Republicans Should Check and Balance Obama’s SCOTUS Nominee

Against all wisdom and common sense, I engaged in a debate online about Senate Republicans potentially filibustering or blocking President Obama’s SCOTUS nominee-to-be to replace Justice Antonin Scalia following the justice’s untimely passing this weekend. Truly, I don’t recommend it. It was not only as futile as all online arguments are (no one is ever convinced of any opinion except the one they went in with. It’s almost exclusively a forum to rant), but it was disturbing in a way that proved beyond a shadow of a doubt the blatant, admitted, and poisonous hypocrisy some on the left have in matters of politics.

The vacancy left by the great Scalia (who, as an aside, my opponent in the online “debate” was convinced was a biased right-winger and was petulantly annoyed when I shared this article and told him to educate himself) will be hard to fill simply because the man who created it with his death was so great. That is nearly universally accepted.

But what Democrats seem to want to do is forget the concept of advice and consent (the constitutional provision that gives the Senate the authority to accept or disdain a presidential appointment), even as their own recent history shows their willingness to use it with careless abandon.

In Other, Other SCOTUS News: ‘Puter Pontificates - Texas Housing v. Inclusive Communities Edition

Ruth Bader Ginsburg responds to ‘Puter’s assertion that Supreme Court liberals rewrite Congress’ enactments to suit their preferred policy goals, saying “I’ve got a lifetime appointment, bitch! Ain’t nothin’ you can do to stop me!”

Editor’s Note: This was originally published on June 26, 2015 at The Ancient & Noble Order of The Gormogons.


Difficult to believe based on yesterday’s news coverage, but the Supreme Court issued another important decision yesterday as well. Justice Kennedy, writing for the majority*, held disparate impact claims are cognizable under the Fair Housing Act (“FHA”). You can (and should) read Justice Kennedy’s opinion and the two dissents here, in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.

Here are your takeaways:

CBO Report on Repealing Obamacare and Voxsplaining Muddy Interpretations


The Supreme Court decision on ACA — The Affordable Care Act or the always evocative Obamacare — could be handed down this morning and, because no one seems to have a really good read on which way The Court will go  (Chief Justice Roberts shocked many a conservative the last time he took a long, hard look at this legislation, remember?), there have been some rather interesting stories coming out in preparation for whatever the decision may be.

The Huffington Post, for example, calls the divide over the public’s taste for the law “ambivalence”, and suggests it really comes down to partisanship. Of course, saying that someone likes or dislikes Obamacare BECAUSE they’re one party or the other is silly. It’s probably more true to say someone identifies with one party over another BECAUSE of policies like Obamacare:

The Supreme Court could issue a ruling in King v. Burwell, the lawsuit threatening to undermine a key part of the Affordable Care Act, as early as Monday. But the debate over President Barack Obama’s controversial health care law is likely to continue no matter how the justices rule. And one reason is that Americans, on the whole, remain deeply ambivalent about it…

The first and more obvious factor is partisanship. No single characteristic better predicts how a person feels about the health care law than his or her partisan affiliation. Republicans tend to think the law is a failure, while Democrats tend to think it’s a success — most likely because they are reacting to the party leaders and news sources they trust and distrust and because they have genuine philosophical differences about the law’s virtues.

One Take: The Supreme Court Will Not Redefine Marriage


Any day now, the United States Supreme Court will issue its ruling on one of the most controversial issues in recent memory - the legal definition of “marriage”. If asked, most Americans would probably say the issue was decided a few years ago when the Supreme Court ruled in Windsor v. United States that Section 3 of the Defense of Marriage Act was unconstitutional. However, that case did not decide the legal definition of marriage; it ruled on whether the federal government could deny spousal benefits to spouses of same-sex federal employees in states where homosexual “marriage” was legal. Since then, one federal court after another struck down the marriage laws in dozens of states, the judges substituting their philosophical preferences the clear text of the Constitution. Those dominoes stopped falling with a ruling by a three-judge panel of the 6th Circuit Court of Appeals last November.

Writing for the majority, Judge Jeffrey Sutton stated

SCOTUS weighs the limits of the First Amendment

The Supreme Court heard the case of Hobby Lobby, on the HHS mandate that requires most businesses that employ over 50 individuals to provide coverage for 21 forms of birth control. The businesses that are parties to the suit, while they are private for-profit companies, have incorporated or otherwise stated in their mission statements, that their businesses are owned and operated by individuals that include their religious practices in their work.

Due to their religious beliefs, that are freely stated to potential employees before they consent to work for these companies, they object to providing some or all of the contraceptives in the HHS mandate on moral grounds. The government presented the case that since they are not religious organizations per se, they do not have the freedom to run their businesses with religious overtones, at least not when it interferes with governmental mandates.

That is a thumbnail sketch of the case, and in spite of the fact that SCOTUS will not hand down a ruling until June, there are plenty of pundits offering opinions on exactly how that will end up. It’s interesting to attempt to guess what a given Justice will say on this issue, based on the questions presented during the case yesterday, however, it probably isn’t going to serve anyone to do that. Let’s not forget the ruling that the ObamaCare penalties were actually taxes by Chief Justice John Roberts, that got us to this point in the first place.

While it seems that quite a few of the commentators out there seem to think that this will fall in favor of Hobby Lobby, and the other corporations involved, perhaps at this point it would be better to think about “what comes next?” if that isn’t the case.

Lasting Effects of the Supreme Court’s Prop 8 Decision

Stephanie Rugolo is the editor of The Rugolo Report and holds an M.A. from the Maxwell School of Syracuse University.

A strange thing happened in the Supreme Court’s recentHollingsworth v. Perry decision. Even though this case focused on California’s Proposition 8 that banned gay marriage, the court was split, with both liberals and conservatives comprising the majority and dissenting parties. It turns out that the rationale by which the Court’s majority decided the Hollingsworth case led to the justices’ scrambled ideological divisions. The Court’s reason for striking down Prop 8 limits civilians’ ability to legally defend initiatives, a disturbing limit to democratic liberties.

Proposition 8 was a citizens’ initiative passed in 2008 elections. A citizens’ initiative is unlike most laws passed by elected legislatures. Instead, these laws are initiatives of the citizens—that is, they are the result of independent citizens gaining enough signatures to get a proposed law on the ballot.

When gay couples brought a suit against Prop 8 that found the law unconstitutional, the State of California had no intention of appealing the decision. After all, neither the former nor current Californian administrations passed it in the first place, as it was a citizens’ initiative. Consequently, individual proponents of Prop 8 volunteered to appeal the decision in court. That raised questions of standing—whether Prop 8 supporters had a tangible stake in the case and thus a right to appeal. The Ninth Court found they did have standing before finding Prop 8 unconstitutional.

Justice Anthony Kennedy is not a libertarian

Anthony Kennedy

Over the last few years, there has been much discussion about the philosophical leanings of Supreme Court Justice Anthony Kennedy. Long considered a moderate on the High Court, Kennedy has been the deciding vote in many 5 to 4 decisions, leading John Tabin of The American Spectator to note that “[i]t’s Anthony Kennedy’s world; we’re just living in it.”

Some legal scholars have surmised that the Supreme Court may be in some sort of “libertarian moment,” thanks in part to Kennedy. This is not necessarily a new theory. Shortly after the Court issued its decision in Lawrence v. Texas (2003), a ruling that struck down sodomy laws in 13 states based concerns over privacy, Randy Barnett praised Kennedy’s “presumption of liberty” approach.

Kennedy’s ideology was again the topic of discussion in 2012 after he sided with the minorty in National Federation of Independent Business v. Sebelius, in which the majority upheld the individual mandate in ObamaCare.

After the Court’s decision last month in United States v. Windsor, which struck down the federal provisions in the Defense of Marriage Act, Kennedy’s ideological views are, once again, being discussed by legal scholars.

NLRB Illegally Wades into Labor Dispute; Private Sector Fights Back

Just a couple of short years after using litigation to intimidate Boeing into either allowing new South Carolina employees to organize, or to move those new jobs to a state with stronger labor protections, two regional directors of Obama’s National Labor Relations Board asserted themselves in a labor dispute in New York earlier this year between Cablevision and the Communications Workers of America union. The NLRB, however, doesn’t have the authority to wade into the dispute because a D.C. Circuit Court ruled in January that Obama’s recess appointments to the NLRB were illegal.

Cablevision, according to the Wall Street Journal, sought emergency injunctive relief from that same D.C. Circuit Court earlier this year to stop the NLRB from trying to adjudicate the dispute in the agency’s administrative court:

Cablevision is petitioning the D.C. Circuit to issue a writ of mandamus—a direct court order—prohibiting the NLRB from proceeding with unfair-labor-practice complaints against it and its parent company, CSC Holdings. Cablevision’s rationale is straightforward: The same D.C. Circuit ruled in January that President Obama’s non-recess recess appointments to the NLRB were illegal. Thus, the board has been operating without a quorum since January 2012….

Mitt Romney: Can’t Be Trusted on Judicial Nominations

The Romney campaign has been bragging to every outlet they can about the amazing $4.6 million haul they took in yesterday in the wake of the Supreme Court’s decision upholding the individual mandate.

The fact that Romney was able to so immediately and succesfully capitalize on the Supreme Court’s decision is a stark reminder that a sucker is born every minute.

The swing vote in the landmark Obamacare decision was that of Chief Justice John Roberts.  Roberts wrote the opinion that grants the federal government almost limitless power via the taxation clause.  Even worse, and most frightening, this decision provides a roadmap for future Congresses and future Presidents to end run any lip-service limitations the Court provided to the limits of the commerce clause power or any other supposedly “limited” power of the federal government.  And don’t even get me started on the 9th or 10th amendment, because apparently neither of those amendments exist any longer.

According to Mitt Romney, Chief Justice Roberts, now enemy number one to many conservatives and constitutionalists, is EXACTLY the kind of justice he would nominate if elected President.

Romney’s own website continues to say that he will appoint justices like Chief Justice Roberts (you would think his crack team of consultants would have scrubbed this by now).

Indeed, not only is Romney promising to nominate justices like Roberts, he has been effusive in his praise for Bush nominess like Roberts:

I think the justices that President Bush has appointed are exactly spot-on. I think Justice Roberts and Justice Alito are exactly the kind of justices America needs.

Supreme Court to rule Thursday on ObamaCare

As you know, the Supreme Court did not rule yesterday on the Patient Protection and Affordable Care Act. Many observers speculated that they would not rule on the Arizona immigration case and ObamaCare on the same day. Everyone is now looking to Thursday, which is the last day the Supreme Court will deliver opinions for the current term.

The thinking right now is that Chief Justice John Roberts will write the majority opinion, which leads opponents of ObamaCare to believe that, at the very least, the individual mandate will be struck down. Sen. Mike Lee (R-UT), who clerked for Justice Samuel Alito, is among those that express this thinking, as noted by Philip Klein:

Sen. Mike Lee, R-Utah, a former clerk to Justice Sam Alito, said that if Chief John Roberts writes the majority opinion in the health care case, as some have speculated, it would make it “substantially more likely” that the Supreme Court would strike down the individual mandate.

Following the release of today’s decisions, SCOTUSblog’s Tom Goldstein suggested that the decision on the constitutionality of President Obama’s health care law would “almost certainly” be written by Roberts, based on the authorship of recent opinions.

“It certainly would not surprise me,” Lee told the Washington Examiner, standing outside the Court after this morning’s opinions where handed down. “It would not be unusual for a Chief Justice to assign to himself a decision of monumental importance. This certainly fits into that category.”

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