Antonin Scalia

Loss of Scalia Spares Unions Another Damaging Blow


It is difficult to quantify the impact on the nation of the recent death of Supreme Court Justice Antonin Scalia. Adored by conservatives/originalists, and reviled by progressives and the “living Constitution” crowd, Scalia was not only arguably the greatest legal mind of his generation, but one of the most brilliant and articulate legal scholars in all of America history. Combining rapier wit with a towering intellect, he shaped the legal thinking of conservatives and liberals alike in the judiciary.

In recent years many of the most controversial rulings handed down by the Supreme Court have come in the form of 5-4 rulings, typically with Justice Anthony Kennedy being the swing vote. The loss of Scalia leaves the Court with eight justices, increasing the likelihood of 4-4 decisions that, rather than establish constitutional law precedent, leave issues unsettled and keep in place lower court rulings.

On Scalia Vacancy, GOP Should Follow Democrats’ Example

“The Constitution is not a living organism…It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.” ~ Supreme Court Justice Antonin Scalia

At about 8:45PM last Saturday night, I grabbed my favorite blanket and the remote and sat on the couch to watch the fireworks that were sure to be on display in the rancorous GOP presidential debate. I’d had a wonderful, news-free day out with my wife, and was not really in the mood to watch the debate, but I felt it was my obligation as a citizen, preparing to exercise my constitutional privilege to vote, to listen to each man make the case for their candidacy. I was gratified to watch as, unbidden, my 17, 15, 12, 11, and 6-year old children joined me.

Moments after the candidates had been introduced, the moderator asked his first question, and that was when I first learned of Scalia’s death. It was like a kick to the gut. My eyes opened wide in shock and I let out an audible gasp of dismay, and my eyes watered. Though Clarence Thomas edged out Justice Antonin Scalia as my favorite Supreme Court justice, it is inarguable that Scalia has been the anchor of the conservative wing of the court. His loss is devastating and cannot be overstated. His jurisprudential brilliance and his sharp wit were legendary, and even though he spent most of his career on the Court in the minority, he had more influence in the minority than his lesser colleagues had in the majority. Such was the high quality of his legal reasoning.

Supreme Court rejects Obama’s power grab: Justices unanimously invalidate NLRB recess appointments

The White House got a big reality check from the Supreme Court this morning. In a unanimous decision, the High Court invalidated recess appointments President Barack Obama made to the National Labor Relations Board in January 2012 because the Senate was technically in session.

The Constitution, in Article II, Section 2, allows a president to make appointments to fill vacancies when the Senate is not in session. These nominations are reviewed by the Senate when it reconvenes and must be approved by two-thirds of that chamber.

The issue at hand is that the Senate was in pro forma session — meaning that it had not formally adjourned — when President Obama made the appointments. The opinion in National Labor Relations Board v. Noel Canning, written by Justice Stephen Breyer, makes very clear that President Obama exceeded his constitutional authority by trying to sneak in bureaucrats who would rubber-stamp his and big labor’s agenda.

“In our view, however, the pro forma sessions count as sessions, not as periods of recess. We hold that, for pur­poses of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business,” Breyer wrote. “The Senate met that standard here.”

“The standard we apply,” he continued, “is consistent with the Constitu­tion’s broad delegation of authority to the Senate to determine how and when to conduct its business.”

Can ObamaCare Survive the Constitutional Challenge

Last week a severe blow was dealt to the long-term prospects of ObamaCare. U.S. District Court Judge Henry E. Hudson ruled that the Minimum Essential Coverage Provision (commonly referred to as the “individual mandate”) is unconstitutional. ObamaCare required weeks of arm-twisting and bribes, along with a labyrinthine process of obscure parliamentary procedures, to get the bill passed without a final vote. Even then it required Nancy Pelosi keeping her caucus in Washington (and away from the growing number of voters back home vehemently and vocally opposed to the bill) until nearly midnight on Christmas Eve in order to get the bill to pass by a hair.

There are a number of constitutional issues with the health care “reform” legislation, but none may be more important to implementing it than maintaining the individual mandate. There is no doubt that this is not the end of the issue. The Obama administration will appeal the ruling and eventually it will end up in the Supreme Court. However, that may not be a hospitable venue for the arguments that Obama will make before the court to protect this provision.

Today in Liberty: IRS tracking license plates, Amash outraises primary opponent

“People acting in their own self-interest is the fuel for all the discovery, innovation, and prosperity that powers the world.” — John Stossel

— IRS among agencies using license plate-tracking: Several federal agencies, including the IRS, have contracted with vendors to use license plate-tracking technology. “Bloomberg News reported that the IRS and other government agencies awarded about $415,000 in contracts to Livermore, Calif.-based Vigilant Solutions before the Department of Homeland Security dropped a plan for similar work after privacy concerns were raised,” Fox News reports. “The Justice Department’s Drug Enforcement Administration, FBI, DHS and U.S. Marshals Service have also awarded contracts to Vigilant for access to its records or tracking tools, according to the report.” There are obviously some big issues with this. “These systems treat every single person in an area as if they’re under investigation for a crime,” said Jennifer Lynch, a staff attorney with EFF, “that is not the way our criminal justice system was set up or the way things work in a democratic society.”

Uh oh: Scalia hints he’d back NSA domestic surveillance

Antonin Scalia

Though cases dealing with the National Security Agency’s domestic surveillance programs are still a long way from going to the Supreme Court, Justice Antonin Scalia may have already tipped his hand on how he may vote, and it’s not good news for privacy advocates:

While suggesting that the high court will take up NSA surveillance, Scalia expressed his opinion that judges should not be deciding matters of national security.

“The Supreme Court doesn’t know diddly about the nature and extent of the threat,” Scalia said. Later on, he added, “It’s truly stupid that my court is going to be the last word on it.”

Still, he hinted he would rule that NSA surveillance does not violate the Constitution if and when the issue comes before the Supreme Court. Although one judge has ruled the spying violates the Fourth Amendment, Scalia may disagree based on his strict interpretation of the Constitution.

The comments came on Friday at an event sponsored by the Brooklyn School of Law. The discussion was led by Judge Andrew Napolitano, a legal commentator for Fox News and vocal opponent of the NSA’s domestic surveillance programs. Scalia made similar comments in September.

Ruth Bader Ginsburg isn’t stepping down from the Supreme Court before 2016

Ruth Bader Ginsburg

Justice Ruth Bader Ginsburg, one of the most reliable Leftist votes on the Supreme Court, made it clear this past week that she has no intention of retiring so that President Barack Obama can pick her successor:

At age 80, Justice Ruth Bader Ginsburg, leader of the Supreme Court’s liberal wing, says she is in excellent health, even lifting weights despite having cracked a pair of ribs again, and plans to stay several more years on the bench.

In a Reuters interview late on Tuesday, she vowed to resist any pressure to retire that might come from liberals who want to ensure that Democratic President Barack Obama can pick her successor before the November 2016 presidential election.

Ginsburg said she had fallen in the bathroom of her home in early May, sustaining the same injury she suffered last year near term’s end.
The justice, who survived two serious bouts with cancer, in 1999 and 2009, is keeping up a typically busy summer of travel, at home and abroad, beginning next week with a trip to Paris. Ginsburg said she was back to her usual weight-lifting routine and recently had good results from a bone density scan.

These comments are similar to hints dropped by Ginsburg back in 2011, when she joked that she had “a way to go” to catch up with Justice Louis Brandeis, who retired when he was 83. That indicated that she would stay on the Court until at least 2016.

Supreme Court strikes down federal provisions of DOMA

In the first of two cases dealing with the issue of gay marriage, the Supreme Court ruled this morning struck down the federal provisions of the Defense of Marriage Act (DOMA) while maintaining the prerogative of states to define marriage on their own terms.

The Court’s opinion in the case, United States v. Windsor, authored by Justice Anthony Kennedy, ruled that Section 3 of DOMA, which codified the definition of marriage as one man and one woman into federal law in 1996, violates the Equal Protection Clause of Fourteenth Amendment and the Due Process Clause of the Fifth Amendment.

“Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound,” wrote Kennedy for the majority. “It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive. It deprives them of the Bankruptcy Code.”

“The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment,” added Kennedy. “What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.”

No, states aren’t going to secede

General Cartman LeeShortly after the election ended, some very angry people have created petitions at the White House to garner support for their states to secede from the United States. At first, I wasn’t even going to write anything on this because the idea is just so absurd and crazy, but some of these petitions, which have gained some media coverage, have gotten enough signatures to illicit a response from the White House.

I can’t believe I’m actually writing this post. Look, I can understand that people are upset that President Barack Obama was re-elected. They don’t see how it could have happened and they’re looking for ways to fight back; but this is exactly the wrong way to do it. Let’s take away the fact that this idea is just dumb for a few moments, and dive into the various reasons why it’s just not practical.

I realize that some of the Founding Fathers took a different view of this topic. After Thomas Jefferson won the presidential election in 1800, some northern states threatened to secede. Jefferson was indifferent. In an 1803 letter to John Breckenridge, Jefferson asked, “[I]f it should become the great interest of those nations to separate from this, if their happiness should depend on it so strongly as to induce them to go through that convulsion, why should the Atlantic States dread it?” The language here is important because our Founding Fathers looked at the states as “nations,” independent countries that joined together to form the United States.

Did justices drop hints about ObamaCare fate?

Though no one thought a ruling on ObamaCare would come yesterday, there was quite a turnout of reporters at the Supreme Court as decision were announced in several pending cases. We don’t yet know how the nation’s High Court will go in this specific case, but some hints may have been recently dropped by two justices, as Avik Roy explains:

On Friday, Associate Justice Ruth Bader Ginsburg spoke at the annual Court review of the American Constitution Society, a group “dedicated to…countering the activist conservative legal movement.” Ginsburg said that she was quite aware of the controversy surrounding the Obamacare case. “Some have described the controversy as unprecedented and they may be right if they mean the number of press conferences, prayer circles, protests, counter protests, going on outside the court while oral argument was under way inside.”

In her ACS remarks, Ginsburg suggested that she might be on the dissenting side of the case. “I have spoken on more than one occasion about the utility of dissenting opinions, noting in particular that they can reach audiences outside the court and can propel legislative or executive change,” said Ginsburg, in the context of a 2007 pay discrimination case.

Most tellingly, she touched upon the key question that I believe the Court is still working through: what to do with the law if the individual mandate is indeed found to be unconstitutional.

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