Supreme Court grants cert to Affordable Care Act
November 15, 2011 12:05 PM   Subscribe

Yesterday, the Supreme court granted certiorari to several of the challenges to the constitutionality of the Affordable Care Act. Here's a great roundup of several news stories. I like the NPR story for a quick summary of the issues. The Court will hear a total of 5.5 hours of oral argument, and a decision is expected by the end of the current term, in June.
posted by insectosaurus (77 comments total) 9 users marked this as a favorite

 
Meanwhile, Scalia and Thomas have dinner with the challengers...
posted by WidgetAlley at 12:08 PM on November 15, 2011 [6 favorites]


Remember Justices, don't work too hard. We all need time to relax too.
posted by furiousxgeorge at 12:08 PM on November 15, 2011


*shakes fist*
posted by furiousxgeorge at 12:08 PM on November 15, 2011 [1 favorite]


Meanwhile, Pfizer and the firm that employs the lawyer who will try to get the law thrown out threw a dinner recently for Scalia and Thomas
posted by nushustu at 12:09 PM on November 15, 2011 [1 favorite]


Sigh.
posted by nushustu at 12:09 PM on November 15, 2011 [1 favorite]


*cowers*

In all seriousness though, can someone please explain what the logical rationale is for: In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal judges. (from the article)

Is that true? I'm totally ignorant of this sort of thing, so there very well may be a good reason for it... what would that reason be?
posted by WidgetAlley at 12:11 PM on November 15, 2011 [1 favorite]


> And it’s nothing that runs afoul of ethics rules. In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal judges.

Anyone know why? As a Canadian, I find this bizarre.
posted by Listener at 12:12 PM on November 15, 2011


I am frakkin' psychic y'all. Go on, ask me anything! I predict that the Supreme Court will not in fact make any kind of useful or clarifying decision on this!
posted by WidgetAlley at 12:13 PM on November 15, 2011 [1 favorite]


Is that true? I'm totally ignorant of this sort of thing, so there very well may be a good reason for it... what would that reason be?

I YAM THE LAW.
posted by longdaysjourney at 12:15 PM on November 15, 2011 [1 favorite]


Isn't there something in ethics guidelines about "Avoiding even the appearance of impropriety"?
posted by bitmage at 12:17 PM on November 15, 2011 [1 favorite]


What are the Vegas odds on Thomas asking a question and breaking his silence?
posted by Mister Fabulous at 12:17 PM on November 15, 2011 [1 favorite]


WidgetAlley, I'm not an expert, but my understanding is that they're supposed to self-police and recuse themselves when necessary. Since SCOTUS justices are at the top of the top, there isn't anyone above them to decide when they have done something unethical. It would undermine the system if someone could second-guess their decisions - even their decisions about when to recuse themselves.
posted by insectosaurus at 12:17 PM on November 15, 2011 [2 favorites]


On the other hand, whatever the court rules, there is THIS
posted by Postroad at 12:19 PM on November 15, 2011


they can be impeached and convicted however. But, given the current crop of congress that is as likely as my ass producing golden eggs.
posted by edgeways at 12:20 PM on November 15, 2011 [4 favorites]


For those that are curious, I listened to this NPR story a while ago about the ethics of Supreme Court Justices - the rules about recusal and such. It's really interesting and I think it answers a lot of the questions being asked in this thread.
posted by insectosaurus at 12:20 PM on November 15, 2011 [5 favorites]


In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal judges.

That's fascinating. Anyone know how far this extends? Could Antonin Scalia, for example, accept a giant sack with a dollar sign on it from a defendant, handing her in return a fish-themed Valentine reading YOU'RE OFF THE 'HOOK,' on national television?
posted by theodolite at 12:20 PM on November 15, 2011 [27 favorites]


I predict that the Supreme Court will not in fact make any kind of useful or clarifying decision on this!

It kind of has to, if only on the issue before it. I don't think anyone's expecting this to wind up being a landmark Commerce Clause case--though I don't think anyone would be surprised if it did, either--but if nothing else, the Court must decide whether or not to throw out this legislation, in whole or in part. Any opinion it issues will do one or the other, so there's really no way around it.

The question isn't that as much as just how far the Court is going to go in its decision. It could decide to rule very narrowly, saying "Look, we don't know where the end of the Commerce Clause is, but this particular law [is/isn't] too far." Which would basically just dispose of the instant controversy without providing much guidance going forward.

On the other hand, the Court could say "Look, we've had it with this Commerce Clause nonsense, and the boundary is now [wherever]." That'd be somewhat unexpected, as the Court tends not to issue rulings like that where at all possible to avoid doing so, but not entirely unexpected, as the past few decades have seen an increase of interest in the limits of the Commerce Clause, so the Court might just decide to deal with that here.

A broad ruling could really go either way, too. The Court could say "Congress, you've been getting entirely too uppity with all this power-grab nonsense. The New Deal Cases may be right, but this is just too much. From now on, you're limited to [this stuff.]"* Or the Court could say "Alexander Hamilton was right all along, and the Constitution really has in mind an active, vigorous, omnipresent federal government. So, yeah, go nuts."

Again, I think most observers are expecting a narrow ruling, but the jury's really out (*cough*) on how it will go.

*I don't think anyone thinks it remotely plausible that there could be a return to pre-New Deal jurisprudence, as much as Thomas might like there to be. Not even Scalia is on board with that.
posted by valkyryn at 12:21 PM on November 15, 2011 [1 favorite]


That's fascinating. Anyone know how far this extends? Could Antonin Scalia, for example, accept a giant sack with a dollar sign on it from a defendant, handing her in return a fish-themed Valentine reading YOU'RE OFF THE 'HOOK,' on national television?

Yes.

Or, more specifically: The thing that would stop him is that he could be impeached and removed by Congress.

The whole "Exempt from the Code of Conduct" thing is just because they are, by definition, the folks who sit at the top of the Justice Department, at the very head of one of the three (theoretically) co-equal branches of government. It's like how the President isn't functionally bound by an executive order because he's the one who promulgates them in the first place, but that doesn't mean he can do anything he wants.
posted by Tomorrowful at 12:23 PM on November 15, 2011 [2 favorites]


I think it'd be great if both Thomas and Kagan recused themselves from this case. Thomas's wife made a lot of money (undisclosed on Thomas' financial forms) for, among other things, opposing the health care bill.

Meanwhile, Elena Kagan wrote emails cheering the passage of the bill. While Solicitor General she sent an email to Lawrence Tribe saying "I hear they have the votes Larry!! Simply amazing."

Kagan and Thomas ought to meet up and decide for the good of the Court that they'll sit this one out. It's politically safe (their votes would almost certainly cancel each others) and it would be good for the institution long-term.
posted by BobbyVan at 12:26 PM on November 15, 2011 [5 favorites]


That's fascinating. Anyone know how far this extends? Could Antonin Scalia, for example, accept a giant sack with a dollar sign on it from a defendant, handing her in return a fish-themed Valentine reading YOU'RE OFF THE 'HOOK,' on national television?

In that case, they could face impeachment by congress. But yeah, since the court allowed to dictate how it does its business, there really isn't much to be done about it.

Valkyryn - I was reading something earlier that one of the issues the court might decide on is whether it can even decide yet. The gist - as I understood it - was that since this was a tax issue, and noone has actually been taxed yet, nobody actually has standing to challenge the tax.

How does that fit with your analysis of potential outcomes ?
posted by Pogo_Fuzzybutt at 12:26 PM on November 15, 2011


In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal judges.

That's fascinating. Anyone know how far this extends? Could Antonin Scalia, for example, accept a giant sack with a dollar sign on it from a defendant, handing her in return a fish-themed Valentine reading YOU'RE OFF THE 'HOOK,' on national television?


The reason Supreme Court justices are exempt from the Code of Conduct is because they kind of have to be. The Code is promulgated and enforced by the Court itself. It's not an act of Congress. It couldn't be, actually, because Congress doesn't have the ability under the constitution to regulate judicial behavior at all. The Supreme Court has the ability to regulate the behavior of lower federal courts, but asking it to regulate itself is... basically what we've got going now. But there really isn't anyone who can require them to abide by the strictures of the Code, so there's no real point having that requirement.

But if Congress is really pissed at a Supreme Court justice, impeachment is an option. It works much the same way as it does when Congress tries to remove the President: a vote for impeachment by majority in the House, followed by a trial in the Senate, prosecuted by the House "managers" (selected by the House), and conviction upon a two-thirds vote in the Senate.

Exactly one Supreme Court justice has ever been impeached: Samuel Chase, in 1805, and he was acquitted.
posted by valkyryn at 12:28 PM on November 15, 2011 [5 favorites]


Or, more specifically: The thing that would stop him is that he could be impeached and removed by Congress.

But, and I realize I'm spewing liberal crazy-talk here, if the same interests (read: $$$) that influence Congress are also influencing the Supreme Court, Congress has no interest in impeaching them for anything that wouldn't completely remove the last shreds of their legitimacy in even the I'm-not-paying-attention section of the public's view, right? So the Supreme Court can, functionally, do whatever the hell it wants as long as it's not jumping up and down naked on its podium while doing it.

That's crazy. I think I wasn't paying attention in that part of civics class, apparently.
posted by WidgetAlley at 12:29 PM on November 15, 2011


they are, by definition, the folks who sit at the top of the Justice Department

I know this may seem like picking nits (in cases like this I think it useful to make sure we use precise terminology), but they're the top of the Judicial Branch of the US government. The head of the Justice Department is the Attorney General.
posted by chimaera at 12:29 PM on November 15, 2011 [2 favorites]


In all seriousness though, can someone please explain what the logical rationale is for: In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal judges. (from the article) Is that true? I'm totally ignorant of this sort of thing, so there very well may be a good reason for it... what would that reason be?

Judges are generally considered to be capable of evaluating their own objectivity. This is why, for example, challenges of Vaughn Walker's objectivity in California's proposition 8 litigation went nowhere: that Walker is gay and theoretically an interested party is not considered an automatic source of bias.

I have a hunch that you'll see Scalia and Thomas end up on opposite sides of this issue. Scalia wrote the opinion on Gonzalez v. Raich, IIRC, which supports the very broad reach of the commerce clause. I wouldn't be surprised if he ends up supporting the mandate whether or not he actually likes it.
posted by anigbrowl at 12:32 PM on November 15, 2011 [1 favorite]


I was reading something earlier that one of the issues the court might decide on is whether it can even decide yet. The gist - as I understood it - was that since this was a tax issue, and noone has actually been taxed yet, nobody actually has standing to challenge the tax.

How does that fit with your analysis of potential outcomes ?


Not much. You're pointing at the issue of ripeness, i.e. whether there is an actual case or controversy which is sufficiently developed to justify judicial intervention.

While it's true that no tax has been levied as of yet, the ripeness argument doesn't strike me as having that much weight. None of the lower courts seemed to think it was a big deal--or they thought the issue was ripe--and that makes sense. The law has been passed. While it isn't technically in force yet, arguing that Congress might change the law before it comes into force isn't really a good basis for saying that the issue isn't ripe. Congress can always change the law, but the judiciary operates as if the laws on the books now are going to stay the way they are, because otherwise nothing would ever be ripe.
posted by valkyryn at 12:32 PM on November 15, 2011


So the Supreme Court can, functionally, do whatever the hell it wants as long as it's not jumping up and down naked on its podium while doing it.

Basically.

But you end up in a "who watches the watchers" scenario that is turtles all the way down. At some point, there is a final authority and they are functionally above the rules because there is no way to hold them accountable anyway (except in this case - impeachment).
posted by Pogo_Fuzzybutt at 12:35 PM on November 15, 2011


Pogo, I don't think there is a standing (who can bring the case) issue here, but one of the lower courts did decline to hear the merits due to ripeness (when the case can be brought).

It is possible that the Court will decline to decide the merits of the case because they will say that it is not "ripe" since the individual-healthcare-mandate has not gone into effect yet. I don't think that's a very likely outcome - but it is a possibility.
posted by insectosaurus at 12:35 PM on November 15, 2011


Valkyryn, check out Justice Kavanaugh's dissent (.pdf) in which he makes a strong case for not deciding on the mandate's constitutionality until after someone's been taxed (or "penalized") for not purchasing insurance.
posted by BobbyVan at 12:37 PM on November 15, 2011



Not much. You're pointing at the issue of ripeness, i.e. whether there is an actual case or controversy which is sufficiently developed to justify judicial intervention.


I found it.
The court asked the parties to brief and argue for an hour whether the lawsuit brought by the states challenging the insurance mandate is barred by the 19th century Anti-Injunction Act. That’s a law that precludes claimants from asking for a refund on a tax until the tax has been collected and paid. If the court were to determine that this law applies in this case, then the courts wouldn't have jurisdiction to even consider the challenges until 2015, when the tax-penalty provision goes into effect. This argument was advanced in the 4th Circuit decision upholding the ACA and made with even more force by Judge Brett Kavanaugh in the District of Columbia Circuit Court of Appeals when it upheld the ACA last week. In a 65-page dissent, Kavanaugh writes: “For judges, there is a natural and understandable inclination to decide these weighty and historic constitutional questions. But in my respectful judgment, deciding the constitutional issues in this case at this time would contravene … the Anti- Injunction Act.”
Not saying you're wrong, just trying to understand better.
posted by Pogo_Fuzzybutt at 12:38 PM on November 15, 2011


Meanwhile, Elena Kagan wrote emails cheering the passage of the bill. While Solicitor General she sent an email to Lawrence Tribe saying "I hear they have the votes Larry!! Simply amazing."

I fail to see how this amounts to a conflict of interest. We know from most judges' personal and political backgrounds which policy outcomes they are likely to favor and which they are likely to disfavor. Conflict of interest would arise not when one outcome or another is likely to be regarded by a justice as the happier political outcome but where the justice has some extra-judicial motive to rule one way or the other. If Kagan had invested heavily in health insurance stocks, for example, that would represent a potential conflict of interest. The mere fact that she supports the aims of the Affordable Care Act does not.

If this were not the case, all Catholics would have to recuse themselves from hearing all cases related to abortion, for example. Most Democratic appointees would have to recuse themselves from hearing cases related to labor law etc. etc.

The case with Thomas is a little more complex because his wife did actually benefit financially from her opposition to the Health Care law. Nonetheless, I think we get into very, very slippery territory if we start to extend conflict of interest to the political actions of spouses. This is one of those things where we're very likely to see "blatant conflict of interest" when it so happens that we're on the opposing side and see no hint of a conflict when it so happens that we're on the same side.
posted by yoink at 12:44 PM on November 15, 2011 [10 favorites]


Could Antonin Scalia, for example, accept a giant sack with a dollar sign on it from a defendant, handing her in return a fish-themed Valentine reading YOU'RE OFF THE 'HOOK,' on national television?

Of course not.

Television cameras aren't allowed in the Supreme Court.
posted by Kadin2048 at 12:46 PM on November 15, 2011 [15 favorites]


I found it.

Okay, that's thornier than I'd previously thought. I took a look at Kavanaugh's dissent, and there's some good stuff in there.

As a first order matter though, the Court has to decide if what's going on here really is a tax. One of the main controversies was whether the penalty is just a tax, which is generally permissible regardless of the reason, or a coercive penalty, for which there are a lot more restrictions. For political reasons, it's bad for the Democrats if they wound up imposing a new tax, and they argued stridently that it wasn't. Now, the Obama administration is arguing that yes, it is a tax. Courts have come out on different sides on whether it is or it isn't.

But it does present the interesting possibility of a really narrow ruling, i.e. "Too soon to tell, try again in 2015." By which time any number of different things could happen. As, contrary to what seems to be popular belief around here, the vast majority of Supreme Court rulings in the past few decades have been remarkably narrow, procedurally-based decisions, this wouldn't actually surprise me all that much.
posted by valkyryn at 12:49 PM on November 15, 2011


But it does present the interesting possibility of a really narrow ruling, i.e. "Too soon to tell, try again in 2015."

Ahh, the Magic 8-Ball Defense. Classic!
posted by Mister Fabulous at 12:52 PM on November 15, 2011 [1 favorite]


What are the Vegas odds on Thomas asking a question and breaking his silence?

Once upon a time, there was a boy named Clarence. He was born very poor, and did not like to remember this. So when he grew up to become wealthy and powerful and respected, he decided to forget that he was ever ever poor, or ever had the concerns of poor folks.

He was very smart, and learned his letters, and went to the finest schools, and could speak English with clarity and precision. He could explain the law, and could ask questions in court that were intricate and careful in their construction.

Yet, one day, in the most important court in all the land, where he was a judge, the words all came out wrong. They didn't make sense. They sounded familiar, but it wasn't proper English. It wasn't English at all, he realized, but Gullah, the words his mother taught him, the tongue of his earliest memories. The questions were intricate and careful in their construction, spoken with clarity and precision... but he could not understand them, because they were mindful of the concerns of the poor, a language not spoken in the court.

So now Clarence is quiet, lest he remember. He will not ask another question, so the proper and fine people won't think him foolish or wicked for speaking with the voice of the ordinary folks he was born to.
posted by Slap*Happy at 12:58 PM on November 15, 2011 [9 favorites]


I fail to see how this amounts to a conflict of interest.

Who said anything about "conflict of interest"? The law (which admittedly cannot be enforced against SCOTUS) states that:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
It seems to me that Kagan's impartiality is certainly questionable after reading her email to Lawrence Tribe (linked above). It's also manifestly clear that she "expressed an opinion concerning the merits of the particular case in controversy" by applauding its impending passage by the Congress.

Your point about Catholic judges ruling on abortions and Democratic judges ruling on labor regulations misses the mark, I think. JFK long ago drew the distinction between public and private when it comes to Catholics and politics. And judges are duty bound to ignore their policy preferences and pay their allegiances to the Constitution when making their rulings.

In Kagan's case, we aren't just talking about personal policy preferences -- this is the Solicitor General of the United States, on her official email account, exclaiming her joy at an Act of Congress which is now to be litigated before her. I think it's reasonable for me to question her impartiality here.
posted by BobbyVan at 12:58 PM on November 15, 2011 [2 favorites]


I've heard speculation that a broad SCOTUS decision against ACA, declaring the mandate provision unconstitutional, would have a ripple-effect potentially killing other similar mandates like Social Security and Medicare. Can anyone clarify this for me?
posted by Thorzdad at 1:00 PM on November 15, 2011


Do you think that the political aspects of it are that big a deal? True, democrats did argue that it wasn't a tax, but I'm not sure anyone cares. Republicans think everything Democrats do raises taxes anyway, and Democrats the opposite (as it were). Put another way, it's not like next year's general election commercials were going to be scrupulously accurate to begin with, and now the GOP will have a bluebook cite for an accusation of tax-raising that they would not have dared field otherwise :-)

That's a good point about the procedural decisions, although it's awfully hard to imagine they'll round off an epic 5 hour argument with an end-of-series term cliffhanger.
posted by anigbrowl at 1:03 PM on November 15, 2011


Your point about Catholic judges ruling on abortions and Democratic judges ruling on labor regulations misses the mark, I think. JFK long ago drew the distinction between public and private when it comes to Catholics and politics. And judges are duty bound to ignore their policy preferences and pay their allegiances to the Constitution when making their rulings.

How does this not cover Kagan's case? She is being asked to "ignore her policy preferences and pay allegiance to the Constitution when making her ruling."

In Kagan's case, we aren't just talking about personal policy preferences -- this is the Solicitor General of the United States, on her official email account, exclaiming her joy at an Act of Congress which is now to be litigated before her. I think it's reasonable for me to question her impartiality here.

That is an expression of a policy preference. As Solicitor General she has absolutely no role in writing the Act or getting it through Congress. If every judge had to recuse themselves from hearing cases pertaining to laws about which they'd privately expressed an opinion the judicial system would grind to a halt.
posted by yoink at 1:10 PM on November 15, 2011


How does this not cover Kagan's case? She is being asked to "ignore her policy preferences and pay allegiance to the Constitution when making her ruling."

That is an expression of a policy preference. As Solicitor General she has absolutely no role in writing the Act or getting it through Congress. If every judge had to recuse themselves from hearing cases pertaining to laws about which they'd privately expressed an opinion the judicial system would grind to a halt.

Let me draw this distinction a bit more clearly. Judges are human beings, and are therefore presumed to have biases and preferences. Judges also take an oath, in which they promise to rise above those prejudices and pay fealty to the Constitution when making decisions. But as part of this bargain, judges need to project impartiality, which means that they must curtail their expressions of support or opposition re: certain policies that may appear before them (think of any confirmation hearing you've ever watched).

The importance of impartiality is two-fold: it's to protect the public from corrupt decision making, but also to protect the image/reputation of the Court. Because federal judges have lifetime appointments and can only be removed by impeachment, they need to maintain a high standard of behavior.

As Solicitor General of the United States, Elena Kagan was not a White House staffer. She was the nation's chief litigator before the US Supreme Court. Her job was representing the Executive Branch in a non-political advocacy role before the Court. When she uses official communications to express support for a certain law to a prominent legal scholar (even in the context of arranging a dinner), it carries weight as a legal endorsement as well.

It's hard to put the toothpaste back into the impartiality tube in this instance... and because she's referring specifically to the Affordable Care Act, it's more specific than a Catholic being presumed to be generally against abortion or a Democrat being generally supportive of Labor.
posted by BobbyVan at 1:29 PM on November 15, 2011


Is there a poll anywhere to place bets on the likelihood of the conservative (Republican) court finding in favor of anything from the Obama administration? Remember, these are the folks who declared corporations are persons in order to ensure bulging GOP campaign coffers.
posted by Cranberry at 1:41 PM on November 15, 2011 [1 favorite]


It seems to me that Kagan's impartiality is certainly questionable after reading her email to Lawrence Tribe (linked above). It's also manifestly clear that she "expressed an opinion concerning the merits of the particular case in controversy" by applauding its impending passage by the Congress.

No, not at all. Kagan supported the legislation, but that's not the same thing as a court case about the legislation in question. If she had argued the government's side in such a case before the Supreme Court, then she'd have to recuse herself (and she has, several times).

As for questioning a justice's impartiality, you'd need evidence of a bribe or something like that, because justices express opinions about policy on a regular basis. That doesn't prevent them saying things like 'this policy is stupid, but legal.' Judges frequently make cutting remarks about the foolishness of a law, but what they're on guard against there is an 'absurd result' which would create glaring logical contradictions as opposed to merely being unpalatable. As pointed out at the beginning of the thread, Scalia and Thomas both attended a Federalist Society dinner last night which was sponsored in part by one of the law firms that will be arguing against the mandate later this term, so you could question their impartiality as well.

The last situation like that in the Supreme Court that I can think of would be ~40 years ago, when questions about outside income prompted impeachment proceedings against Abe Fortas (Wolfson) and William O. Douglas (Parvin). Fortas resigned before being impeached, Douglas was not impeached but felt alienated from the court and resigned a few years later after suffering a stroke.
posted by anigbrowl at 1:42 PM on November 15, 2011 [1 favorite]


When she uses official communications to express support for a certain law to a prominent legal scholar (even in the context of arranging a dinner), it carries weight as a legal endorsement as well.

Should the "official" email accounts of all the Justices be discoverable in all cases that come before them so that they can be forced to recuse themselves if they ever made a comment about the issue in a personal email to a friend? Kagan did not offer any legal opinion on the law as part of her official duties; the comment you are fixating on was a private one that happens to have been made public, not a public announcement and not one made in her official capacity. The fact that it was sent on her "official" email account does not alter those plain facts. You are inventing a standard that would see virtually every Justice who did not come straight to the bench from years as a monk operating under a strict vow of silence debarred from ruling on very large numbers of cases. It would make judgeships of former politicians virtually impossible. Do your think Earl Warren recused himself from every case he'd made public policy statements about?
posted by yoink at 1:49 PM on November 15, 2011


No, not at all. Kagan supported the legislation, but that's not the same thing as a court case about the legislation in question. If she had argued the government's side in such a case before the Supreme Court, then she'd have to recuse herself (and she has, several times).

Well, as I just mentioned, Kagan expressed her support for the legislation using her official "Solicitor General of the United States" email account -- to a leading legal scholar, no less.

As for questioning a justice's impartiality, you'd need evidence of a bribe or something like that, because justices express opinions about policy on a regular basis. That doesn't prevent them saying things like 'this policy is stupid, but legal.' Judges frequently make cutting remarks about the foolishness of a law, but what they're on guard against there is an 'absurd result' which would create glaring logical contradictions as opposed to merely being unpalatable. As pointed out at the beginning of the thread, Scalia and Thomas both attended a Federalist Society dinner last night which was sponsored in part by one of the law firms that will be arguing against the mandate later this term, so you could question their impartiality as well.

There's a big difference between judges discussing legal philosophies (which they do frequently to many audiences) and judges discussing specific laws or cases. I frequently see judges do the former... but it's much more rare (with good reason) for a judge to express an opinion on a specific law or case that stands a good chance of being litigated before the court.
posted by BobbyVan at 1:51 PM on November 15, 2011


Should the "official" email accounts of all the Justices be discoverable in all cases that come before them so that they can be forced to recuse themselves if they ever made a comment about the issue in a personal email to a friend?

Probably not. We should presume impartiality to avoid a witch-hunt mentality.

The fact that it was sent on her "official" email account does not alter those plain facts. You are inventing a standard that would see virtually every Justice who did not come straight to the bench from years as a monk operating under a strict vow of silence debarred from ruling on very large numbers of cases. It would make judgeships of former politicians virtually impossible.


Not really. Ruth Bader Ginsburg had a long career at the ACLU and hasn't been terribly hindered by that service. Again, there's a distinction between expressed philosophies and specific endorsements (or criticisms) of specific laws and cases. There is a reason that justices and prospective justices are so scrupulous about avoiding comment on the latter, even as they expound on the former.

Kagan made a huge blunder when she cheered the passage of ACA using her official "Solicitor General" email account. And anyone who thinks that Thomas should recuse himself should agree that she should as well. The law (which, again, does not apply to SCOTUS) is clear that a government employee "express[ing] an opinion concerning the merits of the particular case in controversy" provides grounds for recusal.
posted by BobbyVan at 2:00 PM on November 15, 2011


@BobbyVan A question if I may.

A while back Alito said that, as a Christian, he wasn't overly concerned about the state executing innocent people because he knew they'd be going to heaven.

Does that mean that you are of the position that he should recuse himself from all future cases involving the death penalty?
posted by sotonohito at 2:20 PM on November 15, 2011


A direct quote from Alito on the subject would be most welcome...
posted by BobbyVan at 2:21 PM on November 15, 2011 [1 favorite]


My prediction, and I've got a lousy track record here, is that in the current climate of naked partisanship in the Supreme Court they'll vote to invalidate the entire ACA as a slap in the face to Obama in hopes that it will harm his reelection chances.
posted by sotonohito at 2:22 PM on November 15, 2011


Well, as I just mentioned, Kagan expressed her support for the legislation using her official "Solicitor General of the United States" email account -- to a leading legal scholar, no less.

1. That's such a stretch that I hope you don't pull a muscle. 2. If you want to be picky, she said it was 'amazing.' This expresses astonishment without necessarily indicating approval. I think it amazing that the US re-elected GW Bush in 2004, for example. Does that mean I think it was a good thing?

There's a big difference between judges discussing legal philosophies (which they do frequently to many audiences) and judges discussing specific laws or cases. I frequently see judges do the former... but it's much more rare (with good reason) for a judge to express an opinion on a specific law or case that stands a good chance of being litigated before the court.

I feel you're skipping over the 'sponsored in part by one of the law firms that will be arguing against the mandate.' As a matter of fact, two firms (Bancroft PLLC and Jones Day) which are going to be arguing against the ACA were sponsoring the dinner where Scalia and Thomas are being feted for their long service during a conference for which the theme is whether the constitution prescribes small government.

I am OK with this, but asking me to get bent out of shape over Kagan's observation of the ACA's passage in a dinner email is just silly.
posted by anigbrowl at 2:22 PM on November 15, 2011 [2 favorites]


If you want to be picky, she said it was 'amazing.' This expresses astonishment without necessarily indicating approval.

Wow, talk about pulling muscles! I dare Justice Kagan to come out and say that that's what she meant. If the law on recusals means anything, it means that government employees can't express opinions on specific cases and then rule on them.

I feel you're skipping over the 'sponsored in part by one of the law firms that will be arguing against the mandate.' As a matter of fact, two firms (Bancroft PLLC and Jones Day) which are going to be arguing against the ACA were sponsoring the dinner where Scalia and Thomas are being feted for their long service during a conference for which the theme is whether the constitution prescribes small government.


I seriously doubt that you can buy a Supreme Court Justice these days with a dinner and an ode to their judicial philosophy.
posted by BobbyVan at 2:33 PM on November 15, 2011


in the current climate of naked partisanship in the Supreme Court

Come now.
posted by valkyryn at 2:34 PM on November 15, 2011


Ruth Bader Ginsburg had a long career at the ACLU and hasn't been terribly hindered by that service.

I am amazed that you think that (true) statement supports your case.
posted by yoink at 2:36 PM on November 15, 2011


If the law on recusals means anything, it means that government employees can't express opinions on specific cases and then rule on them.

No, it means they can't rule on cases where they have offered a professional opinion as to the merits of the case in their professional capacity. A passing comment to a friend expressing pleasure at the passage of a law does not in any way meet that definition, no matter how many times you harp on this being her Official Email Account. If she'd hand written this on official stationary would she still be out of line? What if it was on plain paper but she'd used a pen that had been supplied by her office? What if she'd chewed the end of the pen and it didn't look very " professional" any more? These are all obviously very weighty matters.
posted by yoink at 2:52 PM on November 15, 2011


Sotonohito, that was actually justice Scalia, speaking at Duquesne U. Law School: The justice's appearance, however, was not without its controversy as nine people outside the Palumbo Center carried signs and handed out material opposed to the death penalty. The Rev. Gregory C. Swiderski, who organized the group, said he did not expect to influence Justice Scalia; he hoped to reach some of those who came to hear him.

But Justice Scalia said he did see them and told the audience that he was aware of their position. Still, he said, he found no contradiction between his religious views and his support of the death penalty. "If I thought that Catholic doctrine held the death penalty to be immoral, I would resign," he said. "I could not be a part of a system that imposes it." He said his only concern on the court is law.


Scalia has previously commented on this subject in 2002, when he opined that democracy, rather than religion, is the main origin of arguments against the death penalty.

That said, it's not really an issue for me. I'm opposed to the death penalty on policy grounds, but it's patently the law of the land in much of the United States. I do not subscribe to the idea that if you don't like a particular policy you are duty bound to frustrate it, for the same reason that I don't want my dealings with public servants to take place at the whim of their personal beliefs which might well be more conservative than mine. I have met people who are adamantly opposed to interracial marriage, for example, but luckily I didn't need to worry about that when I got my marriage license because the personal beliefs of my local county clerk are not at issue in the performance of their official duties.

If you read a lot of judicial opinions, it's not so unusual to encounter statements to the effect that a judge finds a particular policy unfair, unjust, or outright repulsive, but that's often incidental to the question of whether or not it's legal. At best those remarks may carry weight in some future case that is broader in scope where a court finds itself with both the opportunity and responsibility of making a policy judgment.
posted by anigbrowl at 2:53 PM on November 15, 2011 [2 favorites]


You were right, it was Scalia, but it's from his 2002 Call for Reckoning: Religion & the Death Penalty

Full quote follows:
“So it is no accident, I think, that the modern view that the death penalty is immoral has centered in the West. That has little to do with the fact that the West has a Christian tradition and everything to do with the fact that the West is the domain of democracy. Indeed, it seems to me that the more Christian a country is, the less likely it is to regard the death penalty as immoral. Abolition has taken its firmest hold in post-Christian Europe and has least support in the church-going United States. I attribute that to the fact that for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal, a grave sin which causes one to lose his soul, but losing this physical life in exchange for the next – the Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: “Friend, be not afraid of your office. You send me to God.” And when Cramner asks whether he is sure of that, More replies, “He will not refuse one who is so blithe to go to him.”

For the non-believer, on the other hand, to deprive a man of his life is to end his existence – what a horrible act. And besides being less likely to regard death as an utterly cataclysmic punishment, the Christian is also more likely to regard punishment in general as deserved. The doctrine of free will, the ability of man to resist temptations to evil is central to the Christian doctrine of salvation and damnation, heaven and hell. The post-Freudian secularist, on the other hand, is more inclined to think that people are what their history and circumstances have made them, and there is little sense in assigning blame.”
So back to the question, does BobbyVan think Scalia should recuse himself from ever voting on a death penalty case again, he has after all said that he not only supports the death penalty, but that he's perfectly fine with killing innocent people too.
posted by sotonohito at 3:03 PM on November 15, 2011 [1 favorite]


@valkyryn After Bush v Gore I think "nakedly partisan" is about the nicest way we can described the way the conservative wing of the Court is actively and aggressively pursuing it's purely ideological and partisan agenda.
posted by sotonohito at 3:04 PM on November 15, 2011 [2 favorites]


Wow, talk about pulling muscles! I dare Justice Kagan to come out and say that that's what she meant. If the law on recusals means anything, it means that government employees can't express opinions on specific cases and then rule on them.

For the last time Bobby, a law and a case against it are two different things, and her comment on the law is so vague and general as to be vacant of meaning. Can you imagine a lawyer, any lawyer, going into court and arguing a case on the basis that a government officer described the passage of a law as 'amazing'? Kagan hasn't shown any reluctance to recuse herself in other cases where she had actually appeared in front of the court, as you well know. I might as well dare the GOP to go ahead and impeach her; since they have the House, I double-dare them. Absent an impeachment motion, all this is just so much posturing.

I seriously doubt that you can buy a Supreme Court Justice these days with a dinner and an ode to their judicial philosophy.

True, it seems they're only available in pairs, like socks.
posted by anigbrowl at 3:20 PM on November 15, 2011 [2 favorites]


So back to the question, does BobbyVan think Scalia should recuse himself from ever voting on a death penalty case again, he has after all said that he not only supports the death penalty, but that he's perfectly fine with killing innocent people too.

No, he doesn't say that at all. Please stop, or at least slow down and read it through more carefully. there's no need for you and BobbyVan to engage in a competition for who can construct the most strained and unsupportable argument.
posted by anigbrowl at 3:23 PM on November 15, 2011 [2 favorites]


In his post Supreme Court Goes Beyond Individual Mandate, Journalist Merril Goozner points to a post in Health Affairs blog by Timothy Jost that notes the surprise in this review: High Court To Review ACA’s Minimum Coverage Requirement, Medicaid Expansion

Goozner comments: "I don’t know that this cases yet rises to the level of a Dred Scott decision for the 21st century. But its framing by the states challenging the law has all the hallmarks of the southern states that challenged the 1964 civil rights act, claiming states had the right to nullify federal laws that prohibited local laws condoning segregation, impeding voting and the like. The stakes in this spat over the individual mandate have suddenly grown significantly larger."
posted by madamjujujive at 3:26 PM on November 15, 2011


Pogo_Fuzzybutt, Valkyryn, that post by Jost I linked above also talks about the tax issue - he frames it as whether the whether "the tax Anti-Injunction Act applies."

(aside: Pogo_Fuzzybutt your name is fun to type.)
posted by madamjujujive at 3:51 PM on November 15, 2011


I don't understand why the bill phrased the mandate as a penalty for not having health insurance, rather than an extra tax for everyone + a tax break for having health insurance.

As much as I support the ACA, I'm afraid it will be ruled unconstitutional for this reason.

Of course I'm unlikely to see the Democrats control the House, Senate, and Presidency again in my lifetime, so it's probably not fixable.
posted by miyabo at 3:59 PM on November 15, 2011


So back to the question, does BobbyVan think Scalia should recuse himself from ever voting on a death penalty case again, he has after all said that he not only supports the death penalty, but that he's perfectly fine with killing innocent people too.

Except the Supreme Court doesn't rule on the morality of the death penalty, or its conformity with Catholic law. It rules on the constitutionality of the death penalty in specific cases and controversies. HUGE difference.

W/ respect to Scalia, he's said he'd resign if he found that his religious obligations interfered with his duties as a judge. Seems reasonable to me.
posted by BobbyVan at 4:45 PM on November 15, 2011


I don't understand why the bill phrased the mandate as a penalty for not having health insurance, rather than an extra tax for everyone + a tax break for having health insurance.

Because the GOP, particularly the House GOP, froths about 'tax and spend democrats' at every possible opportunity, and between the financial crisis and the ridiculous complexity of the US tax code it's an easy issue for them. Sure, I think they're smoking political crack, but it works. Remember all those 'govt hands of my medicare' signs (linked for photos, not necessarily the blog) and Sarah Palin wittering about Death Panels? Illogical, sure, but the elderly are among the most reliable voters and putting a scare into them was a logical political tactic for the GOP, even if the scare itself was illogical.

It's Obama's monumentally bad luck that the financial crisis hit right before he took office. No matter how logical and sensible for the long term, telling people 'oh by the way, I need to jack up your income taxes here' was a losing argument. Frankly, I'm surprised that the ACA passed at all, and while I wish it could have just been a straightforward single payer system the idea that that was a real possibility is delusional. Thanks to TARP and general anxiety the public consensus to invest big money in a top-to-bottom reform of the health care system wasn't there. If you think it was, I respectfully ask you to find some evidence of solid majorities in its favor.

As much as I support the ACA, I'm afraid it will be ruled unconstitutional for this reason.

I don't think the mandate is as big a hurdle as you believe. Yeah, it seems completely wacky and contra-constitutional on its face, but the Supreme Court has accorded the government so much latitude under the Commerce Clause that I would be astonished if this court overturns it - not least because conservative jurists like Scalia have stuck up for that broad interpretation of the Commerce clause in the past even if they didn't like it. The controlling case here is Wickard v. Filburn in which a unanimous court held that the government could stop someone growing wheat on his own land for his own use, on the theory that growing more than his quota meant a corresponding drop in demand for wheat in the open market, which defect government was entitled to prevent by the exercise of its regulatory power.

Now this was during WW2, which was an exceptional situation that may have influenced the Court and which probably explains why the government was insistent on imposing rigid price controls. If someone was going to attack Wickard v. Filburn, pointing to the exceptional circumstance of the war seems to my amateur mind like the strongest line of attack...but that case is in turn based on Gibbons v. Ogden and Justice Marshall's sweeping definition of what the Commerce Clause empowers the Federal government to regulate (spoiler: virtually anything, though not health laws, if you read the dicta). And despite the war, Wickard v. Filburn was a 9-0 decision so overturning it with anything less seems highly unlikely. That seems to me like the judicial equivalent of a passenger suddenly pulling the handbrake on a heavily-loaded truck navigating a tricky downhill grade; the federal government (tractor) and the economy as we know it (trailer) would just do somersaults and then fly of the road completely. Hence Valkyryn's suggestion above that the Court is likely to rule as narrowly as possible. That's not to say drastic changes might not ensue as suggested above; the political stakes indeed high, but any action of that kind will be in legislatures.

Of course, there's always the crazypants option of a constitutional convention, but I wouldn't hold my breath on that one. The Supreme Court isn't going to encourage a mystery meat political process that would almost certainly result in a drastic abrogation of its powers. I hope.
posted by anigbrowl at 4:53 PM on November 15, 2011 [3 favorites]


In addition to what Anigbrowl said, there is also the consideration that if it walks like a duck and talks like a duck, then the court is probably going to treat it like a duck. Which is to say, regardless of whether congress calls it an "individual mandate" or "obligatory fee" or "your mom", its still a "tax" and they still have broad powers to levy it.

Plus, there is precedent for congress forcing people to buy something they might not otherwise:
every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder
I'm not certain that the ACA is on as shaky ground as its opponents would like.
posted by Pogo_Fuzzybutt at 5:58 PM on November 15, 2011 [3 favorites]


I seriously doubt that you can buy a Supreme Court Justice these days with a dinner and an ode to their judicial philosophy.

In Thomas' case you might have to throw in somewhere to leave unwanted pubic hair.

(I kid I kid.. sorta)
posted by edgeways at 6:28 PM on November 15, 2011


7-2 to uphold at worst. The Republicans want to run on the issue. Not run from an unpopular court.
posted by humanfont at 7:21 PM on November 15, 2011


Mittens is going to have to take dance lessons to tap his way around doing damn near the same thing
posted by edgeways at 8:06 PM on November 15, 2011


In all seriousness though, can someone please explain what the logical rationale is for: In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal judges. (from the article)

Is that true? I'm totally ignorant of this sort of thing, so there very well may be a good reason for it... what would that reason be?
I am guessing that it has to do with the fact that all federal courts except for the Supreme Court are established by acts of Congress. Presumably the legislation that Congress passes which establishes an inferior court could impose rules upon that court.

The Supreme Court, on the other hand, is coequal with Congress; Congress has no ability to legislate rules upon it.
posted by Flunkie at 8:40 PM on November 15, 2011


Co-Equal was the idea. Then the Supremes took to themselves the power of so-called "judicial review". I keep hearing arguments that this is a bad thing. I guess good ol' Thomas Jefferson thought it was the End of the Republic. But it is true, with Judicial Review, the Supreme Court is not "co-equal" to Congress, but superior. And that wasn't the intent.
posted by Goofyy at 2:35 AM on November 16, 2011


Co-Equal was the idea. Then the Supremes took to themselves the power of so-called "judicial review".

It didn't take it. Everyone knew that it had it, even before Marbury, even before the Constitution was ratified. The Federalist talks about it.
posted by ROU_Xenophobe at 5:17 AM on November 16, 2011 [4 favorites]


You know what? None of this matters to me now because I live in fucking Ohio.
posted by charred husk at 10:52 AM on November 16, 2011


I don't understand this attitude about Kagan expressing an opinion on the law means she should recuse. Does anyone think that judges who rule on evidence being inadmissible because of XYZ reason are pro-crime, or want murderers to be free? Or that judges never give instructions to juries in accordance with the law which counter their personal inclinations about a verdict?

With the exception of Bush v Gore I can't think of any case that the Supremes didn't at least endeavor to apply the appropriate principles. I may think they're off base but I have faith they'll reason within the constraints. Might they be more inclined one way or the other? Sure. But why would Kagen be unique in that?
posted by phearlez at 11:58 AM on November 16, 2011


Yesterday I said Scalia had authored the opinion in Gonzales v. Raich. This is incorrect, he wrote a separate concurrence. I think I remembered Scalia's contribution because his concurrence is longer than the opinion and IMO provides a better explanation of the holding. Like him or not, he's a very good writer.
posted by anigbrowl at 5:20 PM on November 16, 2011


Does anyone think that judges who rule on evidence being inadmissible because of XYZ reason are pro-crime, or want murderers to be free?

Absolutely. Likewise, people who don't like a judge's determination that due process has been correctly observed in a death penalty trial often opine that the judiciary is full of bloodthirsty psychopaths or has it in for the little guy or whatever.

I'd guess that something like 30% of the population thinks that way, maybe more. Look at the comments people leave on news articles about criminal trials, or even some of the threads about courts and criminal justice here on MetaFilter. There's a lot of people who treat Supreme Court proceedings as some sort of political football game. Law's complicated and most people aren't really interested in the reasoning process, especially not if it throws up a result with which they disagree.

There's a lot of research to suggest that even juries don't pay a great deal of attention to judge's instructions about what factors to consider, standards of proof and so on. Other than when they exercise their nullification privilege, I've become deeply skeptical of the jury system as a reliable fact-finding mechanism.
posted by anigbrowl at 5:55 PM on November 16, 2011 [1 favorite]


people who don't like a judge's determination that due process has been correctly observed in a death penalty trial often opine that the judiciary is full of bloodthirsty psychopaths or has it in for the little guy or whatever.

posted by furiousxgeorge at 7:19 PM on November 16, 2011


This is a fundamental states right issue. As a chiropractor, who is normally on the outside looking in when it comes to health policy, supporting the states under the commerce clause and ruling that this was posed as a penalty, not taxes, should deem the mandatory potion of the law unconstitutional.

As per the 26 yrs old, preexisting conditions, and seniors medications, our society has to make some hard choices "in the light of day" not behind closed doors - just as comments on Meta need to have real life info behind there logins. Its easy to scream and cry outrage from behind a mask.

As the Chinese slowly become the economic power broker and our budget deficit slips over the edge, taxes vs benefits is going to be the issue for the 30 to 50 yr olds to take on in the USA. "Gramma may be moving back in with the family, like they did 40 years ago".
posted by Subluxation at 3:43 PM on November 29, 2011


No, this time the family never moved out.
posted by furiousxgeorge at 3:52 PM on November 29, 2011


Grandma was moving back with the family in 1970?

Anyways China is not in as good a shape as most people imagine, it's all a shell game on both sides of the ocean.


In my opinion paranoia, wars and inflated military spending are at the heart of our current trouble. But no one really wants to tackle that.

As to constitutionality, I certainly think it is and have seen too many instances of over reliance of "commerce clause"* to be much swayed by a casual dropping along with 'fundamentally'. Especially as the commerce clause allows the Feds to regulate commerce between the states. Unless you are a subset of a strict constitutionalists then there is not a lot of room to bring it in as argument that the health care law should be overturned.


And what do you mean by "hard choices". That seems to be "thin the heard" language, which is only a half step away from eugenics, T4 and all sorts of ethically nasty implications.

oops 80 year old Bob just broke his leg, not young enough to save, break out the shotgun. You child has a developmental disability, mental illness, chronic disease.. lets do the financial prudent thing here now shall we? Hard choices.

Shall we disallow insurance expenditures on complementary and alternative medicine which chiropractic care is often classified as (rightly or wrongly), as a hard choice?

Too many times people equate money with morality, and too often "hard choices" as what other people have to deal with.



* For instance: North Dakota is currently trying to sue MN over clean air regulations MN has passed which is moving the state away from coal as a power source. ND is a major coal producer and claims the State regulations, resulting in less coal sold to MN, under the commerce clause will cause enough harm to ND that MN should be forced to continue to purchase ND coal.
posted by edgeways at 9:14 AM on November 30, 2011


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