Gavel Grab

Archive for June, 2012

Roberts in Spotlight; His Health Care Act Role Examined

Some analysts have rushed to commend Chief Justice John Roberts Jr., who stunned most observers by casting the deciding vote to uphold the core provision of the Affordable Care Act. Other analysts cautioned against premature adulation.

“Roberts Shows Deft Hand as Swing Vote on Health Care,” declared the headline for a New York Times analysis by Adam Liptak, who said the chief justice’s “defining and delicate role in upholding the health care law will always be associated with his tenure.”

Jeffrey Rosen, a George Washington University law professor, described “a dramatic vindication of the vision of bipartisanship that Chief Justice Roberts articulated at the start of his term,” according to a McClatchy newspapers article.

“With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court,” UCLA Law Professor Adam Winkler wrote in Huffington Post. “Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn’t want to go there.”

But historian Jeff Shesol, author of a book about the Supreme Court and President Franklin Delano Roosevelt, suggested putting the brakes on crediting Chief Justice Roberts for statesmanship and judicial modesty. His essay in Slate was entitled, “Why our crush on the chief justice is silly—and undeserved.”

“[Thursday’s] outcome, to be sure, is worth celebrating. But the lionization of John Roberts does not withstand a reading of his opinion,” Shesol wrote. He took strong issue with the Read more

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Friday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • The Miami Herald reported that a new group, Defend Justice from Politics, has formed to defend three Florida justices up for retention election. A group leader said that a campaign to unseat the judges is being pushed by special interests and politicians angry over rulings that protected public rights.
  • State Supreme Court candidate Allen Loughry says that West Virginia Secretary of State Natalie Tennant is inhibiting his campaign from obtaining more publicly financed funds, by not applying a section of the law, according to The West Virginia Record.
  • Lawyers have filed a complaint seeking Republican candidate Linda Coats’ disqualification from an election for a Madison County district court judgeship, The Huntsville Times reported.
  • An opinion piece in The Baton Rouge Advocate advocates the elimination of politics from judicial nominations. It tells the story of U.S. Senator David Vitter (R-LA) who, according to the piece, has blockedjudicial nominees based on party status.

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Limited Anti-Court Blowback on Health Care Ruling

Dissenters sounded off with displeasure and anger over the Supreme Court’s  ruling that upheld the provision at the heart of the controversial Affordable Care Act. At least in the initial rounds, however, any anti-court backlash was  limited.

“While I’m disappointed in their decision, they came to a decision. I respect it,” said House Speaker John Boehner (photo), a Republican, according to a report in The Hill.

Republican Senate Leader Mitch McConnell focused on what comes next. “The court’s ruling doesn’t mark the end of the debate. It marks a fresh start on the road to repeal,” he vowed, according to an Associated Press article.

Ben Shapiro, a columnist, likened the ruling to the Dred Scott decision.”This is the greatest destruction of individual liberty since Dred Scott. This is the end of America as we know it. No exaggeration,” he tweeted, the International Business Times said.

There were only limited calls for action directed at the court.

“I think it’s important to look at Justice [Elena] Kagan for potential impeachment,” said Rep. Louie Gohmert, R-Texas, a Slate article reported.  He questioned whether President Obama’s former Solicitor General had  ”lied in order to get on the court,” the Fort Worth Star-Telegram said.

In Michigan, the Toronto Star reported, former Republican Party spokesman Matthew Davis sent out a news release with the headline, “Is Armed Rebellion Now Justified?” Davis said he wasn’t actually calling for violence, according to


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Editorial: On Health Care Act, Court Legitimacy Preserved

A deluge of diverse editorials and punditry followed the Supreme Court’s ruling on the Affordable Care Act. One theme focused on the court’s avoidance of a ruling split totally along partisan lines, which could have undermined the court’s legitimacy.

When the court divided 5-4 in upholding the central provision of the Affordable Care Act, conservative Chief Justice John Roberts Jr., an appointee of a Republican president, and four liberals who were appointed by Democrats joined sides on Thursday to determine the outcome.

A Washington Post editorial said, “In an editorial Thursday, we said that many Americans would be watching the court to see whether, at a time of extreme partisanship, it could craft a decision that impressed as an act of law, not politics. In our view, the court passed that test of legitimacy.”

At the New York Times Opinionator blog, Linda Greenhouse discussed Chief Justice Roberts’s decision upholding the so-called individual mandate as a permissible tax, after he found it impermissible under the Constitution’s Commerce Clause:

“His decision to call the mandate a tax and to provide a clearly reluctant fifth vote for upholding it as within the Congressional taxing power was a deeply pragmatic call that saved the Affordable Care Act. Certainly by no coincidence, it also saved the Supreme Court from the stench of extreme partisanship that has hung over the health care litigation from the moment more than two years ago that Republican state officials raced one another to the federal courts to try to erase what they had been unable to block.”

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ABA President Warns Against Politicizing Tennessee’s Courts

A Washington-style judicial appointment system proposed for Tennessee would politicize the state’s impartial courts, American Bar Association President Wm. T. “Bill” Robinson III warns in a (Nashville) Tennessean commentary.

Robinson delivers a vigorous defense of the existing “Tennessee Plan” for merit selection of the state’s top judges, saying it provides for their appointment “through an open process that is as free from political influence as possible.”

“It is critical for courts to be insulated from undue political influence,” Robinson writes. “The American Bar Association believes that merit-based selection is the best way to choose judges. Politics should not play a role in the courtroom, and judicial appointments should also be political. The qualities of a good judge are the same across the political spectrum.”

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Thursday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • Democratic Ohio Supreme Court Justice Yvette McGee Brown defended her Republican colleagues against attacks from a Republican judicial candidate. Brown said, “This court does not rewrite or legislate from the bench,” according to the Youngstown Vindicator.
  • On Thursday, a three-member commission was expected to confirm Miguel Marquez as the first Latino justice on the San Jose-based 6th District Court of Appeal, San Jose Mercury News reported.
  • Wisconsin Supreme Court Justice Patrick Crooks refused to recuse himself from a judicial ethics case involving Justice David Prosser, who is accused of grabbing the neck of another justice during an argument, The Associated Press reported.
  • The Salt Lake Tribune reported Senator Mike Lee (R-UT) will agree to start voting for those of President Obama’s judicial nominees whom he supports, if Democrats agree to stop the nomination of appellate judges until after the November election.

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Appeals Court Upholds Ban on Direct Corporate Contributions

The Fourth U.S. Circuit Court of Appeals has reversed a trial judge’s decision striking down a federal ban on direct corporate contributions to federal candidates.

The Supreme Court’s Citizens United decision from 2010 didn’t overturn the ban on direct corporate contributions to candidates, the appeals court ruled, according to a Bloomberg article.

“The attempt to overturn the corporate contribution ban was an invitation to a return to the blatant political corruption and rampant scandals of the Gilded Age,” said Tara Malloy, senior counsel at the Campaign Legal Center. “We are pleased the Fourth Circuit corrected the gross judicial overreach by the lower court.”

To learn about the trial court’s ruling, see Gavel Grab. The Campaign Legal Center is a JAS partner group.

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Roberts Casts Deciding Vote; ‘Activist’ or ‘Referee’?

By casting the deciding vote to uphold the central provision of the hugely controversial Affordable Care Act, Chief Justice John Roberts Jr. surprised many observers. He was praised by some liberal pundits and criticized by some conservatives following the 5-4 ruling (see Gavel Grab).

“It’s a terrible day for the American people,” said Rep. Michele Bachmann, a Minnesota Republican who ran for president, according to Salon. “This was an activist court that rewrote the law to make it even more ineffectual, and even more expensive.

A National Review Online headline trumpeted “Chief Justice Roberts’s Folly.” The editorial protested:

“The Constitution does not give the Court the power to rewrite statutes, and Roberts and his colleagues have therefore done violence to it. If the law has been rendered less constitutionally obnoxious, the Court has rendered itself more so. Chief Justice Roberts cannot justly take pride in this legacy.”

Wrote Ross Douthat in a New York Times essay, “Obamacare seems to have been saved by Chief Justice Roberts’s decision to put political considerations ahead of a straightforward reading of the health care bill.”

From an opposite vantage point, Andrew Rosenthal wrote in a New York Times blog, “This is going to be hard for right-wingers to swallow, since Chief Justice Roberts was their great standard bearer for conservative judicial and political thought and against ‘judicial activism.’ But he has enhanced, in no small way, the reputation of a court whose standing has suffered greatly since Bush v Gore.”

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Editorial: Montana Ruling Clouds Democracy’s Future

The Supreme Court has “blocked off sensible solutions” for reasonable campaign finance rules, a USA Today editorial commented on a ruling in a Montana case this week.

The court overturned a century-old Montana anti-corruption law that prohibited independent expenditures by corporations on state elections. The law had held up for decades with backing by governors and legislatures from both parties in a state where political corruption, and the big money enabling it, earlier was  king.

In striking down Montana’s law, the Supreme Court found that it conflicted with its own landmark Citizens United ruling from 2010. In Citizens United, the court had said it did not believe unlimited political expenditures would give rise to corruption or its appearance. The editorial disagreed:

“Perhaps the majority has not been paying attention. Already this year, several congressional primaries have been won by candidates who benefited from a flood of last-minute money into independent advertising. In some cases, voters didn’t know the identity of the people giving this money or the donors’ agendas.”

The editorial concluded, “The future, it seems, might not be so far removed from Montana’s past.”

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Justice Shepard: A Need for Civic Education, and Some Ideas

It is necessary for judges and lawyers to help instruct the public about law and government, and “technology is our friend” in doing so, former Indiana Chief Justice Randall T. Shepard writes in an Atlantic online essay.

Justice Shepard, a member of the Justice at Stake board, explains:

“Judges and lawyers have traditionally not viewed themselves as having a central role in public education about law and government. We thought that other elements of society had ownership of that task. But the diminished capacity of some of these elements (especially the incredible shrinking press), suggest that the profession must be more assertive on this front.”

On the technology front, Justice Shepard notes the use of webcasts to provide “something akin to gavel-to-gavel coverage” of court proceedings and inform the public in a manner easily managed by courts and at a low cost.

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