Monthly Archives: June 2015

Green Light for Redistricting Commissions

By tmess2 | Published June 29, 2015

In several states, voters (not trusting their legislators to be able to resist “stacking the deck” when drawing congressional district boundaries) have opted to take that power away from their legislators and place it with a non-partisan commission.  Today, in a 5-4 decision, the United States Supreme Court found that the U.S. Constitution gave the voters of the states the right to choose this method for drawing congressional district lines.

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Bernie Sanders Could Win the NH Primary, IF he Can Get on the Ballot

By DocJess | Published June 28, 2015

Bernie Sanders is doing very well in New Hampshire. The latest poll has him down by only 8 points, plus or minus 5.2, meaning the spread is really 3 – 13 points.  The RCP average has him down by 15, which is not bad this far out. If he keeps pulling in the kind of numbers he’s been getting both for speeches and dollars, he could really win the New Hampshire primary, if it wasn’t for a little problem with their candidacy statement.

After the jump, the legalese, some commentary and a poll.

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Marriage is a Fundamental Right

By tmess2 | Published June 26, 2015

Most people would not debate that statement.   And the Supreme Court has previously recognized that basic principle.  Some, however, believe that their definition of marriage is the only definition of marriage that has ever been recognized in this country.  Today, in a 5-4 decision by Justice Kennedy, the majority of the Supreme Court thoroughly set forth the historical facts showing that the definition of marriage and what it means to be married has been ever-changing throughout history.  In light of the ever-changing nature of marriage, laws banning gays and lesbians from marrying their preferred partners simply represented discrimination against gays and lesbians, violating the equal protection clause.

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Is John Roberts Channeling Earl Warren?

By DocJess | Published June 26, 2015

Yesterday’s SCOTUS decision on the ACA was penned by the Chief Justice. It was thoughtful, legal, and went to the intent of the legislation. It also used Scalia’s own words against him, which is just plain fun.

But the overriding question is whether or not Roberts is doing to Bush what Warren did to Eisenhower; that is, transcending politics to actually be a constitutionalist. Roberts is not the smartest Supreme, that position belongs to Antonin Scalia, who places politics and his own racism, misogyny, and homophobia (not to mention hatred of Democrats) above what he knows to be legally and constitutionally correct. Originally, it seemed that Roberts was choosing that course. Over time, he more seemed to pick large decisions and make them 1:1 Right Wing to Left Wing.

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Pro-business Conservatives and the Affordable Care Act

By tmess2 | Published June 25, 2015

For the third time in four years, the fate of the Affordable Care Act rested with the United States Supreme Court.  Early this morning, by a 6-3 vote, the United States Supreme Court kept the Affordable Care Act (and the health insurance industry) alive.  If you look at all three case over the past four years, the key votes on the Supreme Court have belonged to the two pro-business conservatives (Justice Kennedy and Chief Justice Roberts).  The remaining justices have been predictable — the liberals supporting the Affordable Care Act and the three ultra-conservatives opposing.  If the past is any predictor for the future, any remaining challenges to the Affordable Care Act may rise or fall on what’s good for business.

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Guide to Decision Days-Supreme Court FAQs

By tmess2 | Published June 24, 2015

I, and others, post on legal issues for the simple reason that almost every major political issue ends up in the courts — either as parties trying to use the courts to achieve what they could not achieve in the legislature or the simple effort of parties to apply a new law to particular situations.  For a variety of reasons, many politically significant decisions are issued by the Supreme Court in two or three key days near the end of June.  Since most political junkies are not avid court watchers until June, here are some FAQ’s about what will be happening between now and Monday (or maybe even later).

1)  Do we know what opinions will be issued on which days?  No, the Supreme Court keeps this information pretty much under wraps (in part because an opinion can be pulled at the last second if any  Justice wants one more chance to think about it).  

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Supreme Court Decisions: The Final Week

By tmess2 | Published June 22, 2015

Today, the Supreme Court issued four opinions, leaving seven cases still pending from this year.  They also announced that they will be issuing opinions on Thursday and Friday.  With two more opinion days this week, there is a significant chance that the last of the opinions will be issued on Friday, but it is slightly more likely that the last one or two will come on Monday (with a slim chance of a second opinion day next week).  Additionally, with today’s opinions, it is possible to make a good guess on who has which case.

From January, it is all but certain that Justice Kennedy has the Fair Housing case.  That is not necessarily good for civil rights activists, but there were worse possibilities.

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Immigration and Marriage

By tmess2 | Published June 20, 2015

In politics, leaked information is rather common.  It always seems that a potential proposal or policy change hits the news while it is still under consideration.  The judiciary, and particularly the Supreme Court, has been mostly immune from this practice.  The lack of solid information on what the Supreme Court has decided in any particular case before the official release of the decision leads those who follow the Supreme Court to try to read omens and clues from a variety of sources — the questions asked at oral argument, which justices have issued opinions from a particular two-week argument session, and sometimes what the justices have said in another opinion.

As we near the end of the active part of this year’s Supreme Court term, this past week saw a flood of opinions (nine opinions) leaving eleven cases to be issued presumably between Monday and July 1.  (At the present time, the Supreme Court will almost certainly be handing down some opinions on Monday, June 22.  It is unlikely that they will hand down eleven opinions on Monday.  The Supreme Court has not yet announced any other days for the next seven days.  Jf the Supreme Court is going to hand down all opinions this week, there will probably be one or two more days.  If not, we will see at least some opinions on June 29, and maybe even on June 30 or July 1.)  There were a couple of interesting Free Speech cases that I will probably post something on during the down time of July, but the big four cases of the second half of the term remain for this last push (fair housing, redistricting, health insurance subsidies, and same-sex marriage).  The big surprise this week, however came in an unexpected case, Kerry v. Din.  When this case came to the Supreme Court, it looked like a case about immigration law and the virtually unreviewable discretion of embassy staff to reject a visa request.  However, this case arose in the context of the spouse of a U.S. citizen and court watchers are now wondering what the discussion of marital rights in this case might hint about the same-sex marriage cases.

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Supreme Court and Foreign Policy

By tmess2 | Published June 14, 2015

One of the basic lessons that law students learn in law school is the importance of “framing” an issue.  The “legally correct” result of a case often depends on how the issue is framed.

This past week, the United States Supreme Court decided Zivotsky v. Kerry, a case involving the constitutionality of a 2002 statute requiring the State Department to designate that a person born in Jerusalem as being born in Israel in passports and consular report if that person requested.  In a 5-1-3 decision, the Supreme Court struck down this statute.  (The 1 was Justice Thomas who would have struck down the statute with regards to the passport requirement but left it in place for the consular report).

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