Antonin Scalia lives in a fairy-tale world: His delusional Obamacare theories will make people die

Antonin Scalia (Credit: AP/Manuel Balce Ceneta)

SALON

“Intellectual” justice thinks Congress will fix ACA. Really? If exchanges fall apart, people will lose coverage

By now the nine justices on the Supreme Court have reached their decision on the King v. Burwell lawsuit. It remains a secret until the court hands down its opinion in June.

The plaintiffs are four Virginia residents who have challenged the provision in the Affordable Care Act (ACA) that authorizes the Department of Health and Human Services to establish a Federal Health Care Insurance Exchange as a fallback for states that elected not to establish state exchanges.

If they prevail, an estimated 9 million Americans in 34 states that did not set up exchanges—in most cases because their governments objected to the ACA itself—lose the federal subsidies that make insurance coverage purchased on the federal exchange affordable.

The litigation’s perverse contradictions begin with the plaintiffs. To get standing to sue, their incomes had to be low enough to qualify for IRS tax subsidies provided through the ACA. Although they qualify, they do not want subsidies. Refusing subsidies, they claim they are illegally “coerced” into paying a small ($95) tax penalty for not buying insurance they cannot afford without subsidies.

Again, perverse.

If they prevail, more than 319,000 of their fellow Virginians will lose subsidies they currently receive. Absent the subsidies, they will probably be unable to afford health care coverage.

Another perverse contradiction. There is no state exchange in Virginia, because the GOP majority in the General Assembly refused to establish one, leaving those 319,000 Virginians to purchase health care coverage on the federal exchange. One logical resolution to the impending insurance crisis would be to allow voters in Virginia—and in the other states that have refused to set up exchanges—to go to the ballot box and oust the legislators who rejected a state exchange.

But the crisis is not political. It is actuarial. It is immediate. And it is much larger than Virginia.

“[A ruling for the plaintiffs] precipitates the insurance market death spirals that the statutory findings specifically say the statute was designed to avoid,” said Justice Sonia Sotomayor during oral arguments.

The “death spiral” begins with the mass cancellation of subsidized policies that will follow a ruling against the federal exchange. Only the sickest individuals, who dare not risk going uncovered, will remain insured. The departure of healthy individuals will drive premiums higher, which will encourage more and more people to pay the tax penalty rather than pay soaring insurance premiums.

The loss of an anticipated 9 million healthier individuals who purchased coverage through the federal exchange will reverberate through all the states until the entire insurance system is no longer viable.

Yet another contradiction was articulated by Justice Antonin Scalia. His questions in printed transcripts are always unequivocal. What one misses by not sitting in the courtroom is his anger, contempt for counsel with whom he disagrees, and rank sarcasm.

“What about, what about Congress?” Scalia asked. “You really think Congress is just going to sit there while all of these disastrous consequences ensue … Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is it not going to happen here?”

When Solicitor General Donald Verrilli responded, “Well, this Congress, Your Honor,” Scalia cut him off.

“I don’t care what Congress you’re talking about. If the consequences are as disastrous as you say, so many million people without insurance and what not, yes, I think this Congress would act.”

Justice Clarence Thomas claims he never reads a newspaper. (He also hasn’t asked a question from the bench since February 22, 2006.) Antonin Scalia is worldly, informed and engaged.

He was probably aware that exactly 29 days before the Court heard arguments on King v. Burwell on March 4, the Republican-controlled House voted to completely repeal the Affordable Care Act. If he missed that 239-186 vote, he must know something about the 59 House votes since 2011 that would have repealed part or all of the Affordable Care Act.

Even if the House were to decide to “fix” the ACA, which would require changing one dependent clause in a 2,700-page statute, it could not do so.

One week before oral arguments, House Speaker John Boehner was embarrassed by his own caucus when a bill he brought to the floor to fund the Department of Homeland Security for one week failed for lack of Republican support.

The Supreme Court decision that comes down at the end of next month is decisive and of enormous consequence. If a majority of the justices rule against the ACA, neither the Congress nor the 34 state legislatures that refused to create state exchanges can act in time to save the health care system.

Subsidies will end immediately.

And the death spiral will begin in July.

LOU DUBOSE

Supreme Court Rules Against Abercrombie & Fitch In Discrimination Case

Samantha Elauf stands outside the Supreme Court in Washington, D.C., Wednesday, Feb. 25, 2015. | ASSOCIATED PRESS

THE HUFFINGTON POST

WASHINGTON — The Supreme Court ruled 8-1 on Monday that retailer Abercrombie & Fitch may have violated workplace discrimination law when it turned down a Muslim job applicant because she wore a hijab, even though her religious beliefs never came up in the interview.

Samantha Elauf, the job seeker at the center of the case, applied for a sales position at an Abercrombie children’s store in Oklahoma in 2008. Despite her high marks in the interview, Elauf didn’t land the job because her headscarf ran afoul of Abercrombie’s employee “look policy,” which bars hats and promotes the retailer’s preppy brand. Elauf sued with the help of the U.S. Equal Employment Opportunity Commission.

Civil rights law requires that employers accommodate workers’ religious beliefs in the workplace, and forbids them from firing or not hiring someone because of those beliefs. But Abercrombie argued that it couldn’t have known to make such an accommodation because Elauf, who was 17 at the time, never requested one.

The majority of justices didn’t buy that argument, reversing an earlier appeals ruling in Abercrombie’s favor. They said that whether or not Abercrombie had firm knowledge of Elauf’s need for an accommodation was not relevant — only whether her headscarf was a “motivating factor” in their decision not to hire her. (In Elauf’s case, an Abercrombie manager had correctly assumed that Elauf was Muslim, and that she would regularly wear the hijab on the job.)

“Motive and knowledge are separate concepts,” Justice Antonin Scalia wrote for the majority. “[A]n employer who acts with the motive of avoiding accommodation may violate [the law] even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

The ruling sends Elauf’s case back to the lower court for further consideration. Justice Clarence Thomas was the lone dissent, penning an opinion that partially concurred with the majority.

In a statement, Abercrombie noted that the Supreme Court ruling did not find that the company discriminated against Elauf, only that Elauf can pursue her claim in court. The company said it is considering its next steps in the case, and that it is committed to “an open-minded and tolerant workplace environment.”

“We have made significant enhancements to our store associate policies, including the replacement of the ‘look policy’ with a new dress code that allows associates to be more individualistic; changed our hiring practices to not consider attractiveness; and changed store associates’ titles from ‘Model’ to ‘Brand Representative’ to align with their new customer focus,” the company said.

Abercrombie’s lawyers argued that a ruling in favor of Elauf would pressure companies to ask or make assumptions about job seekers’ religious beliefs — a dicey proposition, they said, since employers aren’t supposed to inquire about a worker’s religion. But the EEOC said that a job applicant like Elauf shouldn’t have to bear the full burden of raising the possibility of a religious accommodation, especially since the employer would know best whether there may be a conflict with company policy.

David Lopez, general counsel for the EEOC, praised the ruling in a statement Monday.

“At its root, this case is about defending the quintessentially American principles of religious freedom and tolerance,” Lopez said. “This decision is a victory for our increasingly diverse society and we applaud Samantha Elauf’s courage and tenacity in pursuing this matter.”

Justice Samuel Alito, a member of the court’s conservative wing, signaled his leaning on the case during oral arguments in February, when he raised a hypothetical situation that, by his own admission, sounded “like a joke.”

CONTINUED HERE…

This Is Why The Supreme Court Is Going To Rule In Favor Of Marriage Equality

Reuters

Addicting Info

With the Supreme Court set to hear arguments for and against making marriage equality the law of the land, there’s been a lot of analysis, most of it legal, all of it pointless:

Constitutional lawyers, however, are confident enough in the imminent future of nationwide marriage equality to insist that anything less would require an extraordinarily complex – even unprecedented – reading in stark contrast with the court’s recent history and occasionally overt political leanings.

Between the clever way the cases have been set up and the overwhelming pressure to answer to public demand, the end of state gay marriage bans is not just inevitable, court watchers say – the nine justices may be left with no other choice.

The idea here is that ruling against same-sex marriage would require the conservative justices (who else would it be?) to rule against state-sanctioned marriage in general and/or deny that the LGBT community is protected by the 14th Amendment.

But if John Roberts and the other right-wing lunatics on the SCOTUS want to rule against marriage equality while claiming it doesn’t affect gays or marriage, they will. This is the same court that handed down a ludicrously narrow ruling in order to give George W. Bush the presidency. This is the same five conservative “champions” of state’s rights that overruled the laws of Florida for the express purpose of stopping a perfectly legal and completely reasonable recount. Legal precedent means absolutely nothing to them. Logic and reality mean absolutely nothing to them. This is possibly the most partisan and politically motivated court in American history. (Emphasis are mine: KS)

And that is why the Supreme Court will vote to make marriage equality the law of the land.

That might seem counter-intuitive at first. Wouldn’t the conservatives on the bench support Republican legislative efforts to make bigotry and hatred into law? Sure, if they thought that would be in the best interest of the Republican Party. Had this case gone to the Court in 2004, they would have leapt at the chance to codify discrimination against the LGBT community with a smile on their faces and a song in their hearts.

But that was then and this is now.

As always, conservatives were on the wrong side of history. Right now, over 60 percent of the country supports gay rights. Staking your ground as the one who hates homosexuals the most, a necessary strategy for GOP primaries, is becoming a crippling blow in general elections. Just like the average American recoiled from open racism against blacks, they’re now recoiling from open anti-gay bigotry. Even Corporate America has decided that bigotry is bad for business as Indiana’s Republican governor, Mike Pence, found out when he tried to make it legal to discriminate against homosexuals.

Any and every Republican not in a blood-red gerrymandered district that openly espouses anti-gay views is putting himself at risk. Marriage equality has become a cudgel for liberals and Democrats to bash Republicans with. But at the same time, if Republicans drop the crusade against The Gay, their hate-filled base will destroy them. If the Supreme Court rules against marriage equality, Republicans MUST keep fighting that battle and it will cost them in the general elections.

If, on the other hand, the SCOTUS makes marriage equality and LGBT rights the law of the land, Republicans can drop the issue and blame the Court. It’s that simple. Scalia will put up the token stink about it and that will be it. Republicans will still make some noise for an election or two but they’ll quietly drop it in purple states because the issue is a loser.

It’s also worth noting that the Court will not strike down the subsidies for Obamacare for the exact same reason: It would be a disaster for Republicans. The fix to the bill would be simple but Republicans won’t be able to do it because their base would, again, flay them alive. Millions of people would lose their insurance and everyone would blame Republicans for not passing the simple fix. Rock, meet hard place. It would be an electoral disaster going into the 2016 election cycle. There is no chance of the conservatives on the Court handing such a potent weapon to Democrats.

Usually, we can rely on the conservative wing of the Supreme Court to against the best interests of the American public but in these two instances, they really don’t have a choice but to do what’s best for the country. Oh, how that must sting their egos.

LEFT WING NATION

A Supreme Court decision against Obamacare could cost states billions and billions of dollars

Washington Post ~ Greg Sargent

If you want a sense of just how far-reaching the impact of a Supreme Court decision gutting Obamacare subsidies could prove, new data on health care signups released this week provide a fresh way to game out such a ruling’s consequences.

The Department of Health and Human Services announced the other daythat some 11.4 million people have signed up for health plans through federal marketplaces. The new HHS data also provides a breakdown of the number of sign-ups in each of the three dozen states on the federal exchange — precisely the states that would no longer get subsidies if the Court invalidates tax credits to people in all federal exchange states.

This provides a way of approximating just how much money in tax credits each state could lose if the Court rules that way. We’re talking about enormous amounts of money: Florida could lose nearly half a billion dollars per month in subsidies to its constituents. Texas could lose a quarter of a billion dollars per month. North Carolina and Georgia could each lose over one hundred million per month.

Here it is in chart form (a note on methodology is below), detailing the impact of such a ruling on the 14 states that stand to lose the most:

The column on the left details the approximate total number of people in each state who qualify for subsidies. The middle column details the average amount in subsidies per person. And the column on the right details the approximate total number of dollars per month that are set to flow into each state — money that would presumably stop flowing if SCOTUS guts the subsidies.

This methodology was suggested to me by Larry Levitt, a senior vice president at the Kaiser Family Foundation who may know more about the Affordable Care Act than anyone else alive. He says one reasonable way of trying to calculate total subsidies per state is to take the total number of new signups in each state, and multiply that by the percentage in each state who qualify for tax credits, data that is also supplied by HHS. That produces the approximate total in each state who qualify for subsidies (the left column).  You then multiply that by HHS data detailing the average monthly subsidy payment in each state (the middle column), and it gives you the approximate total in monthly subsidies to each state (the right hand column).

A few caveats: First, these calculations are very rough and approximate. The data on the percentages who qualify for subsidies and on average monthly subsidies are a little bit older than the newest data on total signups (but they probably won’t change much). Also, not all of the people who signed up will end up paying, so these totals will likely drop somewhat, though it’s hard to know how much. Still, Levitt says this is a good way of trying to gain a rough sense of how much money in each state we’re talking about here.

“This a very reasonable approach to estimating the amount of federal subsidies people living in these states will receive,” Levitt says. “Billions of dollars are flowing to low and middle income people under the law, and most of those are going to people in states using HealthCare.gov. This makes it very tangible: If the Supreme Court sides with the plaintiffs, states would be losing in some cases hundreds of millions in federal money per month.”

If defenders of the law get their way, numbers like these could end up having legal significance. A number of states have argued, in a brief filed for the government’s side, that the plain text of the ACA contains noexplicit threat to withdraw subsidies from states that fail to set up exchanges. Thus, they argue, if the Supreme Court guts subsidies, it would impose a “dramatic” hidden punishment on them and their residents for their decision not to set up an exchange, despite the fact that they had no clear warning of the consequences of that decision. This raises serious Constitutional concerns, and as a result, the states argue, the Supreme Court should opt for the interpretation of the statute that doesn’t raise those concerns — the government’s interpretation that subsidies are universal.

This federalism argument, which has been expanded upon by law professors Nicholas Bagley and Abbe Gluck, could potentially appeal to Anthony Kennedy or possibly to John Roberts. The fact that the states stand to lose such enormous amounts in subsidies to their residents could help underscore that case.

Indeed, all of this suggests that a SCOTUS ruling against the ACA could create real problems for GOP lawmakers in many states. Reuters reportsthat officials in some states are currently scrambling to figure out what to do in the event of such a ruling. Even state officials who want to respond by setting up their own exchanges — keeping subsidies flowing — tell Reuters they may not be able to do so for political and other logistical reasons, meaning they’d lose subsidies even if they don’t want to. In Ohio, for instance, GOP governor John Kasich has suggested he wants to come up with a fix but doesn’t seem clear on what. It’s perhaps not surprising, then, that relatively few red states have signed a brief in support of this lawsuit.

Meanwhile, Republicans in Congress are working hard to convey the impression that they might have a contingency plan in place — or even their own alternative health reform — for those who might lose subsidies and coverage. Such feints are probably just designed to persuade the Justices that the consequences of an anti-ACA ruling might somehow not prove so dire. But, taking those Republicans at their word, numbers such as the above provide a useful way to judge any such contingency plans or alternatives: Do they come anywhere close to covering the same numbers of people?

Conservatives might seize on these sums of money for their own purposes.Some on the right are arguing that, if SCOTUS does gut subsidies to millions, Republicans must not offer a fix that spends anything close to the same amount in subsidizing those people’s health care, and instead must advocate for a return to a pre-Obamacare baseline level of spending and propose “free market” solutions instead. These conservatives will likely argue that such huge expenditures as those detailed above underscore their point.

As I’ve repeatedly written, I think there’s a decent chance the Justices could side with the challengers. The massive amounts of money at stake underscore that if this does happen, a whole new political and policy story will unfold from there, with consequences that no one should pretend to be able to predict.

The Supreme Court Just Quietly Made Marriage Equality The Law Of The Land In Many States

CREDIT: AP PHOTO/RICHARD VOGEL

What could be more perfect for proponents of same-sex marriage.  This is the crack in the barrier needed to proceed even further. Kudos to  those Justices who signed on to this decision…

Think Progress

In a surprising anti-climax to one of the most important legal battles of the last several decades, the Supreme Court announced today that it would not hear several cases where federal appeals courts held that the Constitution guarantees same-sex couples the same marriage rights as straight couples. The announcement listed these marriage equality cases as part of a lengthy order listing the cases where the Court had denied review. The justices offered no explanation for their decision.

As a practical matter, however, this decision not to hear these cases is an earthquake for gay rights. The United States Court of Appeals for the Fourth Circuit, which covers Maryland, Virginia, West Virginia, North Carolina and South Carolina, refused to issue a stay halting its order favoring marriage equality. Although the Supreme Court later stepped in with its own stay order, that order provides that the Supreme Court’s stay will “terminate automatically” if the Supreme Court denies review of the case. Now that the justices have done so, there should be no further legal barriers preventing marriages from beginning in those five states — although it is possible that there may be some delay before marriages may begin due to procedural steps that need to be taken by the judiciary.

The Court also denied review in cases arising out of the Seventh Circuit, which covers Illinois, Indiana and Wisconsin, and in the Tenth Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. It is likely that marriages will be able to begin quickly in those states as well — although it may be necessary for plaintiffs in some of those states to seek an order from a federal court requiring states that oppose marriage equality to comply with their obligations under the Constitution.

One thing that should be noted is that there are still marriage equality cases pending before conservative circuits that could rule against equality. Nevertheless, the fact that marriages are likely to begin very shortly in the states currently subject to court orders will make it very difficult for the Supreme Court to reverse course — and retroactively invalidate those marriages — in a subsequent opinion.

Poll: 70 Percent Want To Abolish Lifetime Tenure At Supreme Court

Justice Sonia Sotomayor and Chief Justice John Roberts | AP Photo J.Scott Applewhite

If only…

TPM DC

Seven in ten Americans want to end lifetime appointments for Supreme Court justices, according to a new Harris poll out Wednesday.

Asked if justices should not have lifetime appointments, 41 percent “strongly” agreed and 28 percent “somewhat” agreed. Just 18 percent disagreed, 8 percent “strongly” and 10 percent “somewhat.” Twelve percent weren’t sure.

Lifetime tenure is baked into the U.S. Constitution, which provides that federal judges “shall hold their Offices during good Behavior.”

Some legal scholars have called for ending it, though; one idea is to replace it with a fixed 18-year term for Supreme Court justices including a lifetime salary.

Seventy percent of respondents also said the Supreme Court should “fairly represent the demographic (e.g., race, gender) makeup of the United States,” and 71 percent it should “fairly represent Americans’ diverse socioeconomic backgrounds.”

The Harris poll surveyed more than 2,000 adults online from Aug. 13-18. It does not state a margin or error.

The 4 Supreme Court Cases to Watch This Summer

The National Journal

It’s that time of year again, when we turn to the Supreme Court with bated breath every week to see what decisions the nine-person panel will hand down that promise to change the legal landscape of the nation. Of the dozens of cases the high court has yet to decide, several will have far-reaching implications affecting laws ranging from search and seizure to Obamacare to abortion protests. The Supreme Court has already handed down decisions on campaign finance and international treaties, but here are some more to watch:

Sebelius v. Hobby Lobby

This is by far the most highly anticipated Court decision of the season, following up last year’s 5-4 ruling on the constitutionality of the individual mandate in the Affordable Care Act. At issue is whether employers, in this case Hobby Lobby, can refuse to comply with a federal law requiring companies to provide birth control to employees. The crafts chain store is challenging part of Obamacare, saying that Hobby Lobby’s family ownership and strong religious backing mean that the mandate is a “burden” to its exercise of religion. Conestoga Wood Specialties, a company owned by Mennonites, has also sued over the mandate, claiming that it violates its First Amendment rights to religious freedom. The company also says the mandate violates the Religious Freedom Restoration Act, a 1993 law signed by President Clinton. Supporters of the contraception requirement are pessimistic about the upcoming ruling, fearing that swing-vote Justice Anthony Kennedy’s objections during oral arguments were an ominous sign for the decision ahead. Those on the left also fear that a sweeping ruling about so-called religious liberty may lend legitimacy to future laws that discriminate based on sexual orientation.

National Labor Relations Board v. Noel Canning

President Obama was frustrated in 2012 when Senate Republicans blocked his nominees to the National Labor Relations Board, which enforces federal labor laws. So, he started to fill slots on the board using a tool the executive branch has historically relied on: appointing people during a Senate recess, thereby avoiding a Senate vote. But some people say his actions may have been unconstitutional. Washington state-based companyNoel Canning was in a labor dispute with a local union in 2012. TheNLRB, operating with recess-appointed members, ruled in favor of the union. Now, the company is objecting to the legitimacy of the board. The Constitution allows the president to “fill up all vacancies that may happen during the recess of the Senate.” But interpretation is key here. Both liberal and conservative justices seemed to disagree with the government’s reasoning during oral arguments, which means that Obama’s recess appointments—and rulings by the NLRB—may be at risk.

Riley v. California

Previous court rulings allow police to search a person without awarrant when he or she is arrested. But this case hinges on whether information on suspects’ cell phones can be used against them. In 2009, David Riley was pulled over by police for an expired license plate, and officers took and searched his phone. Information and photos found on the phone led police to link Riley to a shooting and an attempted murder, eventually resulting in his conviction. In the second case before the Court, U.S. v.Wurie, the police were able to use photos and phone logs onBrimaWurie’s flip phone to gather more evidence against him in a 2007 drug case.

McCullen v. Coakley

Massachusetts state law currently allows for a 35-foot buffer zone between protesters and reproductive health care facilities. The selective law is being challenged by “compassionate counselor” Eleanor McCullen, who claims it violates her free speech rights. Historically, protests outside of abortion clinics have led by to violent attacks, including bombings. Supporters of the law say that overturning the state law could lead to public-safety hazards. A Supreme Court ruling from 2000 is also at stake. Back then, the Court upheld a Colorado law that prohibited protesters from approaching within 8 feet of people outside clinics without their consent.

Constitutional Monarchy – Thom Hartmann

This video pertains to yesterday’s SCOTUS decision…

Thanks to Marbury v. Madison…

“We officially no longer live in a democracy or a democratic republic. We have moved – full-blown – into a constitutional monarchy. And the monarchs are these nine people – the nine justices of the Supreme Court”. ~ Hartmann

I’m curious to know if Thom Hartmann feels the same way after today’s SCOTUS decision to do away with DOMA.

Supreme Court Strikes Down Arizona Voter Registration Citizenship Requirement

Huffington Post

States can’t demand proof of citizenship from people registering to vote in federal elections unless they get federal or court approval to do so, the Supreme Court ruled Monday in a decision complicating efforts in Arizona and other states to bar voting by people who are in the country illegally.

The justices’ 7-2 ruling closes the door on states independently changing the requirements for those using the voter-registration form produced under the federal “motor voter” registration law. They would need permission from a federally created panel, the Election Assistance Commission, or a federal court ruling overturning the commission’s decision, to make tougher requirements stick.

Justice Antonin Scalia, who wrote the court’s majority opinion, said federal law “precludes Arizona from requiring a federal form applicant to submit information beyond that required by the form itself.”

Voting rights advocates welcomed the ruling.

“Today’s decision sends a strong message that states cannot block their citizens from registering to vote by superimposing burdensome paperwork requirements on top of federal law,” said Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund. “The Supreme Court has affirmed that all U.S. citizens have the right to register to vote using the national postcard, regardless of the state in which they live.”

Under Proposition 200 approved in 2004, Arizona officials required an Arizona driver’s license issued after 1996, a U.S. birth certificate, a passport or other similar document before the state would approve the federal registration application. It can no longer do that on its own authority.

Less than 5 percent of people registering to vote in Arizona use the federal form, said Matt Roberts, a spokesman for Arizona Secretary of State Ken Bennett. The rest register through the state, meaning they will continue to be asked to provide proof of citizenship when signing up to vote.

Continue reading here…

Related articles

• U.S. Supreme Court Strikes Down Arizona Voter I.D. Law (newsy.com)
• SCOTUS says states can’t require proof of citizenship to register voters (watchdog.org)
• SCOTUS rejects Arizona voter registration rule – Josh Gerstein (shortformblog.com)
• Supreme Court: Federal election law trumps Arizona’s proof-of-citizenship mandate (azfamily.com)
• Supreme Court Struck Down Arizona’s Voter Registration Law (americanlivewire.com)
• Supreme Court strikes down AZ law requiring proof of citizenship for registration (nbclatino.com)
• SUPREME COURT DECISION | Keeping Noncitizens Out of the Polling Place (heritage.org)
• Supreme Court strikes down Arizona voting law (cbsnews.com)

Sotomayor Leads Liberal Justices In Defending The Voting Rights Act

Supreme Court justice Sonia Sotomayor is acknowledged by President Barack Obama at the Congressional Hispanic Caucus Institute’s 34th Annual Awards Gala at the Washington Convention Center, Wednesday, Sept. 14, 2011 in Washington. (AP Photo/Charles Dharapak)

TPMDC

Seemingly aware that they were outnumbered and fighting an uphill battle, the four liberal justices on the Supreme Court defended the Voting Rights Act during Supreme Court oral arguments Wednesday with a mix of sharp questions, appeals to history, and indirect rejoinders to the more conservative justices.

All four of them participated actively in oral arguments. None was more emphatic than Justice Sonia Sotomayor.

The Obama-appointed justice asked the first question of the day. She hammered Burt Rein, the lawyer representing the challengers, Shelby County of Alabama, over its record of discrimination. The county contends that Section 5 is unfair to its residents and other jurisdictions that it requires to obtain federal pre-clearance before changing their voting laws.

“Assuming I accept your premise, and there’s some question about that, that some portions of the South have changed, your county pretty much hasn’t,” Sotomayor said of Shelby County, which is 90 percent white. “In the period we’re talking about, it has many more discriminating -­- 240 discriminatory voting laws that were blocked by Section 5 objections. … You may be the wrong party bringing this.”

“Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?” she asked, wondering why the Court should invalidate Section 5 if, as she argued, any formula would cover Shelby County. “Discrimination is discrimination.”

While Section 5 was taking a beating at the hands of the conservative justices, the four liberal-leaning justices targeted various audiences. Sometimes they played to each other, sometimes to the conservative justices they hoped to sway, sometimes to the future Court, sometimes to the public audience.

Justice Stephen Breyer several times tried to needle the lawyers defending the Voting Rights Act into addressing conservatives’ concerns. Other times, he did so himself.

“The disease is still there in the state,” he said. “Of course this is aimed at states. What do you think the Civil War was about? Of course it was aimed at treating some states differently than others.”

Justice Ruth Bader Ginsburg took the liberty of knocking down what she viewed as a straw man argument by attorney Rein.

“Mr. Rein, you keep emphasizing over and over again in your brief registration and you said it a couple of times this morning,” she said. “Congress was well aware that registration was no longer the problem. This legislative record is replete with what they call second generation devices. Congress said up front: We know that the registration is fine. That is no longer the problem. But the discrimination continues in other forms.”

Justice Elena Kagan twice said the Section 5 coverage formula has been working “pretty well” when it comes to snuffing out voter discrimination where it’s most likely to emanate. When Rein argued that it’s the courts, not Congress, who should determine whether the coverage formula is legitimate, she sounded shocked.

“That’s a big new power you’re giving us,” Kagan said, “that we have the power to determine when racial discrimination has ended. I did not think we had that power.”

In the final moments of the argument, Sotomayor, apparently taken aback by Justice Antonin Scalia’s statement that Section 5 is a “perpetuation of racial entitlement,” put the question to Shelby County’s lawyer.

“Do you think that the right to vote is a racial entitlement in Section 5?” she asked Rein. When he dodged, she asked him again: “I asked a different question. Do you think Section 5 was voted for because it was a racial entitlement?” He dodged again.

Related articles

• Scalia: renewing Voting Rights Act a ‘perpetuation of racial entitlement’ (tv.msnbc.com)
• Sotomayor Leads Liberal Justices In Defending The Voting Rights Act (tpmdc.talkingpointsmemo.com)
• US supreme court leans towards striking part of Voting Rights Act (guardian.co.uk)
• Section Five (juanitajean.com)
• Voting Rights Act under fire at Supreme Court (politico.com)
• Scalia: Voting Rights Act is ‘racial entitlement’ (seattlepi.com)
• Argument recap: Voting law in peril – maybe (scotusblog.com)
• Scalia: Voting Rights Act Is ‘Perpetuation Of Racial Entitlement’ (kstreet607.com)