A bad day for Obama at the Supreme Court

March 28, 2012 By 14 Comments

On the second day of oral arguments on Obamacare at the Supreme Court, the majority of the justices were  shooting holes in the administration’s arguments.  Justice Kennedy, usually a key swing voter, expressed skepticism that the government has the constitutional power to force citizens to buy something.  So, surprisingly, did Obama appointee Justice Sotomayor, at least at one point, though at other times she seemed to be in sync with the other three liberals in throwing softball questions.  Not that you can reliably tell the final outcome from judges’ interrogations, but supporters of the law are not feeling good about the day.

There will be one more day of arguments.  The ruling isn’t expected until June.

 

Filed Under: Government, Law, Medicine Tagged With: , 14 Comments

Supremes hear Obamacare arguments today

March 26, 2012 By 38 Comments

Today the Supreme Court will hear arguments on whether or not Obamacare is constitutional.  The issue hinges on whether or not Congress can force citizens to buy a product, as the healthcare law requires of health insurance.  (George Will noted a killer argument filed by the Institute for Justice in an amicus brief:  According to the whole history of contract law, no one can be coerced into signing a contract.)

Does anyone know if the individual mandate is the only aspect of the law the court will hear?  Is the contraceptive and abortion pill mandate also on the table?  I suspect these are separate issues.

The court might overturn the mandate requiring that everyone buy health insurance while still leaving the rest of the law intact.  Which would make it worse than ever, since it would recast health care without even taking care of the uninsured.  Or the court might throw out the whole law on the grounds that its key provision is unconstitutional.  Or the court might uphold the whole law.

So what do you think will happen?

Filed Under: Government, Law, Medicine Tagged With: , , , 38 Comments

The constitutional right to a plea bargain

March 23, 2012 By 39 Comments

The Supreme Court  just rocked our criminal justice system:

A divided Supreme Court ruled for the first time Wednesday that the guarantee of effective legal representation applies to plea bargain agreements, significantly expanding the constitutional rights of defendants as they move through the criminal justice system.

In a pair of cases decided by 5 to 4 votes, the court opened a new avenue for defendants to challenge their sentences on grounds that their attorneys gave them faulty advice, lawyers on both sides of the issue said. The vast majority of criminal cases end with a guilty plea rather than a trial, and the ruling could affect thousands of cases.

“The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities . . . that must be met to render the adequate assistance of counsel that the Sixth Amendment requires,” Justice Anthony M. Kennedy wrote. He was joined by the court’s liberal justices, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

That is the case, the majority said, even if the defendant is unquestionably guilty or has received a fair trial after turning down a plea bargain.

Since more than nine in 10 cases involve a plea rather than trial, the decision will mean greater constitutional scrutiny of the negotiations central to almost every prosecution.

“It seems to me the court has created a new body of constitutional law,” said Connecticut Assistant State’s Attorney Michael J. Proto, who wrote a brief for 27 states urging the court not to extend the constitutional guarantee to plea bargains. “There are a lot of unanswered questions, and it is going to spawn a lot of litigation.”

Margaret Colgate Love, who helped write an American Bar Association brief that advocated for the court’s action, agreed about its impact.

“What makes these cases so important is the Supreme Court’s full-on recognition of the centrality of plea bargaining in the modern criminal justice system and its extension of constitutional discipline to the outcome of the plea process,” she said.

The decisions prompted a scathing rebuttal from Justice Antonin Scalia, delivered from the bench to signal his displeasure.

Scalia called the rulings “absurd” and said the majority had twisted the constitutional right to ensure defendants get a fair trial into one in which they have a chance “to escape a fair trial and get less punishment than they deserve.”

He added in a written dissent, “Today, however, the Supreme Court of the United States elevates plea bargaining from a necessary evil to a constitutional entitlement.”

The court’s conservatives — Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. — voted with Scalia.

The court was considering two cases in which all parties agreed that the lawyers involved had failed their clients.

In one, Galin Edward Frye’s attorney never told him of plea bargain offers from Missouri prosecutors on charges that he was driving with a revoked license. He later pleaded guilty and was sentenced to three years in prison. Prosecutors had offered Frye a couple of deals, one of which would have required 10 days in jail.

In the other, Anthony Cooper was charged under Michigan law with assault with intent to murder and other charges after shooting Kali Mundy in the buttock, hip and abdomen. She survived the attack.

Prosecutors offered Cooper a deal of 51 to 85 months in prison in exchange for a guilty plea. Cooper turned down that and other offers, allegedly because his attorney told him he could not be found guilty of the attempted murder charge, because he had shot Mundy below the waist.

Cooper went to trial, was convicted and was sentenced to 15 to 30 years in prison.

In the Frye case, the majority held that “when defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.”

In Cooper’s case, the court said the “defendant who goes to trial instead of taking a more favorable plea” may be harmed by receiving “either a conviction on more serious counts or the imposition of a more severe sentence.”

The majority rejected the view of Scalia, the states and the Obama administration that any ineffective advice from Cooper’s attorney was remedied by what Scalia called “the gold standard of American justice — a full-dress jury trial before 12 men and women tried and true.”

That view, wrote Kennedy, “ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials.”

On one level, this ruling would seem to protect the guilty by opening up litigation possibilities that could a lot of imprisoned criminals free.  But I think it could also harm defendants who are accused but are innocent.

If we aren’t going to have trials, I suppose the alternative needs to be brought under constitutional principles, but aren’t we supposed to have trials, which have all of the rigorous rules of evidence and formalized protection of the defendants’ rights?  In plea bargains, defendants are manipulated to plead guilty for the price of a lesser sentence.  But what if they aren’t guilty?  Justice Kennedy’s statement, above, is chilling.

 

Filed Under: Law Tagged With: , , 39 Comments

LCMS before the Supreme Court

January 11, 2012 By 142 Comments

The case of Hosanna-Tabor Evangelical Lutheran School vs. the EEOC is being argued before the Supreme Court.   J. Christian Adams sees the Justice Department’s case as being a major assault on religious liberty.  Here is his take:

Like so much from this Justice Department, Holder’s radical legal positions are at odds with long American traditions. This latest species of Holder’s radicalism is a frontal attack on faith communities.

In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. The U.S. Equal Employment Opportunity Commission, Holder’s DOJ argued that a church cannot fire an employee for acting contrary to church teaching, and contrary to an employment contract that incorporates that teaching. A teacher filed a complaint to the government about how the school handled her narcolepsy, which presumably would involve sleeping at work. The church school then fired the teacher because the church forbids lawsuits among believers based on 1 Corinthians 6:1-8. (“But instead, one brother takes another to court—and this in front of unbelievers!”)

This particular Lutheran church had well established dispute resolution mechanisms within the church, and based on church teaching. Instead, the teacher went to the government, contrary to church teaching.

Holder’s Justice Department believes that religious schools should not be able to enjoy a longstanding exemption to various employment laws which conflict with church teaching, or, the “ministerial exception.”

Assistant to the Solicitor General Leondra R. Kruger argued that the religious school could not fire the teacher for filing a complaint to the government even if church teaching forbids it.  At oral argument, Kruger advocated positions so extreme that even Justice Elena Kagan appeared to reject them.

It’s not hard to see where this slippery slope slides. What if a teacher in a Catholic school does something directly contrary to Catholic teaching? Or, consider this possibility offered by American Catholic:

“Then, too, what also about Catholic women using this principle to sue the Catholic Church in the United States because they are excluded from the priesthood? There’s absolutely no doubt that when it comes to ordination, the Catholic Church discriminates in favor of males. Should SCOTUS be able to tell the Catholic Church in the United States that it must redress the imbalance?

Yes…if, as an organization, the Catholic Church is bound by federal employment discrimination statutes.

No…if, as an organization, the U.S. Catholic Church is exempt from federal employment discrimination statutes.”

Far fetched? Not to Kruger.

At oral argument, she wouldn’t categorically preclude the possibility. Instead, she told the Court that the government interest isn’t currently sufficient to justify an assault on the male priesthood. Kruger said “the government does have a compelling and indeed overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct.” In other words, even if church doctrine prohibits you from settling disputes with the church through the government, the Obama administration cares not. Holder wants informants, or as the DOJ prefers to call them, complainants.

via Rule of Law » Holder’s Quiet Court Attack on Religious Freedom.

Here are some of the blow-by-blow arguments:

Hosanna-Tabor was represented by religious-law Professor Douglas Laycock. He began by saying that EEOC violated a bedrock constitutional principle that churches do not select government leaders and government does not select church leaders.

But he had problems during oral argument. One came from Justice Anthony Kennedy (who is likely the swing vote in this case), concerned that someone suffering retaliation from a church employer couldn’t present his or her claims in court.

Laycock rebutted that substantial church interests should bar civil trials, and Kennedy objected that you can’t know if substantial interests are at stake unless someone presents them in court.

Justice Antonin Scalia came to Laycock’s rescue, saying, “I think your point is that it’s none of the business of the government to decide what the substantial interest of a church is.”

The justices then rejected the argument of Leondra Kruger, Obama’s lawyer for the EEOC, who argued that there’s no ministerial exception in the Constitution, only the same rights that secular organizations possess to choose their own affiliations.

At this, Scalia exploded. “That’s extraordinary! There, black on white in the text of the Constitution, are special protections for religion. And you say it makes no difference?”

Kagan agreed with Scalia’s rejection of the argument that the First Amendment doesn’t protect churches from government ordering who they should hire as pastor or priest.

Justice Samuel Alito (a Catholic) made a critical point, asking if a Catholic priest married and the church removed him from ministry for violating Catholic doctrine, could the EEOC order him reinstated.

When Kruger answered no, Alito replied that EEOC was making a judgment that certain teachings — such as the Catholic belief that priests must be celibate — are more important than the Lutheran doctrine that ministers cannot sue the church.

Chief Justice John Roberts (also Catholic) agreed, saying, “You’re making a judgment about how important a particular religious belief is to a church.” Government cannot make such theological judgments.

I’ve had questions about this case, but the key element is that the teacher refused to go through the church dispute resolution process and went straight to a lawsuit, despite 1 Corinthians 6:1-8 and despite what her contract said.  I can see the religious liberty issues at stake, and they are important indeed.

UPDATE:  The Supreme Court ruled unanimously in favor of the Lutheran school!  The ruling was also broadly written so as to protect churches from other usurpations on the part of the government.  Read this analysis, which hails the ruling as a landmark decision  in the protection of religious liberty.

Filed Under: Church, Law Tagged With: , , , 142 Comments

Newt and the courts

December 22, 2011 By 60 Comments

What do you think of Newt Gingrich’s expressed plan, if he is elected president, to ignore court rulings that he disagrees with, to legislate judicial districts out of existence, to arrest judges in order to haul them before legislators to explain their rulings, to over-rule the Supreme Court with the agreement of the other two branches of government, and to attach riders to some laws that make them unreviewable by the courts?

What I think is that this would be a dangerous tampering with the constitutional division of powers.  In place of the rule of law (the conservative ideal), our government would be reduced to an unstable and arbitrary power struggle.  Yes, the judicial branch gets out of hand sometimes, but this is no solution.  Conservatives might like the idea of squelching liberal judges, but liberals can play the same game against conservative judges.  And for whatever legal precedents Gingrich thinks he has for all of this, throwing our whole system of government up in the air to try something else is NOT conservative and certainly NOT wise.

I’m open to persuasion, but this is turning me against Newt.

 

Gingrich, the anti-conservative – The Washington Post.

Filed Under: Government, Law, Politics Tagged With: , , 60 Comments

Supremes to consider Arizona’s immigration law

December 14, 2011 By 12 Comments

The Supreme Court will rule on whether or not the federal government can overrule Arizona’s strict immigration laws.  This is only one of some big cases the Supremes have taken on:

The Supreme Court on Monday intervened in another high-profile case testing the authority of the federal government, saying it will review Arizona’s crackdown on illegal immigrants, which inspired similar state efforts across the country.

Next month, the court will hear an emergency appeal from Texas that questions the role of federal courts in overseeing the deeply partisan issue of political re­districting. And in March, the court has scheduled 51 / 2 hours of oral arguments over the constitutionality of President Obama’s health-care overhaul.

All will be decided before the court breaks for its summer recess and as the 2012 presidential and congressional campaigns move into high gear.

via Supreme Court to hear challenge to Arizona’s immigration law – The Washington Post.

Filed Under: Government, Law Tagged With: , 12 Comments

Supremes to rule on Obamacare

November 15, 2011 By 20 Comments

The Supreme Court will hear challenges to Obamacare and will hand down a decision probably in July, which will be before the election:

The Supreme Court agreed on Monday to decide the fate of President Barack Obama’s healthcare law, with an election-year ruling due by July on the U.S. healthcare system’s biggest overhaul in nearly 50 years.

A Supreme Court spokeswoman said oral arguments would take place in March. There will be a total of 5-1/2 hours of argument. The court would be expected to rule during its current session, which lasts through June.

The decision had been widely expected since September, when the Obama administration asked the country’s highest court to uphold the centerpiece insurance provision and 26 of the 50 states separately asked that the entire law be struck down.

At the heart of the legal battle is whether the U.S. Congress overstepped its powers by requiring all Americans to buy health insurance by 2014 or pay a penalty, a provision known as the individual mandate.

Legal experts and policy analysts said the healthcare vote may be close on the nine-member court, with five conservatives and four liberals. It could come down to moderate conservative Justice Anthony Kennedy, who often casts the decisive vote.

The law, aiming to provide medical coverage to more than 30 million uninsured Americans, has wide ramifications for company costs and for the health sector, affecting health insurers, drugmakers, device companies and hospitals.

A decision by July would take the healthcare issue to the heart of a presidential election campaign that ends with a vote on Nov. 6 next year. Polls show Americans deeply divided over the overhaul, Obama’s signature domestic achievement.

via UPDATE 4-US top court to take on Obama healthcare law | Reuters.

Any predictions on what the ruling will be?  And, either way, what impact will a decision have on the presidential election?

Filed Under: Government, Law, Medicine Tagged With: , 20 Comments

Different takes on the LCMS school case

October 7, 2011 By 32 Comments

Here are two different framings of the Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC case that was just heard before the Supreme Court.  The first shows why so many religious groups are backing the LCMS school:
Washington Wants a Say Over Your Minister–Wall Street Journal

The second is slanted towards the rights of the disabled:

Supreme Court Weighs Rights Of Parochial-School Teachers : NPR.

Then there are many confessional Lutherans who disapprove of teachers being conflated with pastors and so oppose the congregation’s claim for a “ministerial exception.”

I suspect there are also LCMS teachers and others who support the notion of the teacher’s “call” and yet sympathize with her for being discriminated against because of her disability.

How do you think the court should rule, and how do you think it will rule?  What measures should the church body take to address these issues?

Filed Under: Church, Education, Law Tagged With: , , , 32 Comments

Religious groups may hire on basis of religion

October 4, 2011 By 30 Comments

The Supreme Court refused to hear an appeal from former employees of the Christian relief organization World Vision who lost their jobs because they no longer believed in the organization’s statement of faith.  This means that Christian organizations are not violating discrimination laws when they hire only Christians.

The U.S. Supreme Court let a lower court decision stand Monday that Federal Way-based nonprofit World Vision can hire only Christians to work in its U.S. operations.

The largest nonprofit in the state has the right to hire or dismiss employees based on their religious affiliation, the court ruled by allowing the lower court decision to stand.

The four-year court fight was initiated by three former World Vision employees who were fired because they didn’t agree with World Vision’s U.S. statement of faith, which World Vision says is a condition of employment.

In August, the 9th Circuit Court of Appeals ruled that World Vision could legally discriminate in hiring based on religious affiliation. The court, upholding a lower court ruling on a discrimination suit, said World Vision qualifies as a faith-based humanitarian organization and is exempt from the Civil Rights Act. The U.S. Supreme Court Monday affirmed that appeals court decision by refusing to hear the case.

via Supreme Court: World Vision can hire only Christians – Puget Sound Business Journal.

In a related issue, the Supreme Court will hear arguments on Wednesday on the case involving an LCMS school that fired a called teacher for her health problems.   At issue is  whether a church body can designate a called teacher a “minister,” even though she teaches non-religious subjects, and so invoke the  “ministerial exemption” from disability and other anti-discrimination laws.

Filed Under: Law, Religions Tagged With: , 30 Comments

Obamacare headed for the Supreme Court

September 27, 2011 By 24 Comments

It looks like the Supremes will rule on whether or not Obamacare is constitutional:

The Obama administration chose not to ask the 11th Circuit Court of Appeals to re-hear a pivotal health reform case Monday, signaling that it’s going to ask the Supreme Court to decide whether President Barack Obama’s health reform law is constitutional.

The move puts the Supreme Court in the difficult position of having to decide whether to take the highly politically charged case in the middle of the presidential election.

The Justice Department is expected to ask the court to overturn an August decision by a panel of three judges in the 11th Circuit Court of Appeals that found the law’s requirement to buy insurance is unconstitutional. The suit was brought by 26 states, the National Federation of Independent Business, and several individuals. . . .

The issue of the constitutionality of the individual mandate has been widely expected to be decided by the Supreme Court. The key question has been the timing. The Justice Department’s apparent decision to ask the Supreme Court to review the case greatly increases the chances the issue will be heard in the 2011-12 term, which begins Monday.

The Supreme Court now has several strong reasons to accept the case. The court rarely declines requests from the government to take a case, especially in situations in which a circuit court has struck down a piece of a high-profile law.

There is also a split between the appeals courts. The 6th Circuit Court of Appeals has upheld the mandate, the 11th Circuit has ruled it unconstitutional, and the 4th Circuit has ruled that a tax law prevents it from issuing a decision on the mandate until at least 2014.

“The odds are pretty significant the court will take the case now,” said Ron Pollack, executive director of Families USA, which has filed briefs in support of the law.

via Health reform lawsuit appears headed for Supreme Court – Jennifer Haberkorn – POLITICO.com.

Assuming the Supremes take the case, how do you think they will rule?

Filed Under: Law, Medicine Tagged With: , 24 Comments