Podcast: Elena Kagan, Greece, War on Drugs, REAL ID, Line-Item VetoGuests: Marty Connors, Brooklyn Roberts
A couple of items in the news lately have brought the judiciary back into the consciousness of the American public; the announced retirement of Supreme Court Justice John Paul Stevens, and the recent decision by federal judge Barbara Crabb in Wisconsin in which she ruled that the National Day of Prayer is a violation of the Establishment Clause of the U.S. Constitution. In the rulings of both justices we find an egregious disrespect for the plain meaning of the Constitution, and it is a failure of the American people to learn the Constitution that has allowed us to stray so far.
As a nation, we have reached a point where we bestow upon the courts an unjustified level of deference to their perceived wisdom. In fact, the Founding Fathers created the judiciary to be the weakest of the three branches, vested as they are with lifetime appointments.
Thomas Jefferson wrote (in a letter to William C. Jarvis, 1820) that “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so.” Yet today we have allowed the courts to be elevated to the level of an oligarchy, where we accept rulings that are clearly unaligned with the Constitution without so much as a whimper.
Podcast: Post-HCR Threats, “Control the People,” ObamaCare Impact, Nullification, Hank Skinner case, Guest: Jeff Scott
Podcast: Jim Bunning, 2nd Amendment, Health Care Reform, Reconciliation, Extremism, Puppycide,Guests: Doug Deal & Mike Hassinger
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.
In a decision that is being viciously derided by the Left, the Supreme Court struck down Section 4 of the Voting Rights Act because the standards by which the federal government reviewed changes in certain states’ election laws were out of date.
The case, Shelby County v. Holder, asked the Court to review two specific sections of the Voting Rights Act, which was enacted by Congress in 1965 as a response to pervasive Jim Crow laws in the South. These laws, which were a scourge on our history, mandated racial segregation and discouraged minorities from voting.
Section 4 of the Voting Rights Act set determined the states that were subject to pre-clearance requirement in Section 5 based on the number of minority voters they had registered. While this section of the law was undoubtedly needed in 1965, the screening forumla is out-of-date. Moreover, the process for approval is arduous and costly for states.
Writing for the majority, Chief Justice John Roberts explained that the criteria needs to be updated to reflect current conditions in order to justify pre-clearence for states with a track record for racial discrimination.
“Congress could have updated the coverage formula at that time, but did not do so, noted Roberts. “Its failure to act leaves us today with no choice but to declare [Section] 4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.”
The Supreme Court will weigh into whether President Barack Obama stepped outside of his constitutional constaints early last year when he made “recess appointments” to fill three vacanies on the National Labor Relations Board (NRLB).
“The specific issue is the scope of the Constitution’s grant of presidential power to put an official temporarily into office without Senate approval – a power that arises when the Senate is not on hand to review that appointment,”noted Denniston. “Answering that could require the Court to define when the Senate, in a legal sense, goes into recess.”
“The issue goes as far back as recess appointments by George Washington, but it also is as new as the latest partisan jousting between President Obama and Senate Republicans over his appointment power,” he added. “The gridlock over Obama nominees has threatened to make one government agency – the NLRB – unable to function.”
The Constitution, in Artlcle II, Section 2, provides the president with the power to submit nominations for “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” These nominations are reviewed by the Senate, though its “advice and consent” role, and must be approved by 2/3 of that chamber.
The Supreme Court of the United States ruled on Monday that states creating DNA databases with samples collected from felony arrestees is constitutional. The 5-4 decision had an interesting split, leaving liberal Justice Stephen Breyer taking sides with the conservatives, and conservative Justice Antonin Scalia writing the dissenting opinion.
Justice Anthony Kennedy wrote for the majority:
Writing for the majority, Justice Anthony Kennedy called the taking of a cheek swab from felony arrestees “a legitimate police booking procedure that is reasonable under the Fourth Amendment.” His opinion argued that the testing could be justified as a means of confirming the identification of suspects.
“In light of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks,” Kennedy wrote, joined by Chief Justice John Roberts, Justices Samuel Alito, Clarence Thomas and Breyer. “That same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody.”
Don’t look now, but ObamaCare is headed back to the Supreme Court. Even though many of us thought the decision upholding the constitutionality of the individual mandate — the heart of President Obama’s health care law — was the end of the story, a legal challenge by Liberty University, a Virginia-based Christian college, on religious grounds has brought ObamaCare back into focus.
Philip Klein has the story:
When Obama signed the national health care legislation into law in March 2010, Liberty University launched a multi-leveled suit against the federal government. This past June, the U.S. Supreme Court already ruled that the law’s individual mandate was constitutional, but did not address two other issues raised by the suit. Specifically, Liberty had challenged the constitutionality of the law’s requirement that employers with over 50 employees either offer acceptable health insurance or pay a penalty and also argued that the law forces the funding of abortion, thus violating the First Amendment’s clause barring Congress from interfering with the free exercise of religion.
When Liberty had argued its case to the Fourth Circuit Court of Appeals in Richmond last year, the judges essentially punted. They determined that a statute called the Anti-Injunction Act, which bars challenges to a tax until somebody has paid it, prevented the court from considering the suit at that time. But as part of its June ruling on the health care law, the Supreme Court said that the Anti-Injunction Act did not apply in this case. (This confused many, because justices also separately ruled that the individual mandate was a constitutional exercise of Congress’s taxing power.)
The Supreme Court will hand down its ruling tomorrow in the case against the Patient Protection and Affordable Care (PPACA). As one might imagine, there is still a lot of speculation about where the ruling might fall. The latest poll on the matter, this coming from the Wall Street Journal and NBC, shows that a plurality of Americans would feel more comfortable if the High Court threw out the law. Republicans have already put together talking points on repeal of the law, anticipating that only the individual mandate will be tossed.
The law is indeed bad news, and not just from a legal perspective. Whether or not the Supreme Court strikes down ObamaCare, it’s not going to prevent health care costs from rising. And then, after the constitutional concerns, we have the more immediate fiscal issues with the law, such as the fact that it raises taxes and fees in tough economic times and is largely a fiscal boondoggle. While theses issues are certainly a big factor driving opposition to ObamaCare, they are not the concern of the Supreme Court, which is tasked the the constitutionality of the law and whether or not it is severable.