Who will President Obama nominate to replace Justice Antonin Scalia

February 16, 2016

Despite a constitutional mandate to do so, senate majority leader Mitch McConnell has decreed that the Republicans will not conduct any hearings to consider whether to approve anyone whom President Obama might nominate to replace recently deceased Justice Antonin Scalia.

So much for the importance of his oath to uphold the Constitution and the laws of the United States.

President Obama has announced that he will nominate someone in “due time.” Speculation abounds.

The identity of the person he nominates is less clear than the strategy he uses to select his nominee. Not only must he select someone above reproach, he must select someone who has recently been approved by the senate to serve in a judicial or law enforcement position. The nominee must be so above reproach and non-controversial as to cast shame onto anyone who opposes him or her. That would be shame of the sort that would result in the senator’s loss in a November reelection bid. Given the right candidate, the democrats could regain control of the Senate.

One such candidate is Judge Sri Srinivasan, whom the senate unanimously confirmed by a vote of 97-0 in May 2013 to serve on the United States Court of Appeals for the D.C. Circuit. In addition to serving as a judge on the United States District Court for the District of Columbia, he served as a deputy solicitor general in DOJ’s Office of the Solicitor General. As a south asian minority (born in India) with a JD and an MBA from Stanford, his credentials are difficult to beat.

Another difficult to beat contender is Attorney General Loretta Lynch, whom the Senate recently confirmed. Tom Goldstein, who runs the influential SCOTUSblog, believes she will be the nominee. NBC News reports,

But tapping Lynch to fill the seat of Scalia, who died suddenly Saturday, poses a perception problem for Republicans because her “history as a career prosecutor makes it very difficult to paint her as excessively liberal,” Goldstein wrote.

Lynch would be the first black woman ever nominated to the nation’s highest court — and the GOP would have a political problem during an election year if the Republicans refused to even consider her nomination, Goldstein wrote.

“I think the administration would relish the prospect of Republicans either refusing to give Lynch a vote or seeming to treat her unfairly in the confirmation process,” Goldstein wrote. “Either eventuality would motivate both black and women voters.”

Stay tuned as President Obama’s choice may turn out to be the most important and consequential decision he makes during his presidency. It really is that important. In addition to losing control of the senate, a republican refusal to consider her could cost the republicans the fall election.

With Justice Scalia dead we have to elect a democrat in November

February 14, 2016

Ironically, United States Supreme Court Justice Antonin Scalia, 79, died yesterday of natural causes after spending the day hunting quail at a resort ranch in west Texas. Generally regarded as the most conservative member of the court, his death eliminates the one-vote conservative majority. This means the justices will likely tie 4-4 on many issues until Justice Scalia is replaced. From the New York Times,

The court faces a crowded docket of politically charged cases that are certain to resonate in the presidential campaign on issues such as immigration, abortion, affirmative action, climate change, labor unions and Obama’s health care law. Decisions were expected in late spring and early summer on whether the president could shield up to 5 million immigrants living in the United States illegally from deportation.

The immediate impact of Scalia death means that the justices will now be divided 4-4 in many of those cases. If there is a tie vote, then the lower court opinion remains in place.

A Senate looking at a limited legislative agenda in an election year now faces one of the most consequential decisions for the venerable body. Not only will voters choose the next president, majority control of the Senate is at stake in November, with Republicans clinging to control and concerned about the fate of some half dozen GOP senators running for re-election in states that Obama won.

What is supposed to happen: President Obama will nominate a successor. The Senate Judiciary Committee will hold a confirmation hearing. If it approves the nomination, the full senate will vote on the nomination. If approved by a majority, the nomination will be confirmed and the new justice will be sworn in. The appointment is for life, or until such time as the justice decides to retire.

What is going to happen: Senate Majority Leader Mitch McConnell has already announced that the Republican controlled Senate will not hold hearings to consider President Obama’s nominee. He hopes that a Republican will be elected in November.

What this means for the country: We damn well better elect a democrat as our next president.

SCOTUS rejects statutory challenge to Affordable Care Act

June 25, 2015

The Supreme Court of the United States (SCOTUS) today rejected by a vote of 6-3 a statutory challenge to the Affordable Care Act (Obamacare). Chief Justice Roberts, who previously cast the deciding vote upholding the constitutionality of the ACA, wrote today’s opinion rejecting the statutory challenge. He was joined by Kennedy, Kagan, Breyer, Sotomayor and Ginsberg. Scalia, Thomas and Alito dissented.

The statutory challenge was based on the following four words buried on page 95 of a 960 page statute that authorized federal subsidies to pay for insurance plans: “established by state exchanges.” 34 states opted out of establishing state exchanges. In King v. Burwell, opponents to Obamacare argued that federal subsidies were not available to defray the cost of insurance in those 34 states, given those four unambiguous words.

Chief Justice Roberts reasoned that a literal interpretation of those four words would emasculate the ACA because it would result in 6.8 million people losing their health insurance because they could not afford it without the subsidies. Since the purpose of the ACA was to provide insurance, rather than to deny it, he decided the four words were ambiguous and upheld the statute.

Justice Roberts’s decision makes perfect sense.

Purists might disagree, but the remedy for a contrary decision favored by the minority, would have required Congress to amend the statute so that the 6.8 million people who lost their insurance would be able to get it back. That was not going to happen with Republicans holding majorities in both houses of Congress

The SCOTUS also upheld the Fair Housing Act prohibiting “disguised animus” resulting in disparate impact discrimination practices, regardless whether they were intended.

Good and somewhat unexpected results today.

Chaos in Alabama

February 9, 2015

Acting in defiance of United States District Court Judge Callie “Ginny” Granade, who ruled last month that the Alabama prohibition against same-sex marriages violates the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution, the Chief Justice of the Alabama Supreme Court, Roy Moore, yesterday ordered all of the probate judges in the state to refuse to issue same sex marriage licenses.

In a letter, Moore wrote, “Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975,” the state laws banning same-sex marriage.

Until today no same-sex marriage licenses had been issued in Alabama since Judge Granade’s decision because she had issued a stay delaying enforcement of her order until this morning in order to give the Attorney General of the State of Alabama an opportunity to appeal her decision. After granting certiorari to review Alabama’s appeal from Judge Granade’s decision, the Supreme Court of the United States (SCOTUS) by a vote of 7-2 today rejected Alabama’s request to continue the stay of enforcement pending the outcome of Alabama’s appeal. The SCOTUS’s rejection of Alabama’s request for the stay conflicts with Chief Justice Moore’s order yesterday prohibiting probate judges from issuing same-sex marriage licenses. Chaos has ensued as probate judges in some counties have issued same-sex marriage licenses while probate judges in other counties have refused.

The solution is simple. It’s called the Supremacy Clause. Article 6, Clause 2 of the United States Constitution provides,

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

And that is the end of that.

Chief Justice Roy Moore is the same guy who a few years ago defied a federal judge’s order to remove a Ten Commandments monument from a public building. He conjures up memories of former Governor George Wallace who defied the federal courts. Here’s Wikipedia to toggle your memory,

In 1963, President John F. Kennedy’s administration ordered the U.S. Army’s 2nd Infantry Division from Ft. Benning, Georgia to be prepared to enforce the racial integration of the University of Alabama in Tuscaloosa. In a vain attempt to halt the enrollment of black students Vivian Malone and James Hood, Governor Wallace stood in front of Foster Auditorium at the University of Alabama on June 11, 1963. This became known as the “Stand in the Schoolhouse Door.”

SCOTUS Justice Clarence Thomas, joined by Justice Antonin Scalia, wrote the dissenting opinion from today’s order denying Alabama’s request for a stay. He said in pertinent part,

Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. This acquiescence may well be seen as a signal of the Court’s intended resolution of [the gay-marriage] question. This is not the proper way to discharge our [constitutional] responsibilities. And, it is indecorous for this Court to pretend that it is.

It doesn’t take a weather man to tell which way the wind blows.

Congratulations and best wishes to every same-sex couple in Alabama who waited so patiently for this day to finally arrive.

For more information and photos, go here.

Why did the SCOTUS grant cert in Heien

December 16, 2014

Tuesday, December 16, 2014

Good afternoon:

Annie Cabani asked the following question:

It’s baffling, too, why they granted certiorari in this particular case. Apparently, the NC Supreme Court had achieved the same result as the SCOTUS, so why didn’t they just leave it alone?

It’s like they went out of their way to issue this constitutional ruling (and a quick one … only two months) when they didn’t even need to, yet they slam their door on folks who really need to be heard. What’s up with that?


They had an agenda. They have been looking for a case with a suitably appropriate set of facts upon which they could base their decision carving out an exception to the reasonable-suspicion rule and the exclusionary rule, which is a judicial remedy that excludes evidence seized in violation of that rule (and others). They wanted the Heien case from NC because it only applies in NC. The federal courts and all other state courts are not bound by it. They accepted review because they wanted to establish that rule for all courts.

I believe this new rule that exempts operation of the exclusionary rule for reasonable mistakes by police regarding what is unlawful is absolutely awful. Only time will tell what constitutes reasonable ignorance or stupidity. Nothing good will come of this bizarre decision.


The SCOTUS has the power of discretionary review, which means they get to choose the cases they are willing to review. With few exceptions, intermediate courts of appeal do not have the power of discretionary review. They have to accept review because litigants in the trial, where all trials take place, have a right to appeal if they are unhappy with the result.

Before each term, the nine justices of the SCOTUS meet and decide what new legal rules they want to establish and what existing rules they want to eliminate or change. Each term they receive thousands of cert petitions, which are applications for discretionary review. They are called petitions (requests) for a writ (order) of certiorari (granting review). They review them for cases containing the issues they want to address. Within that group they look for cases with the best set of facts to support the decision they want to reach. They grant cert in those cases and deny cert in the rest. At least four votes in favor of granting cert are necessary for a petition to be granted.

All state supreme courts have the same power but they call the requests for review petitions for discretionary review.

A decision by a state supreme court is binding authority on every court within that state. It is non-binding authority on other state courts and the federal courts.

A SCOTUS decision interpreting federal law, the Constitution or its amendments, including the Bill of Rights, is binding authority on every court in the land. A decision by a federal circuit court of appeal interpreting federal law, the Constitution or its amendments, including the Bill of Rights, is only binding on courts in that circuit.

Procedural History of Heien

The following summary was prepared by the official Reporter of Decisions:

Following a suspicious vehicle, Sergeant Matt Darisse noticed that only one of the vehicle’s brake lights was working and pulled the driver over. While issuing a warning ticket for the broken brake light, Darisse became suspicious of the actions of the two occupants and their answers to his questions. Petitioner Nicholas Brady Heien, the car’s owner, gave Darisse consent to search the vehicle. Darisse found cocaine, and Heien was arrested and charged with attempted trafficking. The trial court denied Heien’s motion to suppress the seized evidence on Fourth Amendment grounds, concluding that the vehicle’s faulty brake light gave Darisse reasonable suspicion to initiate the stop. The North Carolina Court of Appeals reversed, holding that the relevant code provision, which requires that a car be “equipped with a stop lamp,” N. C. Gen.Stat. Ann. §20–129(g), requires only a single lamp—which Heien’s vehicle had—and therefore the justification for the stop was objectively unreasonable. Reversing in turn, the State Supreme Court held that, even assuming no violation of the state law
had occurred, Darisse’s mistaken understanding of the law was reasonable, and thus the stop was valid.

Note that this summary is not part of the decision itself. Better to read the opinion itself and cite from it rather than the summary that is not binding on anyone. Some summaries are better than others. Woe unto the law student or lawyer who gets it wrong by relying on the summary. Lawyers fondly refer to such moments as get-out-your-checkbook time.

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SCOTUS ominously grants cert in King v. Burwell

November 8, 2014

Saturday, November 8, 2014

Good morning:

I’ll take Risible Notions for $5,000 Alex.

The Supreme Court of the United States (SCOTUS) ominously granted certiorari (i.e., agreed to review) the Fourth Circuit’s decision in King v. Burwell rejecting an argument that federal subsidies in the form of tax credits to purchase mandatory health insurance under the Affordable Care Act (AKA: the ACA or Obamacare) are only available to people who live in states that establish exchanges where they can select and purchase a health insurance plan. Only 12 states have set-up exchanges; 38 have not.

The federal government set-up exchanges in the 38 states that opted out. Approximately five million people in those states who have signed-up for health insurance qualify for subsidies (e.g., a single person who makes less than $45,960 or a family of four that makes less than $94,200).

The L.A. Times provides an example.

In most states, a large majority of those buying insurance qualify for subsidies. For example, in Illinois, which uses the federal exchange, about three-quarters of the roughly 200,000 people who enrolled in health coverage this year qualified, according to the Department of Health and Human Services. The subsidies reduced average monthly premiums by more than $200, from $316 to $114 a month.

In other states, the reductions were even more dramatic. In Mississippi, the average monthly premium without a subsidy would have been $438. With subsidies, consumers in the state pay an average of $23 a month.

The argument that federal subsidies are not available to people who sign-up for health insurance in the 38 states that use the federal exchanges is based on language in the statute that limits those subsidies to policies bought on an “exchange established by the state.”

The counter argument is that Congress would not have required everyone to purchase insurance (i.e., the individual mandate), given states a choice to set-up exchanges and directed the federal government to set-up exchanges in the states that opted not to do it, if it intended to not subsidize the cost of insurance purchased from a federal exchange.

Judge Edwards said it best in his dissenting opinion in Halbig v. Burwell, a case with the same issue recently decided by the D.C. Circuit, the appellants peddle a “narrative concocted to provide a colorable explanation for the otherwise risible notion that Congress would have wanted insurance markets to collapse in States that elected not to create their own Exchanges.” 758 F.3d at 416 (Edwards, J., dissenting).

Although the decision by the three judge panel in Halbig is contrary to the decision by the Fourth Circuit in King, the D.C. Circuit has granted en banc review of the decision. En Banc review means review by the full court.

The SCOTUS decision to grant cert in King is ominous because a decision to grant cert requires four votes. That means four members of the court likely believe “the risible notion that Congress would have wanted insurance markets to collapse in States that elected not to create their own Exchanges.”

Justices Scalia, Thomas, Alito and Kennedy probably voted to grant cert because they voted against the ACA, which Chief Justice Roberts ‘saved’ by joining with the four liberals, Ginsberg, Breyer, Sotomayor and Kagan, to find it constitutional.

The SCOTUS decision in King is critically important because the ACA will collapse and the five million people who purchased subsidized health insurance from federal exchanges in 38 states will be unable to pay for the3ir insurance, if the SCOTUS decides to accept “the risible notion that Congress would have wanted insurance markets to collapse in States that elected not to create their own Exchanges.”

This is not my country anymore.

For more information to understand why the ACA cannot survive if the SCOTUS accepts the risible notion, please read the amicus brief filed in Halbig by 49 economists.

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SCOTUS upholds voter-passed law prohibiting affirmative action in university admissions

April 22, 2014

Tuesday, April 22, 2014

Good morning:

The United States Supreme Court issued an opinion today by a vote of 6-2 upholding a voter-passed constitutional provision in Michigan that prohibits colleges and universities from using affirmative action policies in deciding whether to admit applicants to enroll in their academic degree programs.

The decision reverses an en banc decision by the Sixth Circuit Court of Appeals. An en banc decision is a decision by the entire circuit court, as opposed to a three-judge panel.

Justice Anthony Kennedy wrote the majority opinion. He held that the sixth circuit did not have the authority to overrule Michigan voters. He said,

This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.

Justices Roberts and Alito joined his opinion.

Justice Scalia, joined by Justice Thomas, concurred in the result, but added that parties who claim that a law denies equal protection must show that the law has a discriminatory purpose in order to prevail. He concluded that the constitutional provision was legitimate since it did not have discriminatory purpose.

I rarely agree with Justice Scalia and this is yet another decision with which I disagree. Affirmative action laws were enacted to create opportunities for minorities to acquire the necessary education, skills and experience to overcome discrimination and compete for employment on equal footing with others.

I do not see how he can say with a straight face that the constitutional provision passed by voters prohibiting affirmative action in admissions to state colleges and universities has no discriminatory purpose.

Affirmative action programs were enacted to give meaning to the Equal Protection Clause of the 14th Amendment. Racism is real and only a racist or racist enabler would deny it. Racist voters, who would deny minorities the opportunities for improvement accorded by affirmative action laws because of the color of their skin, establish the discriminatory purpose.

Justice Sonia Sotomayor dissented, joined by Justice Ruth Bader Ginsburg. She read her decision aloud in court this morning noting that the majority decision is a blow to “historically marginalized groups, which rely on the federal courts to protect their constitutional rights.” She warned that, “Without checks, democratically approved legislation can oppress minority groups.”

Justice Stephen Breyer, who usually votes with justices Sotomayor, Ginsberg, and Kagan, deserted them this time. He did not see a problem with allowing voters to decide whether to adopt race-based admissions policies.

Justice Kagan recused herself from participating in this case.

The name of the case is Schuette v. Coalition to Defend Affirmative Action, U.S. Supreme Court, 12-682.

Read the 6th circuit’s en banc decision that struck down the voter passed constitutional provision that the SCOTUS shamelessly upheld today.

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SCOTUS to hear arguments today regarding president’s power to appoint during Senate recess

January 13, 2014

Monday, January 13, 2014

Good morning:

The SCOTUS will be hearing arguments today regarding the president’s power to appoint people, whose appointments are normally subject to the consent of the Senate, when the Senate is not in session.

Article 2, Section 2 of the Constitution provides:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Senate Republicans precipitated this battle by abusing the filibuster power to block appointments to vacancies on the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CPFB) and by scheduling pro forma or brief meet-and-greet-see-you-next-time-ha-ha “sessions” to further frustrate and prevent the president from appointing people to positions in his government while the Senate is in recess.

PBS summarizes what is at stake:

Senate Republicans’ refusal to allow votes for nominees to the National Labor Relations Board and the new Consumer Financial Protection Bureau led the president to make the temporary, or recess, appointments in January 2012.

Three federal appeals courts have said Obama overstepped his authority because the Senate was not in recess when he acted. The Supreme Court case involves a dispute between a Washington state bottling company and a local Teamsters union in which the NLRB sided with the union. The U.S. Circuit Court of Appeals for the District of Columbia overturned the board’s ruling, and hundreds more NLRB rulings could be voided if the Supreme Court upholds the appeals court decision.

More broadly, if the justices ratify the lower court ruling, it would make it nearly impossible for a president to use the recess power. Under such a ruling, presidential nominees could be blocked indefinitely when the president’s party does not control the Senate.

Three federal appeals courts have upheld recess appointments in previous administrations.

By a simple majority vote recently, the Democrats voted to change the Senate rules to limit the ability of the minority party to block most presidential nominees, spurred by GOP efforts to block three Obama appeals court nominees.

Yet the issue still remains for non-judicial appointments.

What do you think.


This is our 849th post in 26 months.

We have received two donations since yesterday’s post for which we are very grateful. As I said yesterday, I realize it’s easy to assume others will step in and contribute, but that type of thinking doesn’t work when everyone does it.

We’ve averaged less than 1 donation per day during the past week despite hundreds of visitors per day and thousands of page views. We’re not trying to get rich here, but this just isn’t working out for us.


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