University Library

Heart of Atlanta Motel, 1956 - Special Collections and Archives,Georgia State University Library

I wondered whether this is the motel in the case testing the 1964 Civil Rights Act — and sure enough, it is.  The case was decided, finally, by the U.S. Supreme Court in 1964, Heart of Atlanta Motel, Inc., v. United States, 379 U.S. 241 (1964) .

This important case represented an immediate challenge to the Civil Rights Act of 1964, the landmark piece of civil rights legislation which represented the first comprehensive act by Congress on civil rights and race relations since the Civil Rights Act of 1875. For much of the 100 years preceding 1964, race relations in the United States had been dominated by segregation, a system of racial separation which, while in name providing for “separate but equal” treatment of both white and black Americans, in truth perpetuated inferior accommodation, services, and treatment for black Americans.

During the mid-20th century, partly as a result of cases such as Powell v. Alabama, 287 U.S. 45 (1932); Smith v. Allwright, 321 U.S. 649 (1944); Shelley v. Kraemer, 334 U.S. 1 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950); NAACP v. Alabama, 357 U.S. 449 (1958); Boynton v. Virginia, 364 U.S. 454 (1960) and probably the most famous, Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), the tide against segregation began to turn. However, segregation remained in full effect into the 1960s in parts of the southern United States, where the Heart of Atlanta Motel was located, despite these decisions.

The Atlanta Time Machine, a great collection of photos in the history of Atlanta and Georgia, has more photos, and this description of the site:

The Heart of Atlanta motel, located at 255 Courtland Street NE, was owned by Atlanta attorney Moreton Rolleston Jr.  Rolleston, a committed segregationist, refused to rent rooms at his hotel to black customers.  Upon passage of the Civil Rights Act of 1964, Rolleston immediately filed suit in federal court to assert that the law was the result of an overly broad interpretation of the U.S. Constitution’s commerce clause.  Rolleston represented himself in the case, HEART OF ATLANTA MOTEL, INC. v. UNITED STATES ET AL., which  went all the way to the United States Supreme Court.  Rolleston lost when the Supreme Court ruled that Congress was well within its powers to regulate interstate commerce in such a manner.  The Hilton Hotel now stands on the former site of the Heart of Atlanta Motel.

Texts in law school rarely have illustrations.  I know the motel mostly as a citation on pages of text, great grey oceans of somnambulent text.  This case is important in civil rights, though it is mentioned almost never in history texts.  What are these cases really about?  These photos offer us insight.

The Heart of Atlanta Motel aspired to greatness in the late 1950s and 1960s — evidenced by this publicity flyer photo from the Atlanta Time Machine; notice the flag flying for the motel’s Seahorse Lounge (Atlanta is landlocked):

Heart of Atlanta Motel publicity photo - Atlanta Time Machine

Heart of Atlanta Motel publicity photo - Atlanta Time Machine; not just a podunk "motor lodge," but a "resort motel." Click for larger image.

For the 1960s, this place offered great amenities, including two swimming pools and in-room breakfast service.

Flyer for the Heart of Atlanta Motel, circa 1960 - Atlanta Time Machine image

Flyer for the Heart of Atlanta Motel, circa 1960 - Atlanta Time Machine image

This photo is amusing — I can just imagine the difficulties of launching a motor boat of this size in one of the swimming pools, obviously for a publicity stunt.  The photo is dated February 27, 1960, in the Pullen Library Collection.

Boat in the pool at the Heart of Atlanta Motel, 1960 - Atlanta Time Machine image

Boat in the pool at the Heart of Atlanta Motel, 1960 - Atlanta Time Machine image

To compare how times have changed, you may want to look at this aerial photo of the area, including the Heart of Atlanta Hotel, and compare it with modern photos which show the Hilton Hotel that replaced the property.

Rolleston appears to have had a big ego.  As noted above, he represented himself in this case, and he argued it in the Supreme Court.  Here’s a picture from about that time, from the University of Missouri-Kansas City Law School “Famous Trials” site:

Moreton Rolleston, Jr., owner of the Heart of Atlanta Motel and the attorney who argued the case at the Supreme Court - UMKC Law School image

Moreton Rolleston, Jr., owner of the Heart of Atlanta Motel and the attorney who argued the case at the Supreme Court - UMKC Law School image; photo: Wayne Wilson/Leviton-Atlanta

You may decide for yourself whether this fits the old legal aphorism that a lawyer who represents himself in a case has a fool for a client.  The Oyez site at the University of Chicago provides access to the audio of the oral arguments.  Did Rolleston argue ably?  Rolleston argued against Archibald Cox, who went on to fame in the Watergate scandals.  This appears to have been Rolleston’s only appearance before the Supreme Court; it was Cox’s ninth appearance (he argued 20 cases before the Court in his career, several well known and notable ones).

Heart of Atlanta vs. United States was argued on October 5, 1964.  The opinion was issued on December 14, 1964, a 9-0 decision against Rolleston and segregation authored by Justice Tom C. Clark (one of Dallas’s earliest Eagle Scouts).

This was a fight Mr. Rolleston picked.  He was not cited nor indicted for violation of the Civil Rights Act, but instead asked for an injunction to prevent the law’s enforcement; according to the published decision,

Appellant, the owner of a large motel in Atlanta, Georgia, which restricts its clientele to white persons, three-fourths of whom are transient interstate travelers, sued for declaratory relief and to enjoin enforcement of the Civil Rights Act of 1964, contending that the prohibition of racial discrimination in places of public accommodation affecting commerce exceeded Congress’ powers under the Commerce Clause and violated other parts of the Constitution. A three-judge District Court upheld the constitutionality of Title II, §§ 201(a), (b)(1) and (c)(1), the provisions attacked, and, on appellees’ counterclaim, permanently enjoined appellant from refusing to accommodate Negro guests for racial reasons.

Oyez summarizes the case question:

Facts of the Case 

Title II of the Civil Rights Act of 1964 forbade racial discrimination by places of public accommodation if their operations affected commerce. The Heart of Atlanta Motel in Atlanta, Georgia, refused to accept Black Americans and was charged with violating Title II.

Question 

Did Congress, in passing Title II of the 1964 Civil Rights Act, exceed its Commerce Clause powers by depriving motels, such as the Heart of Atlanta, of the right to choose their own customers?

The decision turned on the commerce clause, and the reach of Congressional power to regulate interstate commerce.

Decision: 9 votes for U.S., 0 vote(s) against
Legal provision: Civil Rights Act of 1964, Title II

The Court held that the Commerce Clause allowed Congress to regulate local incidents of commerce, and that the Civil Right Act of 1964 passed constitutional muster. The Court noted that the applicability of Title II was “carefully limited to enterprises having a direct and substantial relation to the interstate flow of goods and people. . .” The Court thus concluded that places of public accommodation had no “right” to select guests as they saw fit, free from governmental regulation.

Good decision.

Heart of Atlanta Motel is gone.  The site is occupied by the Hilton Atlanta, today.


Scalia and Thomas: Neither is Caesar’s wife

November 18, 2011

It sure looks like a breach of ethics, but James Oliphant writes in the Los Angeles Times that there is no formal rule prohibiting a sitting Supreme Court justice from hobnobbing with a law firm set to argue a gargantuan case in a few months.

The day the Supreme Court gathered behind closed doors to consider the politically divisive question of whether it would hear a challenge to President Obama’s healthcare law, two of its justices, Antonin Scalia and Clarence Thomas, were feted at a dinner sponsored by the law firm that will argue the case before the high court.

The occasion was last Thursday, when all nine justices met for a conference to pore over the petitions for review. One of the cases at issue was a suit brought by 26 states challenging the sweeping healthcare overhaul passed by Congress last year, a law that has been a rallying cry for conservative activists nationwide.

The justices agreed to hear the suit; indeed, a landmark 5 1/2-hour argument is expected in March, and the outcome is likely to further roil the 2012 presidential race, which will be in full swing by the time the court’s decision is released.

The lawyer who will stand before the court and argue that the law should be thrown out is likely to be Paul Clement, who served as U.S. solicitor general during the George W. Bush administration.

Clement’s law firm, Bancroft PLLC, was one of almost two dozen firms that helped sponsor the annual dinner of the Federalist Society, a longstanding group dedicated to advocating conservative legal principles. Another firm that sponsored the dinner, Jones Day, represents one of the trade associations that challenged the law, the National Federation of Independent Business.

Another sponsor was pharmaceutical giant Pfizer Inc, which has an enormous financial stake in the outcome of the litigation. The dinner was held at a Washington hotel hours after the court’s conference over the case. In attendance was, among others, Mitch McConnell, the Senate’s top Republican and an avowed opponent of the healthcare law.

The featured guests at the dinner? Scalia and Thomas.

One wishes for some of the usual journalistic “balancing,” with someone to note who among the crowd represents the opposite side in the case, and someone else to note that the dinner had a lot of other sponsors.  But one might get uneasy thinking that the usual journalistic balancing can’t be mustered here, and that Scalia and Thomas just don’t care about appearances of ethical violations, if they can get away with it.

Lower court judges have clear ethical guidance on the issue, counseling against such appearances:

It’s nothing new: The two justices have been attending Federalist Society events for years. And it’s nothing that runs afoul of ethics rules. In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal judges.

If they were, they arguably fell under code’s Canon 4C, which states,A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event.“

Those rules do not apply to the nine people who sit on the nation’s highest court.

In those few times I lunched with Thomas and worked with him, when he staffed environmental issues for Indiana’s Missouri’s Sen. John Danforth, I found him an agreeable lunch companion and smart, but a great idealogue.  Had I known then what we all know now, I would have paid closer attention, asked different and sharper  questions, and kept notes.  And I might have dropped a few hints about history, and Caesar’s wife.  Supreme Court justices should consider themselves wedded to the American republic, and act accordingly.

What do you think, Dear Reader?  Was this a violation of ethics, even if not required by the rules that apply to Supreme Court justices?


Justice Ginsburg errs, wonderfully

July 8, 2009

David Bernstein writing at the Volokh Conspiracy corrects Justice Ginsburgh.  She told a reporter for the New York Times that she thought nominee Sonia Sotomayor might be, when confirmed, the first justice who didn’t speak English as a first language at home.

Not so fast, Bernstein said.  In a wonderful and fun display of historical knowledge and research, suggests several justices from earlier appointments who spoke something other than English first.

  • Justice Louis Brandeis, German –
    “I’m not sure what language was primarily spoken in the Brandeis household, but I would guess German, based on the following information: Brandeis’s parents were German-speaking immigrants; Brandeis attended a German-language elementary school, the ‘German and English Academy;’ the school was co-founded by his father, suggesting that his father had great fondness for the German language and culture; and Brandeis spent two of his teenage years studying in Germany.”
  • Maybe Justice Arthur Goldberg, Yiddish –
    “It’s also possible that Arthur Goldberg’s parents, immigrants from a shtetl in Ukraine, spoke Yiddish at home.”
  • Justice Felix Frankfurter almost definitely, German –
    ” . . . a commenter points out that Felix Frankfurter’s family didn’t arrive in the U.S. from Vienna until Frankfurter was twelve years old.”
  • Justice Clarence Thomas, Gullah –
    ” . . . I remembered that Justice Thomas’s first language is Gullah, an Afro-English creole dialect”

Thomas spoke Gullah originally?  When we shared a wall on Senate staff (he on John Danforth’s staff, I on Orrin Hatch’s), we also shared lunch on a few occasions, and meetings on energy and environment issues.  I was struck by his great enunciation, the clear way that he used his nearly baritone voice to make English work.  I wonder whether he can still command Gullah — it’s got to be one of the most minority languages on Earth right now.  Fascinating.

Are there other Supreme Court justices who may have spoken a language other than English, first?  Historians?  Got candidates? Justice Warren Burger’s family was of German descent, and in Minnesota, when he was born, it would not have been uncommon for an entire town to have German as its primary language.  I haven’t found anything to suggest that’s the case, though. Justice William J. Brennan’s parents were Irish immigrants, so there is an outside chance they spoke some Gaelic dialect.

I wouldn’t be surprised if we could find another justice who served between 1840 and 1960 with German as a first language.

How about Cardozo, and a Sephardic dialect, or Portuguese?  Any justices of French descent?  Welsh descent?  Readers, help out!


Texas Darlin’ on Sotomayor: Still ugly

June 15, 2009

I can’t bite my tongue and let idiots rage on unfairly and inaccurately about important matters.

Earlier I noted the difficulties with reality at Texas Darlin’.  The warden of the blog dropped by and suggested I should join the discussion there if I had something to say.  It always ends badly.  Someone there says something plug ugly stupid, and I note the facts.  My posts get edited, or censored.

Some post linked there, and I looked.  I couldn’t resist.  The owner and commenters are flailing around like a bass in the boat, trying to make a case that Sonia Sotomayor shouldn’t be a justice of the Supreme Court.  They have convinced themselves that she’s a racist, she’s sexist, she got where she is solely because of affirmative action and the Great Cabal that Runs the World.  And they are stuffing tinfoil in their ears now — it makes their hats leak, but it keeps them from hearing anything that might upset them.

I expect they’ll remove my posts soon.  If you care, I’ve made some defense of Sonia Sotomayor, and I copied the posts below the fold.  Texas Darlin’ inmates correspondents repeat every canard about Sotomayor you can imagine.  And some you can’t imagine.

Texas Darlin’ is neither.

I am persuaded to do a series of posts on the nomination of Sotomayor.  In the interim, here’s my attempt to square things at Texas Darlin’, below the fold.

Read the rest of this entry »


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