Tag: Supreme Court

FLASH: Liberal White House Nominates Liberal Judge!

From the first round of Clinton Library documents regarding Elena Kagan’s White House service, we can now all be shocked – shocked! – that President Obama’s Supreme Court nominee is a liberal.  It’s a mystery why the punditocracy thought someone who despaired at Ronald Reagan’s election, staffed the Michael Dukakis campaign, clerked for Thurgood Marshall, and advised Bill Clinton would be anything else.  But this is what passes for news in Washington these days.

We already knew that the solicitor general was a genial but cautious careerist, rarely expressing her own opinions but forever strategizing over the next rung on the ladder that would take her to her high school dream of sitting on the Supreme Court.  And we knew that she was a moderate legal academic – meaning she sits comfortably to the left of the country as a whole.  Well, now we know that Kagan is a technocrat who is for abortion rights, affirmative action, and campaign finance regulations, but against guns.

Some conservatives may see this as an “a-ha” moment, and rabid progressives may be breathing a sigh of relief.  But really these so-called revelations are not going to change the story, either in terms of the final confirmation vote or in the court of public opinion.

What the media should be asking, and what the American people deserve to know, is how Kagan views the Constitution – especially what limits it places on an out-of-control federal government.  In a prophetic 1995 book review, the nominee expressed frustration at the “vapid and hollow charade” that the confirmation process had become and demanded that both senators and judicial nominees engage in more substantive discussions.  Let’s see if the Kagan hearings meet that Kagan standard.

School Vouchers vs. Tax Credits

NRO editor Robert VerBruggen has weighed in a couple of times this week on the relative merits of school vouchers and education tax credits, raising interesting and important issues.

In response to my earlier post today about an education tax credit case now before the U.S. Supreme Court, VerBruggen writes:

If the Supreme Court buys this logic — which I suppose is sound on its face — it could lead to some very interesting programs. Any time it’s illegal for a government to fund something directly, it could simply make a dollar-for-dollar “tax credit” program for it, allowing sympathetic taxpayers to technically “donate” — but actually just redirect the taxes they’d otherwise have to pay — to the cause.

This is actually an argument presented by critics of the program in their brief asking the Supreme Court not to hear the appeal that it… just decided to hear. The fact that this argument is fallacious is no doubt one reason that the Supreme Court decided to reject critics’ request. Here’s where it goes wrong:

Under a constitutional tax credit program such as Arizona’s, the state has no power to pressure/encourage taxpayers to do anything that the state could not do directly. Taxpayers can choose to give no money to religious charities, or to give all their money to them. The state is unable to affect their decisions in any way.

As Ilya Shapiro and I pointed out in Cato’s amicus brief in this case, this is identical to the law pertaining to federal charitable tax deductions. Religious charities get more tax deductible donations than any other kind of entity, and the Supreme Court has repeatedly upheld their constitutionality because the decisions regarding such donations are left entirely to the unfettered choices of private citizens.

While it would be unconstitutional for a tax credit program to only allow donations to religious charities, it is perfectly consistent with the U.S. Constitution and Supreme Court precedent for a tax credit program to be religiously neutral, leaving the donating decisions to private citizens.

But there’s much more to it than this. Credits are not just constitutional, they offer an important advantage over vouchers. Under voucher programs, all taxpayers must support every kind of schooling, which can be a source of social conflict in a diverse society. [Think liberals being forced to fund religious-conservative-capitalist schooling; or conservatives being forced to fund schools supporting homosexuality as natural and without any inherent moral implications]. While this doesn’t violate the U.S. constitution (see Zelman v. Simmons Harris), it’s still a less-than-ideal outcome, as was observed in all three dissents in the Zelman case.

Tax credits, as I explained in the last section of our amicus brief (p. 21), avoid this source of social conflict. Not just families but taxpayers enjoy the benefits of free choice and voluntary association. Tax credits are thus a way to ensure universal access to a free educational marketplace without putting citizens into conflict with one another on matters of conscience. For this and many other reasons, they are the best realistic policy for advancing educational freedom yet devised.

Supreme Court Will Hear Appeal of School Choice Case

The SCOTUS Blog reports this morning that the United States Supreme Court has agreed to hear an appeal of the Ninth Circuit’s ruling in the Arizona k-12 scholarship tax credit case. This is great news, and paves the way for the Court to ultimately overturn the 9th Circuit’s credulity-straining legal misadventure.

For the details, see the Cato brief in this case, which was joined by the American Federation for Children and Foundation for Educational Choice.

Law Professor Confesses ‘I’m a Criminal’

Law Professor Michelle Alexander:

Lately, I’ve been telling people that I’m a criminal. This shocks most people, since I don’t “look like” one. I’m a fairly clean-cut, light-skinned black woman with fancy degrees from Vanderbilt University and Stanford Law School. I’m a law professor and I once clerked for a U.S. Supreme Court Justice – not the sort of thing you’d expect a criminal to do.

What’d you get convicted of? people ask. Nothing, I say. Well, then why do you say you’re a criminal? Because I am a criminal, I say, just like you.

Read the whole thing. (H/T Sentencing Law and Policy).  Judge Alex Kozinski and Misha Tseytlin make a similar point in an essay in my book entitled, “You’re (Probably) a Federal Criminal.”

More here and here.

The Ninth Circuit as a Denial of Service Attack on American Justice

The Supreme Court is expected to decide tomorrow whether to summarily overturn a Ninth Circuit Court ruling, hear an appeal of that ruling, or let the Ninth Circuit’s decision stand. The case involves Arizona’s k-12 scholarship tax credit program that helps families afford private schooling, which the Ninth Circuit found last year to violate the First Amendment.

Before the Ninth Circuit handed down its decision, I predicted that it would rule against the tax credit program, and that it would eventually be overturned by the Supreme Court. The first part of that prediction came to pass, and I still expect the second part to as well. For the reasons why SCOTUS will overturn the Ninth Circuit, see Cato’s brief in the case

Ilya Shapiro (with whom I co-wrote that brief) draws attention today to a great column by George Will in which Will likens the Ninth Circuit to a “stimulus package” for the Supreme Court. It’s a funny analogy, but it’s too benign. It’s more accurate to see the Ninth Circuit as a Denial of Service Attack on American justice. A D.O.S. is a computer attack that prevents Internet surfers from accessing a particular website/server by flooding it with spurious requests. By failing to take Supreme Court precedents seriously, as the Ninth Circuit routinely does, it creates a torrent of ridiculous rulings that demand the Supreme Court’s attention, thereby preventing the nation’s highest court from taking other important cases.

If there is a way for SCOTUS to reprimand the Ninth Circuit for spuriously consuming the nation’s most important legal resources, it would be in the interest of justice for it to do so.

Crocodile Tears? Liberals Lament Lack of Their Own on the Court

An interesting narrative has arisen among some on the left that the nomination of Elena Kagan shows what chumps Democratic presidents are.  That is, not only could President Obama have tapped a stronger “progressive” voice, but he – like President Clinton before him, and unlike Republican presidents – put avoiding political fights ahead of moving the Court left.  Since LBJ, Democrats have opted for a “moderate technocrat” like Stephen Breyer rather than a “lion” like William Brennan or Thurgood Marshall.  (Sonia Sotomayor was good and necessary for identity politics, the argument continues, but, let’s face it, she’s no liberal Scalia.)

Take this opening quote from a New York Times article that came out the day of the nominee’s announcement: “The selection of Solicitor General Elena Kagan to be the nation’s 112th justice extends a quarter-century pattern in which Republican presidents generally install strong conservatives on the Supreme Court while Democratic presidents pick candidates who often disappoint their liberal base.”  Or Dahlia Lithwick’s op-ed in Slate about how liberal law students are so many lost sheep because their ideological heroes are deemed unconfirmable and therefore not part of the nomination discussion.

Well.  A few things on this: First, even if the argument were true, it’s simply not statistically significant because we’re only talking four Democratic appointments (Breyer and Ruth Bader Ginsburg by Clinton, Sotomayor and Kagan by Obama; poor Jimmy Carter had none, the same number George W. Bush would have had had he not been re-elected).  Second, if you line up the Republican and Democratic nominees in recent decades, it’s conservatives who are disappointed (need I even mention John Paul Stevens, Anthony Kennedy, and David Souter, let alone Earl Warren and Brennan himself, all Republican nominees).  Third, to say that someone like Ginsburg – a push-the-envelope feminist and ACLU lawyer – is a moderate is to center the jurisprudential spectrum around the law faculty lounge.  And fourth, as David Bernstein details, it is people like Richard Epstein – and other Federalist Society regulars like Dan Troy, Miguel Estrada, John Eastman, Frank Easterbrook, Stephen Bainbridge, and Todd Zywicki (as well as Cato’s own Roger Pilon, Randy Barnett, and Ilya Somin) – who would be considered filibusteringly beyond the pale, much more than Lithwick’s vaunted American Constitution Society stalwarts.

In short, if anything it is Republicans who can rightfully be disappointed in their presidents’ nominees – though Kennedy’s seat was of course originally to have been filled by Robert Bork. More unfortunately, it is libertarian law students who can lament that their kind lacks representation on the High Court – though note that the second choice for Kennedy’s seat was Douglas Ginsburg (the last judicial martyr of the drug war).  And so, as the Court remains securely to the left of the American people, just today ratifying radical assertions of federal legislative and judicial power, Elena Kagan is poised to fit right into that jurisprudential “mainstream.”  Good for the left, bad for the Constitution.

Comstock & Health Care Litigation

Some will immediately claim that today’s decision in United States v. Comstock bodes ill to pending challenges to the individual health insurance mandate, but this would be a mistake.  It is one thing to uphold as “necessary and proper” a law confining sexual predators who were already incarcerated pursuant to the enumerated powers of Congress.  It is quite another to impose a mandate on every citizen of the United States as necessary and proper to its power “to regulate commerce … among the several states.”  The justices who sided with the government today cannot all be counted on to uphold the unprecedented claim of federal power to require that all persons engage in economic activity.