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  #26  
Old 02-19-2012, 02:25 PM
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Default Re: SCOTAL Itch

The Montana Supreme Court's campaign finance decision looks doomed. SCOTUS granted the stay application presented to Justice Kennedy, which means that the Montana ruling is stayed until SCOTUS decides whether to take the case. Of course, the fact that SCOTUS granted the stay means that at least five justices think the parties challenging the Montana case have a "substantial likelihood of success on the merits," which kinda makes granting cert. a foregone conclusion.

Justices Ginsburg and Breyer wrote:

Quote:
Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” Id., at ___ (slip op., at 42). A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.
Unfortunately, they were among the dissenters in Citizens United, and there's no indication of a change of heart by anyone in the Citizens United majority. Even Ginsburg and Breyer voted to grant the stay "[b]ecause lower courts are bound to follow this Court’s decisions until they are withdrawn or modified[.]" That suggests no one is taking seriously the Montana Supreme Court majority's argument that its case is sufficiently distinguishable on its facts to render Citizens United inapplicable.

There's not enough time left in the current SCOTUS term for the case to get decided through normal channels. It'll carry over until next term unless a majority of the justices think that a summary reversal is appropriate.
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  #27  
Old 03-26-2012, 07:05 PM
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Default Re: SCOTAL Itch

The first oral argument in the health care cases took place today, limited to the issue of whether the federal Anti-Injunction Act bars lawsuits challenging the individual mandate prior to government action to enforce the mandate. A yes answer would mean that all the lawsuits challenging the mandate magically disappear. However, based on an admittedly quick 'n' dirty review of the argument transcript, a yes answer appears about as likely a young, hoodie-wearing African American male being viewed and treated as an actual human being in Florida. AFAICT, none of the justices is interested in dismissing the pending ACA cases on Anti-Injunction Act grounds.

No huge surprises there. Even the Justice Department opposes the AIA argument. The Court had to appoint an amicus curiae to argue in favor of dismissal.

The big issues, which it now looks highly likely the Court will decide, are whether the individual mandate is a valid exercise of Congress' commerce power and/or taxing power and whether the health care law's Medicaid provisions is an unconstitutionally coercive exercise of the spending power. The odds of a Court this conservative upholding the mandate look p. slim.

The transcript and audio files of today's arguments are available here.
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  #28  
Old 03-26-2012, 07:29 PM
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Default Re: SCOTAL Itch

After attempting to read some of this legalese crapola, I'm starting to favor a consitutional amendment making English the official language of the United States. This is the US dammit, learn to speak English or get out. :shakefist:
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  #29  
Old 03-26-2012, 09:53 PM
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Default Re: SCOTAL Itch

Why is the Obama administration arguing against the Anti-Injunction Act, if the odds are so slim the mandate will be upheld? Won't it be really damaging to have a decision against it before the election?
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  #30  
Old 03-26-2012, 10:07 PM
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Default Re: SCOTAL Itch

ETA: n/m I misunderstood the question.
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  #31  
Old 03-26-2012, 10:32 PM
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Default Re: SCOTAL Itch

Quote:
Originally Posted by erimir View Post
Why is the Obama administration arguing against the Anti-Injunction Act, if the odds are so slim the mandate will be upheld?
That's a damn fine question. Not only has the administration done a total about face on the AIA issue, but it's gone all-in on the mandate as well, arguing that if the Court invalidates the mandate it must also throw out the provisions of the Affordable Care Act requiring coverage for preexisting conditions and prohibiting increased premiums based on preexisting conditions.

I doubt it, but the administration and Justice Department might be convinced they'll win on the merits. That's borderline delusional, but hey, the higher-ups in the Clinton administration managed to convince themselves beyond all doubt that the whole "oral sex isn't sex" thing would be a slam dunk public relations winner. :shrug:

Quote:
Originally Posted by erimir View Post
Won't it be really damaging to have a decision against it before the election?
You'd certainly think so. I suspect the administration has a massive spin campaign ready to go the instant the decision is announced, maybe something along the lines of how the Supreme Court's ruling establishes that President Obama is the only thing standing between us and a wingnut Hobbesian state of nature.
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  #32  
Old 03-28-2012, 05:45 PM
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Default Re: SCOTAL Itch

I've never pretended to be anything other than a fool, so engaging in fool's errands like predicting the outcome of appellate cases from statements made during oral arguments doesn't bother me.

Looks like the best the administration can hope for is a 5-4 loss on the individual mandate issue. The split is, well, unsurprising:

AGAINST: Roberts, Kennedy, Scalia,Thomas,1 Alito

FOR: Ginsburg, Breyer, Sotomayor, Kagan (maybe)

The transcript of yesterday's arguments regarding constitutionality of the individual mandate (pdf, 133 pages) is here.

Today's arguments are about (1) how much of the Affordable Care Act fails if the individual mandate gets shot down, and (2) constitutionality of the Medicaid expansion provisions. Reports indicate that the first issue is reducing the justices to a state of gibbering incontinence.2 Wouldn't be surprised to the Court formulate some broad, squishy criteria and remand the case to the court of appeals for the brutal work of applying those criteria to the ACA on a provision-by-provision basis. Hell, they might even remand to the trial court for an evidentiary hearing.

1Thomas almost never says anything during oral arguments and yesterday was no different. However, his ideological leanings and past actions on the Court leave no room for reasonable debate about how he'll vote.
2Of course, some are closer to that particular destination than others.

ETA:

The Medicaid arguments are over, and it looks to me like the challenge to the ACA's Medicaid expansion provisions will fail in a big way. The argument from the states is that requiring expansion of Medicaid benefits on pain of losing all existing federal Medicaid funds is an unconstitutionally "coercive" exercise of Congress' spending power. I'd say that most of the justices agree that an unconstitutionally coercive exercise of the spending power can exist, but not a one of 'em (except maybe Thomas) thinks this is it.

Transcripts:
Medicaid (pdf, 102 pages)
Severability (pdf, 100 pages)

Ain't nothin' left to do in the ACA cases 'cept wait for a decision.
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Last edited by Stephen Maturin; 03-28-2012 at 09:30 PM.
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  #33  
Old 03-28-2012, 06:15 PM
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Default Re: SCOTAL Itch

Quote:
Originally Posted by Stephen Maturin View Post
Wouldn't be surprised to the Court formulate some broad, squishy criteria and remand the case to the court of appeals for the brutal work of applying those criteria to the ACA on a provision-by-provision basis.
Yeah I just went to lunch and heard the 5-minute news update at noon on NPR, and started thinking about how, after striking down the mandate, they will just drop a completely incomprehensible footnote1 that does not actually address severability. Then they can come back and endorse whatever the Fourth Circuit comes up with.

1We need not recite a precise and overly mechanical checklist of relevant factors in order to resolve this issue, and therefore decline to do so here. Of course, these principles do not, in general, lend themselves to reduction independent of factual context, but rather arise where a particular statutory provision exists in sufficiently discernible proximity to - and evinces substantial operative connection with - a circumstantial and constructive nexus of fact and law that touches upon or affects a Constitutionally-cognizable interest as contemplated by the body of case law. These competing interests must be weighed against countervailing interest to the extent required by the Constitution.
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  #34  
Old 03-28-2012, 06:38 PM
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Default Re: SCOTAL Itch

:laugh:

emailing that footnote to Scalia's head law clerk :brb:
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  #35  
Old 03-29-2012, 12:31 AM
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Default Re: SCOTAL Itch

I'm getting a real eye opener about some my friends and acquaintances from all this. People I never expected to be so callous & mean-spirited actually are.
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  #36  
Old 04-02-2012, 08:03 PM
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Default Re: SCOTAL Itch

Dude gets pulled over for a traffic infraction in 2005. Cop runs an on-the-spot computer check and finds a bench warrant issued in 2003 in connection with dude's failure to show up for a hearing to enforce a fine levied on a criminal charge some seven years earlier. Dude had paid the fine shortly after the bench warrant issued, but the warrant remained in the state's computer system.

Dude spends six days in the Burlington County (N.J.) jail, after which he's transferred to the Essex County jail. The day after the transfer, dude was released when the authorities finally got it together enough to figure out that the computer entry showing an outstanding warrant was wrong.

At the first jail dude was "check[ed] . . . for scars, marks, gang tattoos, and contraband as [he] disrobed" and "instructed to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals." At the second jail he was "instructed to remove [his] clothing while an officer looked for body markings, wounds, and contraband. Apparently without touching the detainees, an officer looked at [his] ears,nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings."

Dude filed a civil action against the government entities operating the jails per 42 U.S.C. § 1983, claiming that jail officials violated his Fourth Amendment rights by subjecting him to unreasonable searches. The trial judge sided with the plaintiff, ruling that the searches were unreasonable as a matter of law. The court of appeals reversed.

Today, SCOTUS's Fab Five (Roberts, Kennedy, Scalia, Thomas and Alito) sided with the government. Shorter Kennedy:
Well, you know, "strip search" is kind of a squishy term. I guess what happened to this guy might qualify, but hey, it's not like they shoved stuff up his ass or anything. Jeez.

And the ludicrously minor nature of the offense for which the plaintiff landed in jail just plain doesn't matter. Yeah, yeah, the Fourth Amendment is a big deal, and it's our job to say what the law is and all, but come on! Jail officials are the ones who know the security needs of their institution best, and those security interests are of paramount concern. If jail officials decide that intensive ... um ... visual inspection is needed to identify dangerous coloreds Messicans ganstas and druggies and thugs (oh my!), who are we to second-guess them?
Kennedy's majority opinion includes a brief section suggesting that the Court's announced rule might not apply in cases where a detainee in custody for a minor offense won't be wandering around in the general population or have significant contact with other detainees. In those instances, strip searches might indeed qualify as constitutionally unreasonable depending on the specific facts and circumstances. One of the justices in the majority wouldn't endorse even that trivial a limit on jailer discretion. Can you guess who?



Florence v. Chosen Freeholders of County of Burlington (pdf, 41 pages).
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  #37  
Old 04-02-2012, 08:22 PM
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Default Re: SCOTAL Itch


Look buddy, you went to jail. It doesn't matter how you got there,
we're still gonna need to look at your butthole.
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  #38  
Old 04-02-2012, 08:37 PM
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Default Re: SCOTAL Itch

Obama Warns 'unelected' Supreme Court Against Striking Down Health Law | Fox News
Quote:
The president spoke at length about the case at a joint press conference with the leaders of Mexico and Canada. The president, adopting what he described as the language of conservatives who fret about judicial activism, questioned how an "unelected group of people" could overturn a law approved by Congress.
That's their job, to review legislation that is challenged on Constitutional grounds, right?
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  #39  
Old 04-02-2012, 08:39 PM
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Default Re: SCOTAL Itch

I see Stevens, Souter, Rehnquist and O'Connor in that photo. None of 'em was perfect, of course, but you can't blame any of the current abominations on them!

Quote:
"I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," Obama said.
............
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  #40  
Old 04-03-2012, 05:09 AM
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Default Re: SCOTAL Itch

Good grief.
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  #41  
Old 04-03-2012, 07:51 AM
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Default Re: SCOTAL Itch

Who are we to questions the Supremes who in turn don't know who they are to question local police procedures!
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  #42  
Old 04-04-2012, 02:24 AM
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Default Re: SCOTAL Itch

Quote:
Originally Posted by LadyShea View Post
Obama Warns 'unelected' Supreme Court Against Striking Down Health Law | Fox News
Quote:
The president spoke at length about the case at a joint press conference with the leaders of Mexico and Canada. The president, adopting what he described as the language of conservatives who fret about judicial activism, questioned how an "unelected group of people" could overturn a law approved by Congress.
That's their job, to review legislation that is challenged on Constitutional grounds, right?
It's not directly SCOTUS-related, but goddamn. So much for never going full retard.
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  #43  
Old 04-04-2012, 02:30 AM
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Default Re: SCOTAL Itch

Someone should explain the concept of separation of powers.
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Old 04-04-2012, 02:36 AM
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Default Re: SCOTAL Itch

See, this is why I hate law and rules and stuff, I can't keep up here! First it was all those guys, no, you can't make 'em have insurance, and then Obama, oh but who got elected tough guy, and then some other dude is all, three pages single spaced sucker man! This is way too complicated for me, make it stop.
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  #45  
Old 04-04-2012, 02:47 AM
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Default Re: SCOTAL Itch

I take it as a sign that Judge Smith is righteously irritated with the President et al.

Good for him. Presidents often need a reminder that it isn't all about the President.
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  #46  
Old 04-04-2012, 05:17 PM
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Default Re: SCOTAL Itch

Quote:
Originally Posted by SR71 View Post
This is way too complicated for me
Not at all! Your post p. much sums up the entire shootin' match.

Quote:
Originally Posted by SR71 View Post
make it stop.
:nope:
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  #47  
Old 04-04-2012, 06:23 PM
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Default Re: SCOTAL Itch

Obama shoved his foot in his mouth hard and pissed off judges pretty much everywhere I am sure.

He needs to admit he fucked up, IMO, pure and simple. "I said stupid stuff, I am sorry I said stupid stuff, and of course I know it was stupid, but I am human and I am upset and I fucked up and I'm sorry. Please continue with the review your Honor with my apologies"
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  #48  
Old 04-04-2012, 06:39 PM
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Default Re: SCOTAL Itch

Men in Black.

Quote:
It is run by hacks dressed up in black robes.
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  #49  
Old 04-04-2012, 06:46 PM
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Default Re: SCOTAL Itch

Quote:
Originally Posted by LadyShea View Post
Obama shoved his foot in his mouth hard and pissed off judges pretty much everywhere I am sure.
:yup:

And followed up the very next day by hammering that foot deep into his gastrointestinal tract:
"A law like this has not been overturned at least since Lochner. Right?"
~ President Barack Obama, Harvard-educated lawyer and former senior lecturer in constitutional law at U. Chicago Law School

Wrong.

I was very much looking forward to the super-slick public relations campaign that would deftly turn an adverse ruling by the Supreme Court into a major victory for a genuinely progressive agenda. If the President's comments are the opening salvo in that campaign, well, lol. One-legged man, ass kicking contest, etc. Cries of judicial activism sound every bit as stupid coming from Obama as they did coming from G.W. Pencilcock.
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  #50  
Old 06-21-2012, 03:13 PM
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Default Re: SCOTAL Itch

I am watching the SCOTUSblog liveblog of today's opinions just in case. If it doesn't come down today, there are two opinion days next week, Monday and Thursday. They could add more. Thursday is the last day of the term.

At least four opinions this morning, which means there are 9 (I think?) opinions left to be issued this term.
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LadyShea (06-21-2012), Nullifidian (06-21-2012), The Man (06-26-2012)
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