Tag: Supreme Court

Public vs Private Companies

Post author By David
Post date March 26, 2014
No Comments on Public vs Private Companies

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Photo by Paul Riismandel

Coverage of the Hobby Lobby case seems to be consistent in saying that the U.S. Supreme Court is essentially deciding the question of whether not-specifically-religious corporations can exercise religious rights. The issue in this case is requiring insurance coverage for federally determined forms of contraception but if the decision is based on the ability of companies to exercise religious rights then it could also extend to whether companies can choose under what circumstances they will offer their services.

It struck me this morning that the question isn’t really whether corporations can exercise religious rights. The real question is: at what point in the pursuit of profit do individuals diminish or forego their right to religious expression? Those siding with the government in this case are afraid that companies will be able to use the guise of religious belief to get around the expense of some legal mandates. After all, if the Green family (Hobby Lobby) can claim religious belief avoid paying for some expensive forms of birth control for their employees why can’t the Walton family (Walmart) do the same?

Tags Deseret News, religion, Supreme Court

National

U.S. and CA Supreme Court News

Post author By David
Post date May 26, 2009
No Comments on U.S. and CA Supreme Court News

The news came last week that the California Supreme Court would issue their ruling related to Proposition 8 so I expected to have a reaction to that news today. I saw news this morning that President Obama would make his nomination for a new judge to replace Justice Souter – that news surprised me. Obama nominated Sonia Sotomayor. So far all I really know about her is that she is a Catholic, Hispanic female. I am not at all confident that we will ever have hearings in the Senate about a supreme court nominee that are more about qualifications than about politics, but if that day ever comes I am convinced that the founders were right to assign the task of confirmation to the Senate rather than the House or the people.

In California, the Supreme Court upheld Prop. 8. From what I had heard this ruling was not a foregone conclusion nor was it unexpected. The ruling provided answers to two related questions. One question was whether Proposition 8, which passed with 52% of the vote to define marriage in California as being between a man and a woman, was too far reaching to be added to the Constitution without the participation of the state legislature. As previously stated, the court denied that claim. The second question was whether the same-sex marriages performed before the passage of Prop. 8 would retain their legal recognition. On this the court unanimously agreed that they would still be recognized.

Regardless of my personal opinion on the legitimacy of same-sex marriage (just like the justices are supposed to make their rulings based on the law rather than their own personal feelings) I believe that the court ruled correctly on both questions. I believe that the question embodies in Prop. 8 is perfectly within the right and ability of the people to decide. I also believe that because the same-sex marriages performed before the passage of Prop. 8 were legal based on a previous ruling at the time they were performed the state must feel obligated to recognize those existing marriages (its the principles of ex post facto laws). The only way they could have annulled those existing marriages were if they were to rule that their ruling from last year was in error – which I expect they never will.

Tags California, gay marriage, New York Times, Obama, Prop 8, Supreme Court

General

Federalist Nos. 80 – 83

Some of the items of discussion in the federalist papers are so obvious that I must conclude that the purpose of these papers was not onyl to answer critics of the proposed constitution, but also to endeavor to generally educate those who had not considered the necessities of government in order that they might make an informed choice on the issue of ratification. In my opinion, this effort to disseminate information is one of the hallmarks that separates a statesman from a politician. Politicians seem to love pontificating and posturing, but do not seem to care much whether they actually inform or enlighten.

Federalist No. 80 lays out the types of cases and situations that would properly fall under federal jurisdiction and argues that only those cases have been covered in the powers granted to the federal courts. Federalist No. 81 explains the purpose of allowing for lesser federal courts to be instituted rather than relying on a single supreme court, or dependence on state courts in any case of federal jurisdiction. Federalist No. 82 contends that the judicial systems of the states are not adversly affected in any material way by the federal judicial system as proposed. Federalist No. 83 discusses the value and limitations of trial by jury and contradicts the assertion that trial by jury might be prohibited in civil cases on the grounds that it is mandated in criminal cases. I found it interesting to note some similarities in the reasons to recommend a trial by jury when compared to the reasons that recommend the use of an electoral college. It was also interesting to read how different the judicial systems of the various states were from each other.

Tags courts, documents, federalist, history, Supreme Court

National

Judicial Appointment

Yesterday I wrote about the president’s power to nominate people for important positions in government. Today we get the news that Justice David Souter will be retiring. (This is doubly convenient as the remaining federalist papers deal with the judicial branch of our government.) I don’t intend to speculate on who the president will nominate but there are a few things we can learn from this confirmation hearing.

During the 2004 election cycle there were a number of conservatives talking up the importance of re-electing Bush because of the probability that at least one justice would be nominated in the next four years. Obama himself said last fall that the selection of a new justice would be “one of the most consequential decisions of the next president.” One difference between Obama and Bush in relation to the opportunity to make a supreme court nomination is that Obama will have a Senate majority large enough to prevent a filibuster (assuming that Al Franken is seated from Minnesota). This means that Obama may not feel any need to moderate his choice as Bush knew that he must. Bush knew that he could not nominate anyone who was too conservative for the Senate. Obama will know that there is virtually nobody with any qualification who is too liberal for this Senate.

Assuming that this confirmation goes smoothly and that the selection proves to be reliably liberal (the new justice can always surprise people on that score), I think we might know what to expect in the next few years in the Supreme Court. The most senior justice, Justice John Paul Stevens, is on the liberal side of the court and is 89 years old. If there is a fresh liberal justice from our new president and a solidly Democratic senate in place I would be very surprised if he did not choose to retire before 2012 (or even before the 2010 elections). I would also not be surprised to see Justice Ruth Bader Ginsburg choose to retire. Like Justice Stevens she is on the liberal side of the court and while she is not the next most senior justice she is the second oldest at 76 and might want to ensure that her replacement is also liberal (especially if at least one other justice is a woman by then) before there is a chance of electing a Republican president or having Democrats lose any seats in the Senate.

Tags 2010, 2012, New York Times, Obama, Supreme Court

National

FOCA

Post author By David
Post date January 16, 2009
No Comments on FOCA

My sister-in-law suggested that her generally apolitical blog was not the place to engage in a debate on abortion. She’s probably right, but such a debate fits just fine here. In many ways the debate on abortion is settled. An absolute ban on abortion is not likely to ever be a reality in this nation and truly unrestricted access to abortion is also a very low probability. Despite heated rhetoric, the fact is that both sides are entrenched and committed to making incremental gains related tot his ever simmering topic. Camille’s post was specifically about fighting the Freedom of Choice Act (FOCA) which Obama told Planned Parenthood he would sign as his first act as President. I think we can be very confident that it will not be his first act (because the economy is his first priority now) but that is no consolation to those who oppose this bill.

As always, I like to start with the actual legislation in question whenever possible. The claim by opponents is that this would eliminate all state and local statutes against any abortion. The text of the bill states:

Congress finds the following:

. . .

(4) The Roe v. Wade decision carefully balanced the rights of women to make important reproductive decisions with the state’s interest in potential life. Under Roe v. Wade and Doe v. Bolton, a woman’s right to choose to terminate her pregnancy is absolute only prior to fetal viability, with the state permitted to ban abortion after fetal viability except when necessary to protect the life or health of a woman.

. . .

SEC. 4. INTERFERENCE WITH REPRODUCTIVE HEALTH PROHIBITED.

(a) STATEMENT OF POLICY- It is the policy of the United States that every woman has the fundamental right to choose to bear a child, to terminate a pregnancy prior to fetal viability, or to terminate a pregnancy after fetal viability when necessary to protect the life or health of the woman.

(b) PROHIBITION OF INTERFERENCE- A government may not–

(1) deny or interfere with a woman’s right to choose–

(A) to bear a child;
(B) to terminate a pregnancy prior to viability; or
(C) to terminate a pregnancy after viability where termination is necessary to protect the life or health of the woman;

(emphasis added)

Sounds like the claim by the bills opponents is a bit overstated.

Those who support the bill obviously believe that this would remove some state and local restrictions on abortion that are unconstitutional. The problem here is that the Constitution has no position on the issue of abortion. The only restrictions on abortion related legislation are rooted in supreme court opinions. All those state and local regulations that push the boundaries are challenged in court. The language of this bill is so vague that it only reinforces the message that is supposedly set by existing rulings. In other words, all the laws that they expect to remove can already be challenged, and any that would be upheld still could be upheld when challenged.

What this bill really accomplishes is to place in a statute what has already been placed in precedent. Perhaps this is an admission by abortion proponents that the ruling in Roe v Wade is a lousy ruling that amounts to an opinion not grounded in law. Anyone who has actually read Roe can see that it’s a huge logical leap from any law then existing.

My position is that FOCA is meaningless at best and reinforces the most illegal Supreme Court ruling I have ever read at worst. After having actually read the text of FOCA (it’s not very long) if you still want to sign the petition that Camille linked to, please do. I did.

Tags connections, issues, laws, Obama, Supreme Court, unconstitutional

National

The Irony of Supressing Votes

Post author By David
Post date January 11, 2008
No Comments on The Irony of Supressing Votes

I find it rather funny that we have such a fuss being raised about laws requiring voters to show ID at the polls that a case has to be heard by the Supreme Court on the issue. What strikes me is that:

if we had more voters voting, whatever fraud the voter ID laws are meant to combat would have less effect in a larger pool of ballots
the plantiffs have not demonstrated that this law has prevented anyone from voting
voting fraud is more rare at the polling place than it is in absentee voting where no ID is required

This seems like another case of the law being used to address minutia

Tags media, NPR, Supreme Court, voting

National

Nomination and Confirmation

Post author By David
Post date July 21, 2005
No Comments on Nomination and Confirmation

Well, we’ve had the name of John Roberts as the niminee for the opening on the Supreme Court bench for a couple of days now. I have tried to give myself some time to gather some information and draw some conclusions before I posted my thoughts in this nomination. The main questions were: (1)should John Roberts be confirmed? and (2)will John Roberts be confirmed?My personal answers at this time are: (1)I still don’t have enough information to say for sure and (2)probably.

John Roberts has the objective credentials to be a supreme court justice. There are those who might complain about a lack of experience, but really we could do much worse on experience. So far the democratic senators who have spoken up seem to indicate that they will not make this a nasty confirmation. They have both the right and the responsibility to question Judge Roberts thoroughly during the confirmation hearings but it appears that they will not resort to a filibuster which means that he will probably be confirmed.

Now, because of how little I have been able to learn about this man with the thin judicial resume, the question has been raised in my head: is the way to get people appointed to the supreme court in these days of divisive politics to find someone who has a scant record who you hope will do what you want (based on your own ideological leaning) but who has very little for the opposition to oppose? That seems to be the formula here. I do not mean to imply that Judge Roberts is unqualified or even that the president might think him unqualified but dependable. I am saying that one of the reasons that I believe this nomination will succeed, and possibly one of the reasons that it was made, is because the liberals may have their objections and suspicions but they have very little ammunition from Roberts’ short tenure as a federal judge.

Hopefully I have made it clear what I am referring to when I ask: does our political situation dictate that this is how to make things happen? And if so: is it a safe situation to require that a judge have a short track record if he is to survive the confirmation process?

Tags nominations, questions, reactions, Supreme Court