Supreme Court begins hearing on gay marriage

Today the Supreme Court will hear arguments on  California’s Proposition 8, in which the people of the state voted not to allow gay marriage.  On Wednesday, the court will hear a related case on whether the Defense of Marriage Act, in which Congress defined marriage as being between one man and one woman, is Constitutional.

I can envision the progressives on the court voting against the Defense of Marriage Act on equality grounds and the conservatives voting against it on federalism grounds, that Congress infringed on the right of states to make laws against marriage.  Then again, if the court throws out Proposition 8, that would prevent states from having the option to not have gay marriage.  That ruling would have consequences for every state in the union.

How do you think the court will rule on this?  (The decision won’t be announced for several months.) [Read more...]

Did the Supremes cripple Obamacare after all?

George Will reports on an article by Thomas A. Lambert, a University of Missouri law professor, who argues that the Supreme Court decision to approve Obamacare by defining its penalty for not having insurance as a “tax” may, in fact, ensure its failure:

[Chief Justice John] Roberts invoked what Lambert calls “a longstanding interpretive canon that calls for the court, if possible, to interpret statutes in a way that preserves their constitutionality.” Roberts did this by ruling that what Congress called a “penalty” for not obeying the mandate was really a tax on noncompliance.

This must, Lambert thinks, have momentous — and deleterious — implications for the functioning of the ACA. The problems arise from the interplay of two ACA provisions — “guaranteed issue” and “community rating.” [Read more...]

Supreme Court to rule on gay marriage

The Supreme Court has agreed to hear two cases that may settle the legal status of gay marriage in this country.  The court will rule on the constitutionality of the Defense of Marriage Act, which defines marriage in federal law as being between one man and one woman.  It will also rule on Proposition 8, the referendum in which California voters rejected gay marriage, only to have the vote stricken down by a federal court.

Supreme Court to hear same-sex marriage cases – The Washington Post.

What do you predict will happen?

Our legal system has long been tinkering with what marriage is supposed to be.  For example, the definition of marriage as a permanent, for-better-or-worse estate was changed by no-fault divorce laws, but I don’t recall anyone complaining much.

Copyright and re-sales from overseas

The Supreme Court is considering a case that requires the wisdom of Solomon:

Supap Kirtsaeng was studying in the United States when he struck a nerve in the publishing world by tapping into the market for cheaper college textbooks. Kirtsaeng re-sold copyrighted books that relatives first bought abroad.

His profitable venture provoked a copyright infringement lawsuit from publisher John Wiley & Sons. The case is being argued Monday at the high court.

Kirtsaeng used eBay to sell $900,000 worth of books published abroad by Wiley and others and made about $100,000 in profit. The international editions of the textbooks were essentially the same as the more costly American editions. A jury in New York awarded Wiley $600,000 after deciding Kirtsaeng sold copies of eight Wiley textbooks without permission.

The issue at the Supreme Court concerns what protection the holder of a copyright has after a product made outside the United States is sold for the first time. In this case, the issue is whether U.S. copyright protection applies to items that are made abroad, purchased abroad and then resold in the U.S. without the permission of the manufacturer. The high court split 4-4 when it tried to answer that question in a case in 2010 involving Costco and Swiss watch maker Omega. . . .

The court already has rejected copyright claims over U.S.-made items that were sold abroad and then brought back to the United States for re-sale.

The current case has attracted so much attention because it could affect many goods sold on eBay, Google and other Internet sites, and at Costco and other discount stores. The re-sale of merchandise that originates overseas often is called the gray market, and it has an annual value in the tens of billions of dollars.

Consumers benefit from this market because manufacturers commonly price items more cheaply abroad than in the United States.

The federal appeals court in New York sided with Wiley in this case.

EBay and Google say in court papers that the appellate ruling “threatens the increasingly important e-commerce sector of the economy.” Art museums fear that the ruling, if allowed to stand, would jeopardize their ability to exhibit art created outside the United States.

Conversely, the producers of copyrighted movies, music and other goods say that their businesses will be undercut by unauthorized sales if the court blesses Kirtsaeng’s actions. . . .

[Attorney Theodore]  Olson said there may be good reasons why manufacturers price the same goods differently for domestic and foreign sales, including lower incomes and standards of living in many foreign countries.

via Online, discount sellers back Thai student in Supreme Court copyright case – The Washington Post.

This would seem to be a corollary of the global economy.  Prices are lower in some lower-income markets.  But now it’s possible for consumers in high-price markets to use the internet to buy from the lower-cost countries.

Buying drugs from Canada would be another example, once considered by pharmacy companies as even less fair because the Canadian government subsidizes drugs in that country and makes them cheaper than the free market would dictate.

The advantage to consumers is obvious, but can a company stay in business that way?  Would it force companies to charge high-price market rates in poor countries, thus preventing citizens of poorer nations from buying what they need and would otherwise be able to buy?

And copyright adds another dimension.  Writers get nothing when their works are re-sold in used bookstores or online, which has always struck me, being an author, as wrong, though I can’t think of an alternative that wouldn’t also be wrong.

Big issues before the Supreme Court

The Supreme Court opens a new session today.  Lots of important cases are on the docket:

The first blockbuster case — a lawsuit challenging affirmative action in college admissions. The court will hear oral arguments in the case on Oct. 10, only the second week of the term. . . .

Another racially charged case could join the docket if justices take up a challenge to part of the Voting Rights Act. On the heels of an election with rampant charges of voter fraud and suppression, the court could weigh whether states with a history of discrimination should be required to get approval from Washington before changing their voting laws.

Walsh also said there’s a good chance the court will take up the Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing same-sex marriages. Two challenges to DOMA have been appealed to the high court, and a challenge to California’s Proposition 8 is also in the mix.

Legal experts say there’s no question the Supreme Court will rule on same-sex marriage in the near future; the only questions are which case or cases it will hear, and how quickly. . . .

Social issues aren’t the only big cases on the court’s horizon. The term will begin Monday with a closely watched case over whether U.S. judges can hear certain international cases.

The case was argued previously, but some justices seemed to want to rule on a broader question, so a re-hearing was scheduled. The last time that happened was the polarizing Citizens United case on campaign finance reform.

The justices will also consider police officers’ use of drug-sniffing dogs and possible invasions of privacy. A pair of cases set for argument in late October deal with canine units and the scope of the Constitution’s ban on illegal search and seizure.

via Controversial cases await justices – The Hill – covering Congress, Politics, Political Campaigns and Capitol Hill | TheHill.com.

This reminds us of another issue in the presidential race:  Who gets to appoint Supreme Court justices?  At least a couple are in their 80s, and those life terms can have a big impact.    Any predictions as to how any of these cases will be decided?  Can there be any doubt that the Supreme Court, despite or perhaps even because of its conservative bloc, will rule in favor of gay marriage?

Institutionalism vs. Constitutionalism

As I keep saying, there are different kinds of conservatism.  Michael Gerson makes that point in his discussion of Supreme Court Justice John Roberts’ ruling on Obamacare:

His health-care ruling did expose a division between two varieties of judicial conservatism — institutionalism and constitutionalism — that can lead to very different outcomes.

Roberts has emerged as the great institutionalist, concerned primarily about the place of the Supreme Court in American political life. In this view, the court maintains its power by exercising it sparingly — deferring whenever possible to the legislative branch. Institutionalism embodies a temperamental conservatism — a commitment to continuity, humility and prudence.

The main constitutionalists on the court are Antonin Scalia and Clarence Thomas, focused on the rigorous application of the words of the founding document. In this view, the meaning of the text is primary, whatever the political consequences of applying it. Constitutionalism is often accompanied by an understandable complaint: If the conservative response following every period of liberal activism is humility and continuity, then the ideological ratchet turns only leftward.

My natural sympathies are with institutionalism as an antidote to judicial arrogance. Donning a black robe does not assume or create a superior knowledge of public policy. Roberts’s desire to defer, particularly on a divisive issue in the middle of a presidential election, is the right tendency, the correct Burkean instinct.

But judges are also not hired as political philosophers, Burkean or otherwise. Their legitimacy comes from a credible application of the law. And the outcome of the health care case came down to one point of law: Roberts’s interpretation of the statute as a constitutional tax rather than an unconstitutional mandate. In his ruling, Roberts admits this view is hardly the most obvious one: “The question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.”

The problem is that Roberts’s interpretation is not fairly, or even remotely, possible. If the law had been written in the Roberts version — as a regressive federal tax on the uninsured — there is no chance it would have passed Congress. More to the point, the law that Roberts describes would have covered a different number of the uninsured. Academic studies indicate that people respond differently to tax penalties than they do the legal mandates. “When the imperative to buy insurance,” notes Yuval Levin, “is instead presented as a choice between two options, more people will likely choose the cheaper option (which, for almost everyone, will be paying the tax rather than buying the coverage).”

Why did Roberts not account for this policy distinction? The most natural interpretation is that he didn’t know anything about it. Which is precisely the point. Roberts is not a health policy expert. His clever reinterpretation of the health law would actually change its outcome. This is not an alternate reading but an alternate universe.

Even in a short time, Roberts’s decision has not worn well. What initially seemed wise now smacks of mere cleverness — less a judge’s prudence than a lawyer’s trick. To find the health-care law constitutional, Roberts reimagined it. It was outcome-based jurisprudence, even if the intended outcome was institutional harmony. It was an act of judicial arrogance, even in the cause of judicial deference. And it raises deeper concerns. Unmoored from a reasonable interpretation of the law, institutionalism easily becomes the creed of the philosopher-king — hovering above the balance of powers, tinkering benevolently here and there, instead of living within the constraints of the system.

via Michael Gerson: John Roberts’s alternate universe – The Washington Post.

Lots of good lines here:  Outcome-based jurisprudence.  Obamacare as a tax on the uninsured.  Fairly-possible interpretations.

I don’t know that a Burkean kind of conservative–one who is protective of traditions, institutions, and culture–would really defer to such a recent decision that has not yet become a tradition.

Still, what do you think of this philosophical dichotomy?  Where else do you see it?


CLOSE | X

HIDE | X