I doubt there are very many people who would think it was a good idea to add trial lawyers to the mix of pain and suffering in Newtown, Connecticut. But I find myself hoping there will be at least one good litigator on the scene in the coming months.
In his recent book on the United States Supreme Court under Chief Justice John Roberts, CNN’s Jeffrey Toobin contends that Roberts and other conservatives are “judicial activists.” Judicial activism, he posits, is when the judiciary overrules democratically elected branches of government.
Toobin has a First Amendment right to define judicial activism however he wants, but he is being disingenuous. “Judicial activism” generally has a negative connotation. When is the last time you heard a Supreme Court Justice proudly proclaim “I am a judicial activist!”?
Courts, including the Supreme Court, play an important role in our constitutional system that includes checks and balances. When democratically elected branches of government violate the Constitution, Justices have an obligation to declare their actions void. This should not be called “activism,” it should be called “doing their job.”
Chief Justice John Roberts aimed very high in his opinion on the Affordable Care Act Thursday. He may have hit his target.
John Roberts is a) the smartest member of the Court, b) way way way smarter than any of the zillion pundits who didn’t see this particular ruling coming, and c) perhaps in John Marshall’s class. I say this even though I was hoping the Court would declare the entire Affordable Care Act unconstitutional. Roberts clearly defended the two biggest principles in the case — that there are limits to the commerce power, and (a pleasant surprise!) that the spending power does not give Congress the right to dragoon the states by threatening federal funding which the states have no realistic choice to forego. And most of all he clearly articulated a principle that many of the elites in our legal and political system have long ignored — that the Constitution matters, it is the bedrock of our system of laws, and you cannot transform a government of enumerated powers into one of plenary powers by majority vote.
Here’s what’s at stake at the Supreme Court this week as it considers challenges to the Patient Protection and Affordable Care Act (a.k.a. Obamacare): whether we will move from the American model of democracy toward a British one. Continue reading
This week, the United States Supreme Court will hear six hours of oral arguments on the constitutionality of Obamacare. Oral arguments are usually limited to one hour, which suggests something about the gravity of this case.
From an originalist perspective, there is little doubt that Congress’s requiring individuals to purchase health insurance is unconstitutional. Yet such a requirement is necessary if we are to have affordable, universal health care.
The solution to this dilemma is to abandon a national approach to health care and return the matter to the states. Continue reading
Mark pointed out the other day a newspaper story about a pair of ethicists arguing that newborn babies shouldn’t be treated as persons before the law. The ethicists say that being born does nothing to change the nature of the infant’s internal existence or cognitive ability. So if she was not a person before birth, she isn’t afterwards, either – and if she can be aborted before birth, she can be “aborted” for some time after birth, too.
I am tempted to dismiss the conclusion as mere silliness from clueless academics. But I wonder if there’s something we can learn from even the silliest people. Continue reading
From today’s London Telegraph:
I always wonder if folks like these are actually pro-life plants. I agree that there is no meaningful distinction between a late term abortion and killing a baby out of the womb.
In the 1950s, the University of Pennsylvania denied tenure to one of my graduate school professors, the great constitutional law scholar Henry J. Abraham. His dean assured him that he would eventually be promoted, but the school had already “tenured too many Jews this year.”
The University of Pennsylvania is a private school, but the University of Texas is not. As such, the Fourteenth Amendment prohibits it from denying to “any person within its jurisdiction the equal protection of the law.”
The U.S. Supreme Court recently agreed to hear a case considering whether the University of Texas may favor some citizens over others on the basis of race. Many legal questions are complex. This one is not. Continue reading
On January 11, 2012, the United States Supreme Court unanimously declared that religious groups should be able to choose their leaders without governmental interference. In doing so, it rejected arguments by the Obama administration that government regulations trump the free exercise of religion.
It is true that Hosanna-Tabor v. EEOC involved a “called” teacher at a Lutheran school, but the Court properly reasoned that the “ministerial exception” traditionally afforded to religious leaders must apply to a wide range of leaders within ecclesiastical bodies.
Surprisingly, no Justice mentioned the obvious tension between this decision and the 2010 case Christian Legal Society v. Martinez. Continue reading