Jamesian Philosophy Refreshed

The court this term went in different directions on the two sorts of gerrymandering. It may have finally closed out its long history of fiddling around the matter of "partisan gerrymandering," by deciding that it doesn't possess and cannot fashion the tools to deal with that. I'm reminded somewhat of the "shopping malls as public forums" cases in the 1960s and into the '70s. The idea was that malls, though privately owned, were functionally public places, so people have first amendment rights there. Even the Warren Court was hesitant about this, but the hesitancy seemed to make the subject cutting edge/intellectually stimulating. Eventually, though, the Burger court decided the idea had been a bad one, and backed far away.  The Roberts court has now done much the same with partisan gerrymandering in Rucho v. Common Cause.  But a couple of weeks earlier, the court had decided Virginia House of Delegates v Bethune, a case that seems to indicate ...

So now for the two Big Ones. 1) The Supreme Court's third big Obamacare case came down this June. The Court's response to the first Obamacare challenge, you will remember, the NFIB decision of 2012, upheld the health-insurance mandate against the charge that it did not come within any one of the federal government's "enumerated" powers under the constitution. The decision, in the law's favor, held that it didn't come within the meaning of "commerce among the states" but that this doesn't matter all that much because it did come within the meaning of the taxing power. This vote came down 5 to 4. The second challenge involved religious objections to the provision of certain types of health insurance. The opponents of the law won that one at the high court, 5 to 4, carving out a religion-based exception to the scope of the employer mandate. The winning bloc of five consisted of Justices Alito, Roberts, Scalia, Kennedy, and Thomas. This...

I never claim to know what words like "right" or "conservatism" mean. So I was happy recently to encounter a discussion of the respective rightwardness of two Supreme Court Justices, Scalia and Roberts. It gives me grist for my anyway restless mental mill. As you, my well informed reader, probably remember, Justice Roberts cast the critical vote rescuing (most of) Obamacare from a constitutional challenge. Scalia would have struck it down. Also, and more recently, Scalia voted to strike down state laws that allow for the swabbing for the purposes of DNA collection of all arrestees. Voting with Ginsburg, Sotomayor, and Kagan -- not the company in which he is accustomed to find himself.  On the other hand, Roberts voted with the majority (consisting also of Kennedy, Alito, Thomas, and Breyer) allowing the practice. In both cases, Scalia was adopting [and given his originalist ideas, attributing to the Framers] a libertarian conception of government, limiting it...

The listing of powers granted Congress by the Constitution is clearly intended to have a limiting effect. The framers were saying, "this far and no farther." Or else ... why bother?  If they had wanted any of the powers to serve as a blank check, they could have included only that one.  "Congress will do whatever the heck it thinks best." You only need one blank check, not a long list of them. Thus, it is axiomatic that none of the "enumerated" powers (a traditional though odd expression -- they weren't literally numbered in the text!) is supposed to be universal in its scope. I have always felt rather embarrassed on behalf of the Supreme Court as an institution by its decision to turn the commerce clause into the blank check power. Wheat grown on a farm, baked into bread and consumed on that very farm (and thus of course in the same state) was held in Wickard v. Filburn to be a matter of interstate commerce. You can read the decision here i...

Now I really must say something about NFIB v. Sebelius , SCOTUS' big Obamacare decision, or you will think me a shirker. Let's start with this datum: Chief Justice John Roberts is only the second SCOTUS Justice in the institution's history with that surname. Its a fairly common surname in English-speaking countries, so I don't know whether 2-out-of-112 is a lot or suspiciously few. Anyway, the coincidence seems worth mentioning because the previous Justice Roberts [ Owen Roberts , a Hoover appointee on the court from 1930 to 1945] has gone down in history as the Justice who made the big switch, who turned the court from one with an anti-New Deal 5 Justice majority into one with a pro-New Deal 5 Justice majority by his own change of heart under political pressure in 1937. Reference Guide The usual accounts of that "switch in time" are sometimes too simply and broadly written, and certainly it wasn't all about Roberts. Chief Justice Hughes...

This term, largely because of the bang-up way it ended, has seen the beginnings of right-wing resentment against Chief Justice John Roberts. There is even an  "impeach Roberts" meme bubbling about in some quarters! It will go nowhere, unless some extra-judicial scandal is brewing I haven't heard about, but it is an intriguing symptom. In the Warren Court era, there were "Impeach Earl Warren" bumper stickers and billboards apenty. Never got traction. There was also a push to impeach Justice Douglas, who was a good bit to the left of Warren by anyone's metric, and that did get a little traction.   That arose from Douglas extra-judicial activities. He wrote an artticle for "Avant Garde," a magazine published by Ralph Ginzburg, at a time when litigation concerning alleged libel by Ginzberg, litigation that had constitutional significance and would eventually reach SCOTUS, was underway in the federal courts. The content of the actua...