The New Yorker examines the list of potential nominees to the U.S. Supreme Court. Their includes a nominee to the First Circuit Court of Appeals: David Barron.
David Barron, age forty-six, nominated to the First Circuit. Barron served as acting assistant attorney general during the first two years of the Obama Administration and is now a professor at Harvard Law School. His clerkships were with Stephen Reinhardt (a liberal favorite on the Ninth Circuit) and Justice John Paul Stevens; he has many fans in the White House, though the appointment of a white male would offer few political benefits. Barron’s nomination to the First Circuit has been approved by the Judiciary Committee on a party-line vote, and he has apparently been promised a vote in the full Senate before the mid-term elections. The invocation of the nuclear option—confirmation via a simple majority rather than the three-fifths vote formerly required to overcome a filibuster—should guarantee his appointment, which is obligatory if he is to be a Supreme Court nominee down the line.
Sen. Sheldon Whitehouse (D-RI) has also been mentioned as a potential nominee to the highest Court in the land.
The Washington Post has an interesting article about an Idaho shooter who wants to claim an insanity defense in a state – Idaho – that is 1 of 4 states that does not recognize the defense. Now, he is appealing to the SCOTUS and asking for his right to make an insanity defense be deemed a constitutional right:
Delling’s lawyers are now at the Supreme Court, asking the justices to rule that the Constitution mandates that such a defense be available for those who, because of mental illness, are not responsible for the mayhem they create.
“For centuries, the moral integrity of the criminal law has depended, in part, on the insanity defense,” Stanford law professor Jeffrey L. Fisher wrote in a petition on Delling’s behalf.
Punishment is traditionally justified on the basis of an individual consciously choosing evil over good, Fisher wrote. “Laws such as Idaho’s abandon that basic tenet,” he said.
Fisher contends that Idaho’s law violates the Constitution’s guarantee of due process of law, as well as the Eighth Amendment’s prohibition of cruel and unusual punishment.
All states and the federal government once allowed the insanity defense. But that changed with the public outrage over John W. Hinckley Jr.’s acquittal for reasons of insanity in his assassination attempt on President Ronald Reagan in 1981.
With a vote of 5-4, the Supreme Court of the United States has upheld the Health Care Reform legislation with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read. Read the opinion here.
While Justice Anthony Kennedy was thought to be the swing vote, he ultimately dissented and Chief Justice John Roberts’ vote ultimately saved the historic legislation.
Here is a summary:
- Justices Kennedy, Scalia, Alito and Thomas voted that the entire Act was unconstitutional.
- Justices Ginsburg, Kagan, Sotomayor and Breyer voted to uphold the Act as constitutional.
- Chief Justice Roberts forged a middle ground stating that the Act was constitutional under Congress’ power to tax, but unconstitutional under the Commerce Clause. However, the Act is ultimately constitutional because of the former.
Regarding the Medicaid issue, CJ Roberts notes that “[n]othing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.”
Having upheld the individual mandate, the Court does not reach severability issues.
The SCOTUSblog summarizes as follows:
The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.
Highly regarded conservative Judge Richard A. Posner, of the 7th Circuit Court of Appeals, has taken Supreme Court Justice Antonin Scalia to task for his outspoken dissent in the Arizona immigration decision Monday – especially his singling out of President Obama’s suspension of deportation of young people. Here is an except from Posner’s Slate article regarding Scalia.
“Justice Scalia says that it ‘boggles the mind’ to think that Arizona ” could not enforce parts of federal immigration law “that the president declines to enforce,” Posner wrote, adding that Scalia also said the federal government was “‘refus[ing] to enforce the nation’s immigration laws.’”
“These are fighting words,” Posner wrote, while “the nation is in the midst of a hard-fought presidential campaign” and “illegal immigration is a campaign issue.”
“The program that appalls Justice Scalia was announced almost two months after the oral argument in the Arizona case,” Posner notes. “It seems rather a belated development to figure in an opinion in that case.”
Rhode Island Attorney General Peter Kilmartin commented on the Supreme Court decision reversing, without hearing arguments or accepting briefs, a Montana Supreme Court ruling that affirmed the state’s right to impose its own ban on independent spending by corporations.
“Today’s decision is a clear indication that the Supreme Court will not reconsider its Citizens United ruling. Citizens United has resulted in a torrent of undisclosed corporate and special interest money into the electoral process due to the flourishing of corporate spending. This presidential election cycle has seen hundreds of millions of dollars thrown into the race on both sides to sway the American electorate, with very little oversight or accountability. It is undermining the fairness of elections and distorting the electoral process.
“Therefore, the only way to address the damage caused by that decision is to amend the United States Constitution. I recognize that amending the Constitution is not an easy task and should not be done lightly. It should only be amended when it is in the absolute best interest of the nation and its citizens. Undoing the damage of Citizens United is in the best interest of our country, and is the only way to put the electoral process back in the hands of the people, not special interests.”
In April, Kilmartin called on Congress in a letter to amend the U.S. Constitution to reverse the U.S. Supreme Court decision in Citizens United v. Federal Election Commission. In May, Kilmartin and 22 attorneys general filed an amicus brief asking the Supreme Court to reconsider the 2010 Citizens United decision, citing that unrestricted independent campaign expenditures may distort political races, promote corruption or require corporate shareholders to fund political communication that they oppose. The states argued that all state laws governing corporate campaign expenditures seek to ensure that such expenditures did not undermine principles of accountability and integrity in state and local elections, while protecting residents’ rights to participate in the electoral process.
Roger Williams University School of Law will be hosting their annual Thurgood Marshall Memorial Lecture on April 3 and have a great speaker lined up.
Harvard Law School Dean and Professor Martha Minnow will lecture on “Pursuing Justice in Multicultural Societies: Gender, Religion, Conflict and Compromise.”
The event is Tuesday, April 3, 2012 from 4:00 – 5:00 p.m. in the Roger Williams University School of Law Appellate Courtroom 283 located at Ten Metacom Avenue, Bristol, Rhode Island. There will be a reception immediately following lecture. Space is limited. Reservations are required. Please contact the Office of Alumni, Programs & Events at firstname.lastname@example.org or 401-254-4659.
The School of Law presents its fifth lecture in this series, which honors the memory of Thurgood Marshall, a key architect of the legal strategy that convinced the Supreme Court to declare unconstitutional the doctrine of “separate but equal,” which had allowed racial segregation in public education and many other aspects of American life. Thurgood Marshall later served with distinction and as a protector of civil rights as Solicitor General of the United States and as the first African-American Justice on the United States Supreme Court.
The event is sponsored by Hinckley Allen Snyder LLP.
Via Chris Cillizza at the Fix:
1. With a sedate day one of Elena Kagan’s Supreme Court confirmation behind us, today is expected to be a bit more lively as the question and answer phase begins.Here’s six Senators on the Judiciary Committee to keep an eye on during today’s proceedings:
* Orrin Hatch: The Utah Republican voted to confirm Kagan as Solicitor General in 2009. But, he has also watched his Beehive State colleague Bob Bennett swept out of office last month by conservatives unhappy with some votes they deemed less than acceptable. With Rep. Jason Chaffetz (R) waiting in the wings to challenge Hatch in 2012, can the incumbent afford to be anything but tough on Kagan and then vote against her? And, if he doesn’t, might that be an early indication that a retirement is in the offing?
* Lindsey Graham: Graham is the Republican Democrats have come to love — viewing him as fair-minded and not overly partisan. But Graham is a very savvy politician and understands that he can only venture so far from his conservative base without getting into real trouble. Having already voted to confirm Sonia Sotomayor to the Court, will Graham poke his base in the eye again with a “yes” vote on Kagan? He seemed to be undecided during his opening statement on Monday, telling the nominee that her hearing would be “probative and meaningful”.
* Arlen Specter: Long a titan of the Judiciary Committee as a Republican, Specter, was a, well, specter, of his former self during the Sotomayor confirmation hearings as he used the event to prove to Democrats that he was one of them after switching parties earlier in year. It didn’t work as he lost his primary fight to Rep. Joe Sestak. Now that Specter is unencumbered by electoral concerns and calculations for the first time in decades, how will he treat Kagan?
* Dick Durbin/Chuck Schumer: Durbin, of Illinois, and Schumer, of New York, are competing in a behind-the-scenes battle to become the next Democratic leader of the Senate if Harry Reid (Nev.) loses his re-election fight this fall. Rarely will you get a better chance to see their differing approaches and rate their overall effectiveness than today as the two men will question the nominee within 30 minutes (or so) of one another. You can bet their colleagues will be watching to see which one performs better as the caucus weighs its options if Reid comes up short.
* Al Franken: The Sotomayor hearings amounted to a public debut of sorts for the comedian turned Minnesota Democratic Senator. And, while Franken did occasionally crack wise, he was generally a low-profile presence on the committee. With another year of Senate service under his belt, does Franken take a different approach to this confirmation? With liberals expressing some concerns about Kagan’s past policy positions (or, more accurately, her lack of past policy positions) will Franken take the mantle as liberal champion on the committee and try to draw her out?