Wednesday, June 27, 2012

No Doubt About it: Arizona Lost SB 1071 Supreme Fight

      Linda Greenhouse says it well:

      "The most useful way to read a Supreme Court decision, I figured out years ago, is to start with the dissents. That way, you can proceed to the majority opinion as a better informed reader, with the full range of possibilities in view: What arguments did the majority reject? Which did it respond to, and which did it not even bother to acknowledge? Most important, what was the disagreement really about?"

     "Taking that approach to the Arizona immigration decision the court issued on Monday, it is pellucidly clear from the dissenting opinions of Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. that Arizona lost big and that the decision amounted not to the split decision of early news reports but a major reaffirmation of federal authority. There has been considerable attention to Justice Scalia’s political rant – which he delivered from the bench as well as on paper — against President Obama’s immigration policies. It was a cringe-making screed for sure, even if not altogether surprising given that Justice Scalia had actually stooped to invoking the broccoli threat during the health care argument."

      "But aside from his self-indulgent posturing, what was most revealing about Justice Scalia’s dissenting opinion was what passed for actual legal analysis, his charge that Justice Anthony M. Kennedy’s majority opinion was so dismissive of Arizona’s effort to “protect its sovereignty” through the invalidated provisions of S.B. 1070, the law that was at issue, that “we should cease referring to it as a sovereign state.”

     "Pretty strong stuff. I turned to the majority opinion with mounting anticipation. What on earth had the court done? The first thing that jumped out at me was the name of Chief Justice John G. Roberts Jr. on Justice Kennedy’s opinion, along with the expected names of Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor. The chief justice was, apparently, in complete agreement with the majority as evidenced by his silence – the dog that didn’t bark, you might say. He felt no need to write separately to express even a shade of difference from the majority or a hint of sympathy with the dissenting views of his usual allies. Beyond Justice Scalia’s transparent dislike for the president, perhaps it was the chief justice’s apostasy that drove him around the bend."

      She then points out that Roberts has never been a nativist-'at least not yet.' Well he was George W. Bush's nominee. While I don't have many good things to say about President Bush he was not a nativist. Indeed he clearly was supportive of a more friendly immigration policy-he was also good on aid to Africa.

       She then argues that she thinks it quite likely that the Court will rule ACA constitutional based on the Court's ruling here. I, too, have that sense. Remember all we need is one out of 5 conservative justices. My guess is that while the SJC has rankled with their conservative  judgments notably Citizens United-which they again reaffirmed this week, and against the women in the big Walmart case-I suspect they won't want to push it on this one.

       My take is that the SJC is conservative-small c not-only- ideologically but temperamentally-and would rather not make laws from the bench. Yes they did do Bush-Gore but in that context arguably that was the more conservative choice-otherwise we could have faced a long drawn out legitimacy crisis.

      They know that Americans have never really forgiven that-I know I haven't-and that they are suspected as often being more ideological than judicial. If they strike down the mandate that would throw insurance companies into chaos-they probably would want to avoid that. But to overturn the whole law could start a real backlash against them.

      While they really struck down SB 1070 they left just enough so that supporters have a little something to hang their hats on. They did the thing that was least divisive. In this case letting the ACA stand is least divisive. After all the GOP will at least have it as an issue to flag in the campagin. If it's struck down this could be worse for the GOP. And many states even some Republican ones have already started setting up the exchanges. So if I'm right that they go conservative, ACA should stand.


  1. Mike,
    If you are right, I think ACA will be a 6-3 majority in favor. I think Kennedy will side with the majority and if Roberts concurs (silently), that makes it a 6-3 ruling. Look for Scalia's head to explode in the dissenting opinion. I'm sure he's tried to convince a majority that Congress has no authority under the commerce clause to mandate individuals purchase insurance. On the other hand, he hasn't met a corporate interest he's opposed to, so it is rather odd that he'd strike against this case. As you note, he does have a visceral dislike for the President. Perhaps that is the driving force to his recent lunacy.
    PS: Congratulation on your post at Miles Kimball's place. (I think you need to consider changing your blog name. It will help with credibility. lol.)

  2. Nanute-I disagree, I think my blog name adds to my credbility! LOL. In all seriouness it brings a lot of people in-in marketing terms it has a lot of punch.

    As to the court case today what Albert Gonzalez-who originally vetted Roberts seems to buttress my case that Roberts avoids judicial brinksmanship:

    ""I spent a great deal of time vetting Justice Roberts in making my recommendation to President [George W.] Bush that he appoint Chief Justice Roberts to the court," Gonzales said on CNN. "One of the traits I most admired about him, and this is very consistent in his judicial decision making, is to decide decisions on the most narrow grounds possible, to not get to constitutional issues you don't have to in order to dispose of a dispute....So in that respect, I expect Justice Roberts to follow that approach in deciding this case."

    Gonzalez puts what I was getting at well-Roberts is a conservative but he doesn't escalate but prefers to defuse earth shattering constitutional crises.

    Actually Gonzale thinks Roberts will punt:

    "During oral arguments in March, the justices appointed a lawyer independent from the case to argue that a law known as the Anti-Injunction Act bars the court from blocking collection of a tax, like the penalty mechanism the law would use to encourage Americans to get insurance. The Anti-Injunction Act says a tax must be collected before it can be challenged in court."

    ""That may mean, that he's going to be pushing the court to perhaps not make a decision on this case, wait until 2015, when the penalties on individual mandate come into play....Perhaps the chief justice is not going to go that way, but I wouldn't be surprised if he did," the former attorney general and one-time Texas Supreme Court justice told CNN."

    We'll know soon enough-maybe we already do I haven't checked the headlines yet!