The justices banned execution of mentally disabled people in 2002. Now they are poised to tell death penalty states that they really meant it.
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The cases challenging the Affordable Care Act’s contraceptive mandate challenge the conservative majority on the Court: Will they respect precedent if it pushes them toward upholding the mandate, or brush by it in their eagerness to carve out a religious exception?” Last week, I pointed out a Burger-era precedent, United States v. Lee, that should dispose of the case entirely. But to today’s conservatives, the Burger Court is so, well, 20th century. My own sense of this Court is that the majority may be willing to junk its jurisprudence in their eagerness to gut the Affordable Care Act.
But here’s a tougher question: Will the majority abide by its own precedent?
If so, Hobby Lobby and the other challengers don’t even get out of the starting gate. The Burger, Rehnquist, and Roberts Courts have all been clear: These plaintiffs have not suffered any injury worthy of redress under the Constitution.
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Supreme Court Justice Thurgood Marshall gave very, very few interviews in his lifetime.
Marshall, biographer Charles Zelden explains, “felt that it was a conflict of interest for a sitting judge to speak out publicly on the issue that might come before the Court.”
But in 1987, Marshall broke his silence in a candid, one-hour interview with journalist Carl Rowan of WHUT (Howard University Television) in Washington, D.C. It is perhaps one of only two televised interviews he gave while on the Court (the only other, to my knowledge, is a 1990 conversation with ABC’s Sam Donaldson, which does not seem to be available online).
The WHUT interview ran for an hour, and it has recently been digitized by the American Archive of Public Broadcasting. The digital files will be available on-site at WGBH in Boston and at the Library of Congress by the end of October of this year, and may someday be available online, if the legal rights can be cleared.
For now, the AAPB and WHUT have made a portion of it available to The Atlantic, a small hint of what must be a remarkable program in full.
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Edwin Lee was a Pennsylvania Amish farmer and carpenter. God smiled on his labors, and he hired fellow Amish to work on his farm and in his shop. Naturally he paid them—after all, Scripture tells us that the laborer is worthy of his hire. But beginning in 1970, Lee refused to pay the Social Security payroll tax on his workers’ wages the government said he owed. Amish do not believe in social insurance, based on language in Paul’s First Letter to Timothy: “If any provide not for his own, and specially for those of his own house, he hath denied the faith, and is worse than an infidel.”
The Internal Revenue Service took a different view, and in 1981 Lee’s case ended up in front of the United States Supreme Court.
If the current Court concerns itself with precedent (which I have come to doubt), United States v. Lee should play a large role in the deliberations over Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius—the cases, to be argued March 25, that will decide whether for-profit corporations can exempt themselves on religious grounds from the contraceptive-coverage requirements of the Affordable Care Act.
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How much money is morality worth? This is one of the questions looming in the recent slew of court cases concerning birth control and the Affordable Care Act. As judges at the district, federal, and Supreme Court level decide whether religious groups and businesses can be exempt from new rules about contraceptive coverage, organizations are having to make a choice: Are moral objections to birth control and pregnancy prevention worth millions of dollars?
Under the health care law, big companies that have made recent changes to their insurance plans are required to cover 20 FDA-approved forms of birth control—or face significant fines if they refuse. Only companies with more than 50 employees have to provide insurance coverage; small businesses are exempt. Large companies can also choose to opt out of providing plans, but at a significant cost: $26 million in fines every year, plus any intangible losses that might come from not being able to offer insurance as an employee benefit.
One of the most prominent cases, Sebelius v. Hobby Lobby, will be argued before the Supreme Court in late March. It concerns David and Barbara Green, the owners of the Hobby Lobby craft store chain. The couple have expressed moral objections to four of the 20 forms of contraception included in the mandate—specifically, types of birth control that keep a fertilized egg from implanting in the uterus.
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Lawyers should always listen to what judges say. Believing it, though, is often a mistake.
Take these words: “This order should not be construed as an expression of the Court’s views on the merits.” It’s the last sentence of the Court’s order, issued Friday, in Little Sisters of the Poor v. Sebelius, a religious order’s challenge to a portion of the Affordable Care Act dealing with contraception.
Formally, the words are true. The Court hasn’t voted on the issue, and technically may not ever end up hearing it. So thing for a lawyer to say is, “Thank you, Your Honor.”
The correct thing to think, however, echoes George Orwell: “There are … about eighty ways in the English and American languages of expressing incredulity—for example, garn, come off it, you bet, sez you, oh yeah, not half, I don’t think, less of it or and the pudding! But I think and then you wake up is the exactly suitable answer.”
As Cornell Professor Michael Dorf explains, the Court’s grant of a stay to Little Sisters “suggests that, at least at this stage of the litigation, the plaintiffs have made out a colorable claim.” The nature of that claim offers a glimpse of some toxic ideas floating around in American law.
Read more. [Image: James Lawler Duggan/Reuters]
On an ordinary day, Chief Justice John Roberts asks pointed questions of counsel and brief-slaps them if their answers don’t measure up. He also acts as kindergarten cop when his colleagues all speak at once. He is a formidable presence on the bench.
Except Wednesday during oral argument in McCullen v. Coakley, the Massachusetts case testing whether a state can establish a 35-foot “buffer zone” around clinics offering abortions so that patients can get inside without fighting their way through pro-life and pro-choice demonstrators.
There are two possible meanings to the chief’s silence. One is that he is genuinely undecided about a case that pits the rights of pregnant women against the rights of protest and advocacy on a public sidewalk.
That one’s not likely. Hamlet John Roberts is not. That’s particularly true in the First Amendment context, where he usually sides against government restrictions on speech.
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Those who celebrated the holiday at the cinema undoubtedly noticed the eerie resemblance between the United States Supreme Court on one hand and Smaug the Magnificent on the other. True, Benedict Cumberbatch (voice of the dragon in The Hobbit: The Desolation of Smaug) can’t match the vocal hauteur of Chief Justice John G. Roberts spouting flame at the solicitor general, but consider the other similarities. Both live in magnificent, inaccessible palaces. Both can seem somnolent, given only to faint sleepy rumblings and snorts, but can rise without warning to rain fire on the villages below.
The Court finished 2013 quiescent but grumbling: Consider that the most electrifying moment of the December sitting was Justice Clarence Thomas’s bench opinion in a unanimous decision about the Employee Retirement Income Security Act.
January, however, will have flames aplenty. This Court majority is increasingly scornful of precedent, even recent precedent, and seemingly impatient to push the law rightward. We may, in fact, see a first sign of this next month—some Court observers believe the time is ripe for the opinion in McCutcheon v. Federal Elections Commission, the attack on federal contribution limits.
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Many Americans reacted with outrage when they learned that the NSA stores details about phone calls made by virtually everyone in the United States. They felt a strong, if vague, notion that the practice must violate their constitutional rights. Couldn’t NSA analysis of telephone metadata reveal sensitive, private details about most anyone in the country, like their network of friends, the identity of their sexual partners, or their contact with medical or mental health professionals? Aren’t mass searches of innocents anathema to the Fourth Amendment?
The legal response from NSA defenders has leaned heavily on the precedent set in Smith v. Maryland, a Supreme Court case decided in 1979, before the era of big data.
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Just before the Supreme Court’s October sitting, Justice Antonin Scalia made national headlines by proclaiming that he believes in Satan.
But before the November sitting, Justice Stephen G. Breyer sparked widespread apathy when he revealed he has read Marcel Proust’s seven-volume masterwork, A la recherché du temps perdu.
Breyer made this startling revelation in an interview with La Revue des Deux Mondes of Paris, published in translation by The New York Review of Books.*
I suspect that many Americans, told of this accomplishment, would be baffled: Why read a book in French when there are good English translations available? Why bother with a work of thousands of pages and damned little action? (Before it was published, a reader for one French publisher rejected it, saying, “My dear friend, perhaps I am dense, but I just don’t understand why a man should take 30 pages to describe how he turns over in bed before he goes to sleep.”)
Read more. [Image: Ruben Sprich/Reuters]