SCOTUS

Breyer Suggests That HCR Could Appear Before Supreme Court

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Retiring Justice stood with corporation over middle class homeowners

Much like Ilya Shapiro did a few days ago, Tim Carney writes that retiring Supreme Court Justice John Paul Stevens is no friend of the little guy:

President Obama said his nominee to replace John Paul Stevenson theSupreme Courtwould “be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

Tell that to the “ordinary citizens” of New London, Conn., whose homes were stolen by the government for use by real estate developers at the request of the largest drug company in America — with the approval of Justice Stevens.
[…]
Stevens wrote in Kelo that the Constitution’s definition of “public use” for eminent domain takings included plans for a high-rise hotel intended to make Pfizer’s new building nearby more attractive. As a result, seven neighborhood families who refused to sell their homes to Pfizer were forced out by eminent domain — a stark example of “powerful interests” drowning out “ordinary citizens.”

The New London Development Corporation — a private, nonprofit developer the city put in charge of razing and rebuilding the neighborhood — was headed by Claire Gaudiani, who was married to Pfizer executive David Burnett. As the Hartford Courant reported in 2001, Burnett was perfectly honest about why the government ought to bulldoze the neighborhood next to his company’s new building: “Pfizer wants a nice place to operate. We don’t want to be surrounded by tenements.”

Where do potential SCOTUS nominees stand on the Second Amendment?

Over at the Volokh Conspriacy, Dave Kopel takes a brief look at prospective Supreme Court nominees and their record on the Second Amendment:

In order from worst to not-all-bad:

Strongly-ideological, highly-committed gun prohibitionist: Harold Koh.

Extensive record of anti-Second Amendment leadership: Secretary of State Clinton, Sen. Sheldon Whitehouse, Gov. Deval Patrick.

Limited but clearly negative record on right to arms: Judge Diane Wood, Judge Merrick Garland.

Mixed record, but with very little positive: Amy Klobuchar.

Mixed record: Cass Sunstein, Janet Napolitano [negatives include the ridiculous Dept. of Homeland Security report conflating political dissent with terrorism; as governor she signed some pro-right to arms legislation, and vetoed other bills], Jennifer Granholm [like Napolitano, a mixed record as governor, including signing some important reforms].

John Paul Stevens: No friend of liberty

As Justice John Paul Stevens prepares to leave the Supreme Court, Ilya Shapiro takes a look back at his career:

John Paul Stevens, the oldest-ever and (by the end of the term) second-longest-serving Supreme Court justice, has had a long career that, judging by his fitness regimen—the envy of men much younger than he—could have continued for many years yet.  Justice Stevens is to be commended for his record of service in a variety of positions in the public and private sector.

Unfortunately, the jurisprudential legacy he leaves behind is much more checkered than his personal integrity and professionalism: Justice Stevens “grew” from his country-club Republican roots to becoming the Court’s liberal lion.  While a friend of liberty in certain limited circumstances, he ultimately hangs his hat on supporting government action over the rights of individuals in contexts ranging from property rights (Kelo v. New London) to the Second Amendment (D.C. v. Heller) to free speech (Citizens United and Texas v. Johnson, the flag-burning case) to executive agency power (Chevron).  And even on those issues where friends of liberty can disagree in good faith as a matter of policy, such as abortion and the death penalty, Stevens admittedly and unabashedly asserted his own policy preferences instead of following the law.

Republican SCOTUS Nomination Plans: A Fight, But No Filibuster

Republicans are readying themselves for a fight over the upcoming Supreme Court nomination hearings, but appear to have already taken the filibuster option off the table:

Conservative judicial activists say they won’t ask their Republican allies to go to the mat over President Barack Obama’s nominee to replace Supreme Court Justice John Paul Stevens by pressing for the ultimate weapon in a court fight – a filibuster.

Instead, they say the nomination of a Democrat to the court will be an opportunity to cement the support of the tea party movement, broaden their base, and motivate supporters to turn out to support Republicans in the mid-term elections in November.

Taking the filibuster off the table is a smart idea. To put it bluntly, it’s unlikely that the 41 Republicans in the Senate will be able to stick together to filibuster the kind of “liberal but not controversial” nominee that we’re likely to see from Obama. At the very least, I would expect to see most if not all of the nine Republicans who ended up voting for Sonia Sotomayor to walk across the aisle to vote to invoke cloture should there be any attempt to filibuster. Moreover, unless Obama does surprise everyone and select someone with a controversial record, which I find unlikely, Senate Republicans would likely lose the public relations war over the nomination. Not a smart thing to do only months before a crucial mid-term election.

Stevens to retire from SCOTUS

Supreme Court Justice John Paul Stevens will retire this summer, giving President Barack Obama his second SCOTUS pick:

Stevens said Friday he will step down when the court finishes its work for the summer in late June or early July. He said he hopes his successor is confirmed “well in advance of the commencement of the court’s next term.”

Stevens’ announcement leaves ample time for the White House to settle on a successor and for Senate Democrats, who control a 59-vote majority, to hold confirmation hearings and a vote before the court’s next term begins in October. Republicans have not ruled out attempts to delay confirmation.

Stevens’ announcement had been hinted at for months. It comes 11 days before his 90th birthday.

Appointed by Gerald Ford in 1975, Stevens has aligned himself with “liberal” wing of the Court, so with Obama making the pick the ideological divide will not be affected.

Slate already has a list of potential nominees. Whoever it is will be named quickly and they will be a safe pick. President Obama and Democrats will want to avoid a tough confirmation fight that could stretch into late summer of an election year.

Republicans look to the Supreme Court for help with ObamaCare

The Hill notes that Republicans are looking to the Supreme Court to stop ObamaCare if all other avenues fail:

Republicans admit it will be difficult for Congress to repeal the legislation in the next few years, but they see a potential ally in the Supreme Court.

“It’s very probable that a number of provisions in this monstrosity violate constitutional principles,” said Sen. Jeff Sessions (Ala.), the senior Republican on the Senate Judiciary Committee. “I think there will be a lot of ongoing litigation for years to come.”

Sessions said the provision in the law that requires individuals to buy insurance or face a penalty raises “very serious constitutional questions.”

This is probably a misplaced hope. Let’s face it, the Supreme Court is not exactly a beacon of liberty, even in recent years with less of a progressive presence. Yes, there have been some rulings that restored basic constitutional principles, such as District of Columbia v. Heller, Citizens United v. FEC and Boumediene v. Bush. However, there is a much longer history, specifically in the last 80 years, where the Court has undermined core constitutional principles.

Judge Napolitano: Supreme Court Will Strike Down ObamaCare, But Not Until 2018

Judge Andrew Napolitano joins those predicting that the health care reform bill will be struck down, although his time frame is far longer than anyone else’s:

In an exclusive interview with Newsmax.TV’s Ashley Martella, Napolitano says the president’s healthcare reforms amount to “commandeering” the state legislatures for federal purposes, which the Supreme Court has forbidden as unconstitutional.

“The Constitution does not authorize the Congress to regulate the state governments,” Napolitano says. “Nevertheless, in this piece of legislation, the Congress has told the state governments that they must modify their regulation of certain areas of healthcare, they must surrender their regulation of other areas of healthcare, and they must spend state taxpayer-generated dollars in a way that the Congress wants it done.

“That’s called commandeering the legislature,” he says. “That’s the Congress taking away the discretion of the legislature with respect to regulation, and spending taxpayer dollars. That’s prohibited in a couple of Supreme Court cases. So on that argument, the attorneys general have a pretty strong case and I think they will prevail.”

(…)

Napolitano tells Newsmax that the longstanding precedent of state regulation of the healthcare industry makes the new federal regulations that much more problematic.

Will The Supreme Court Strike Down ObamaCare? Don’t Be So Quick To Say Yes

The New York Times’ long-time SCOTUS reporter Linda Greenhouse takes a look at how the current court might look at the challenges to the health care reform law:

The challengers invoke and seek to build upon the Rehnquist court’s “federalism revolution” that flowered briefly during the 1990’s. In a series of 5-to-4 rulings, the court took a view of Congressional authority that was narrower than at any time since the early New Deal. The court struck down a federal law that barred guns near schools, on the ground that possession of a gun near a school was not the type of activity that the Constitution’s Commerce Clause authorized Congress to regulate. It ruled that Congress could not require states to give their employees the protections of the federal laws against discrimination on the basis of age or disability. It ruled that the federal government couldn’t “commandeer” state officials to perform federal functions like federally mandated background checks of gun purchasers.

As Greenhouse points out, though, the Roberts Court is very, very different from the 1990s Rehnquist Court when it comes to issues regarding the power of the Federal Government:

Justice John Paul Stevens Says He Will Retire Within Three Years

Justice John Paul Stevens, who will turn 90 next month and has been on the Supreme Court since 1975, discussed his retirement plans, sort of, in the latest issue of The New Yorker:

How long will Stevens remain on the Court? Good genes (one of his older brothers practiced law until he was ninety-one), a happy home, plenty of exercise, and even more luck could allow Stevens to keep up the fight into his tenth decade. Last December, he had lunch with Peter Isakoff, a Washington lawyer who was one of his early Supreme Court law clerks. “He had just played tennis that morning—singles!—and I was just kind of amazed,” Isakoff recalled. “And so I asked him, ‘Do you still run?’ And he looked at me and said, ‘Well, how else are you going to get to the ball?’ ”

With the election of Barack Obama, the question of Stevens’s retirement has become more pressing. Even though Stevens was appointed by a Republican President, many assume that he would never willingly have turned his seat over to George W. Bush. I asked Stevens about his plans.

“Well, I still have my options open,” he said. “When I decided to just hire one clerk, three of my four clerks last year said they’d work for me next year if I wanted them to. So I have my options still. And then I’ll have to decide soon.” On March 8th, he told me that he would make up his mind in about a month.

(…)

“You can say I will retire within the next three years. I’m sure of that.”

My guess is that it will happen sooner rather than later, possibly this year.

Interestingly, Stevens also weighs in, sort of, on the continuing war of words between the White House and Chief Justice Roberts over the State of the Union:


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