Tag: conservative justices
Senate Judiciary Panel Will Probe Supreme Court ‘Shadow Docket’ Abuse

Senate Judiciary Panel Will Probe Supreme Court ‘Shadow Docket’ Abuse

Reprinted with permission from Alternet

The powerful chairman of the Senate Judiciary Committee is blasting the conservative justices on the U.S. Supreme Court in the wake of their 5-4 decision to allow Texas' unconstitutional abortion ban to become law after women's rights groups urged the Court to pause and examine the legislation.

Chairman Dick Durbin (D-IL) is announcing he will hold a hearing to examine how the Court handled the case, while accusing its right wing jurists of "abuse of the shadow docket," CBS News reports.

The New York Times calls the shadow docket a "process intended to help the court deal with emergency petitions and routine matters," but notes it "has grown into a backdoor way of making major policy decisions."

"The Supreme Court," Chairman Durbin said in a statement, "must operate with the highest regard for judicial integrity in order to earn the public's trust."

"This anti-choice law is a devastating blow to Americans' constitutional rights—and the court allowed it to see the light of day without public deliberation or transparency. At a time when public confidence in government institutions has greatly eroded, we must examine not just the constitutional impact of allowing the Texas law to take effect, but also the conservative court's abuse of the shadow docket."

Democrats Question Independence Of Trump Supreme Court Nominee

Democrats Question Independence Of Trump Supreme Court Nominee

WASHINGTON (Reuters) – Democratic U.S. senators on Monday sharpened a potential line of attack against Neil Gorsuch’s nomination to the Supreme Court by questioning whether he would be sufficiently independent as a justice in light of President Donald Trump’s vigorous use of unilateral presidential power including his travel ban.

Their comments came after Trump criticized James Robart, the U.S. district court judge who put on hold the Republican president’s Jan. 27 order temporarily barring entry into the United States of people from seven Muslim-majority nations and halting the U.S. refugee program. Trump called Robart a “so-called judge” who made a “ridiculous” decision.

Democrats have expressed worry that Gorsuch, nominated by Trump last week, could act as a rubber stamp for the Republican president’s policies on a nine-seat Supreme Court poised to revert to a conservative majority.

“It’s a serious concern with a president who attacks the judiciary and seems to not respect the rule of law and the Constitution that you have a really independent justice,” Senate Democratic Leader Chuck Schumer of New York, set to meet with Gorsuch on Tuesday, told Reuters.

Gorsuch, continuing a series of private meetings with senators ahead of his Judiciary Committee confirmation hearings, met on Monday with Senator Dianne Feinstein of California, the panel’s top Democrat, at her Senate office.

Afterward, she said Gorsuch is “clearly very smart, caring, and he’s well thought of in Colorado,” where he serves as a federal appeals court judge. But Feinstein said she will make up her mind after the hearing about whether or not to support his confirmation.

“What we would like to see is an independent judge, and the hearing will determine that,” Feinstein told Reuters.

Gorsuch must be confirmed by the Senate to the lifetime post on the high court.

“It’s incumbent upon Judge Gorsuch to make it clear to the American people that he does not believe in ‘so-called judges,’ that he thinks it’s imperative that the judiciary has to be respected as an independent one-third of our government,” said Vermont Senator Bernie Sanders, who unsuccessfully sought the Democratic presidential nomination last year.

“I would look forward to hearing him speak out on that issue,” Sanders added.

Conservative lawyers and Republican senators who are favorable toward Gorsuch cite his record of supporting limited federal powers and his skepticism about courts deferring too much to executive branch interpretations of the law when issuing regulations as signs he would be willing to stand up to Trump.

“I have zero concerns about his independence being compromised,” said Senator John Cornyn of Texas, a Republican who sits on the Judiciary Committee.

Mississippi Senator Roger Wicker, another Republican, said Gorsuch “has a trail of decisions and publications a mile long that suggest how talented he is, that are instructive as to how he would rule on any number of issues.”

With four liberals and four conservatives now on the court, Gorsuch’s confirmation would restore the conservative majority that had existed for decades until the death last year of Justice Antonin Scalia.

Gorsuch’s supporters point in particular to a recent case in which Gorsuch criticized a landmark high court ruling known as Chevron v. Natural Resources Defense Council. That 1984 ruling directed judges nationwide to defer to federal agencies’ interpretation of laws that may be ambiguous.

Gorsuch in a concurring opinion called that doctrine the “elephant in the room” that concentrates federal power “in a way that seems more than a little difficult to square with the Constitution.”

If Gorsuch is confirmed to serve on a court that would have five conservatives and four liberals, Democrats have expressed concern about setbacks for their positions on divisive issues such as abortion, gun control, environmental regulation, and transgender rights.

(Reporting by Lawrence Hurley; Additional reporting by David Morgan and Richard Cowan; Editing by Will Dunham)

IMAGE: U.S. Supreme Court nominee Judge Neil Gorsuch arrives for a meeting with Senator Ted Cruz (R-TX) on Capitol Hill in Washington, U.S., February 2, 2017. REUTERS/Yuri Gripas

Obamacare Vs. Scaliacare

Obamacare Vs. Scaliacare

WASHINGTON — Republican leaders in the House and Senate have made clear that they’ll deploy every weapon in the legislative arsenal to repeal the Affordable Care Act. They’ll try to chip away at the taxes that support it and abolish the mandates that make its insurance markets work.

They might even stand on their heads and stop breathing if that would do the trick.

It’s a shame they are approaching matters this way. Various provisions of the ACA have helped well over 100 million Americans, including about 20 million who gained coverage or got new insurance under the law.

In a rational republic, both parties might try to figure out how to improve the law. Why wreck it? But elections have consequences. So if Republicans invest a lot of energy in attempting to kill the thing — well, this is exactly what they told the voters they’d do.

It’s something else again if another part of the conservative power structure does a lot of the dirty work in undermining the law before Congress has to. I refer here to the hyper-activist conservative justices on our Supreme Court.

To the shock of many neutral legal analysts, four justices decided to take up an absurd legal challenge to the ACA even before a lower court can rehear the case and before there is a conflict that typically triggers the high court’s involvement.

At issue is one phrase in the law that, in the worst possible construction, is a drafting error. It declares that subsidies to help people buy insurance will be available to those who were enrolled “through an exchange established by the State under [section] 1311.”

Conservative legal beagles, ignoring every other word in the statute, claim that those words “by the State” mean that any state that chose not to establish a health insurance exchange deprives its citizens of the federal subsidies they’re entitled to under the ACA. Since 37 states are expected to rely this year on the federal exchange envisioned by the law rather than establish their own, a ruling of this sort could deprive millions of their subsidies — and make a mess of the law.

Now, let’s be clear: Not even the most conservative Supreme Court justices seemed to think this language was a problem before the conservative lawyers went to work.

In their dissent from the 2012 decision upholding the law, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito read the law exactly as its supporters do. They wrote: “Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State.” And they noted of the law’s structure: “That system of incentives collapses if the federal subsidies are invalidated.”

In a Washington Post op-ed article, five of the law’s lead architects, two senators and three House members, wrote: “None of us contemplated that the bill as enacted could be misconstrued to limit financial help only to people in states opting to directly run health insurance marketplaces.” Conservatives are supposed to care about “original intent.” Well, here it is.

There’s another conservative legal school called “textualism,” which, as the name suggests, involves paying close attention to the actual text of a statute. Abbe Gluck, a Yale Law School professor, has written a very helpful article on SCOTUSblog that not only points to the straightforward reading of the law that the conservative justices offered in that earlier dissent but also cites none other than Justice Scalia to guide us as to what textualism demands.

Textual interpretation, Scalia insisted, should be “holistic” and “contextual,” not “wooden” or “literal.” Courts, he said, should adopt the interpretation of a law that “does least violence to the text,” declaring that “there can be no justification for needlessly rendering provisions in conflict if they can be interpreted harmoniously.”

If Scalia wants to be true to his own principles, can he possibly side with a convoluted reading of the law that apparently never occurred to him before?

Here’s a hypothetical for you: First, the Supreme Court issues a ruling that installs a conservative president. Then, he appoints two conservative Supreme Court justices who then join with three of their colleagues to make mincemeat of the greatest achievement of a progressive president elected by a clear majority. If such a thing happened in any other country, would we still call it a democratic republic?

E.J. Dionne’s email address is ejdionne@washpost.com. Twitter: @EJDionne.

Photo: Shawn Calhoun via Flickr

Want more political news and analysis? Sign up for our daily email newsletter!