Showing posts with label Antonin Scalia. Show all posts
Showing posts with label Antonin Scalia. Show all posts
Monday, September 17, 2012
Obamacare Constitutional but Still Sucks
Robert Sterling, Konformist.com
In a last minute reversal by Chief Justice John Roberts, Obamacare was ruled constitutional by the Supreme Court. It is important to note that in upholding the law, the Supremes rejected the usage of the Commerce Clause to justify the individual mandate, which is a victory for those who found such an argument to be insidious. Obviously, include myself in that group.
The claim that mere existence made one involved in commerce (which was central to the Commerce Clause argument) had no historical precedent, as even judges who had previously upheld the law had agreed in unanimty. Even worse, any precedent that was even close to this was one that no self-respecting progressive should ever embrace. (The most notable precedent being written by Antonin Scalia, where he argued that due to the Commerce Clause, the War on Drugs trumps the power of states to legalize marijuana for medicinal purposes.) It was disappointing to see so many so-called liberals, in their desperation to defend Obamacare, to be totally oblivious and dismissive of such concerns. It shouldn't be surprising, as in the last four years what has passed for liberalism has bottomed out to merely mean being a pathetic shill for Barack Obama rather than represent any coherent philosophy.
Of course, that Obamacare is constitutional should be the minimum standards one should expect for a law. (Alas, in the age of torture and the Patriot Act, such minimum standards is increasingly becoming a norm.) Another standard is how popular it is with the public. On this score, Obamacare has been a major flop since its inception. A June 2012 NY Times/CBS News poll before the Supreme Court ruling underscored this: 41 percent of all polled believed the entire law should be overturned, while 27 percent wanted an overturn of the mandate. Only 24 percent wanted the law to be upheld. This was despite a relentless push by the White House, Democratic Party and the media establishment to sell the public on the law as some sort of progressive victory. While there was a slight increase in approval of Obamacare after the ruling (a bump that is normal in terms of how polling goes) the general trend on Obamacare is unpopular with a bullet downward.
That Obamacare is unpopular shouldn't be too surprising, and I for one am someone who warned of this when the law passed. And the establishment liberal response to this unpopularity, merely dismissing the opposition to ignorant dupes, is not only false but highly insulting to voters. In this case, the public rightfully smells a loser here. While Obamacare is sold as a progressive law, all its origins come from from right-wing think tanks, and its premises are all based on snide contempt for the poor and working class. It's solutions are based on slashing funds to Medicare (a fact which proves the widely mocked "death panels" cry to be not completely off-base) and the individual mandate is based on the premise that poor young people are somehow cheating the system by not purchasing health insurance they can't afford. It is a Marie Antoinette solution to our health care crisis, except cake is a lot cheaper and not manufactured by parasitic oligopolies that rip off its customers at every opportunity. (The opportunities, thanks to Obamacare, will soon radically increase.) The worst thing about Obamacare isn't Obamacare itself, which I assume will eventually fail and die due to its fundamental flaws. The worst thing about Obamacare is whenever a real progressive reform is ever proposed in the future, it will be called Obamacare II, and it will be that much harder for it to pass. Sadly, any such skepticism will be deserved, as the liberal apologism for the reactionary law known as Obamacare should rightfully discredit any supporters further arguments on the issue of health care.
Poll URL source:
http://thecaucus.blogs.nytimes.com/2012/06/07/new-poll-the-supreme-court-and-the-health-care-law/
Wednesday, January 26, 2011
Scalia Kills Corporate Personhood
"In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that... But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society."
So said Antonin Scalia recently in a highly controversial speech.
However, as noted on FireDogLake.com, if he actually believes this, then the whole idea of corporate personhood gaining rights through the 14th Amendment is totally bogus. Thom Hartmann is quoted saying that "before the Supreme Court the Southern Pacific Railroad argued in this case that the 14th amendment which says ‘no person shall be denied equal protection under the law’ should apply to them as a corporation. In other words, that as a corporation they should have rights under the constitution because the 14th amendment, when it was written to free the slaves in the 1870’s, the 14th amendment didn’t say ‘no natural person shall be denied equal protection under the law.’ Instead it says ‘no person.’ And for hundreds of years of common law we had this distinction between natural persons, you and me, and artificial persons: churches, governments, corporations."
Scalia Kills Corporate Personhood
Emptywheel
Wednesday January 5, 2011
http://emptywheel.firedoglake.com/2011/01/05/scalia-kills-corporate-personhood
Yes, yes. Sorry, to tell you that... But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society."
So said Antonin Scalia recently in a highly controversial speech.
However, as noted on FireDogLake.com, if he actually believes this, then the whole idea of corporate personhood gaining rights through the 14th Amendment is totally bogus. Thom Hartmann is quoted saying that "before the Supreme Court the Southern Pacific Railroad argued in this case that the 14th amendment which says ‘no person shall be denied equal protection under the law’ should apply to them as a corporation. In other words, that as a corporation they should have rights under the constitution because the 14th amendment, when it was written to free the slaves in the 1870’s, the 14th amendment didn’t say ‘no natural person shall be denied equal protection under the law.’ Instead it says ‘no person.’ And for hundreds of years of common law we had this distinction between natural persons, you and me, and artificial persons: churches, governments, corporations."
Scalia Kills Corporate Personhood
Emptywheel
Wednesday January 5, 2011
http://emptywheel.firedoglake.com/2011/01/05/scalia-kills-corporate-personhood
Saturday, July 12, 2008
Americans have right to guns under landmark ruling
http://www.reuters.com/article/topNews/idUSWBT00928420080626
Americans have right to guns under landmark ruling
Fri Jun 27, 2008
By James Vicini
WASHINGTON (Reuters) - Individual Americans have a right to own guns, the Supreme Court ruled on Thursday for the first time in the country's history, striking down a strict gun control law in the U.S. capital.
The landmark 5-4 ruling marked the first time in nearly 70 years the high court has addressed the Second Amendment of the U.S. Constitution. It rejected the argument the right to keep and bear arms was tied to service in a state militia.
Justice Antonin Scalia said for the majority the Second Amendment protects an individual right to possess a firearm unconnected with militia service and to use it for traditional lawful purposes, such as self-defense in the home.
However, he said the new right was not unlimited.
The court struck down two parts of the country's strictest gun control law adopted in Washington, D.C., 32 years ago -- the ban on private handgun possession and the requirement that firearms kept at home be unloaded and disassembled or bound by a trigger lock.
The ruling marked the first time the court has struck down a gun control law for violating the Second Amendment.
The ruling won praise from President George W. Bush, Republican presidential candidate John McCain and Wayne LaPierre of the politically powerful National Rifle Association, who said, "This is a great moment in American history."
It drew fire from gun control groups, which warned of new legal attacks on existing gun laws, and some Democrats in Congress like Sen. Dianne Feinstein, who said the decision "opens this nation to a dramatic lack of safety."
The four liberal dissenting justices warned of the ruling's consequences. "The decision threatens to throw into doubt the constitutionality of gun laws throughout the United States," Justice Stephen Breyer said.
Although an individual now has a constitutional right to own guns, that new right is not unlimited, wrote Scalia, a hunter.
He said the ruling should not be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill or on laws forbidding the carrying of firearms in places like schools and government buildings or laws imposing conditions on gun sales.
The Supreme Court's last review of the Second Amendment came in a five-page discussion in an opinion issued in 1939 that failed to definitively resolve the constitutional issue.
In the 64-page opinion, Scalia said an individual right to bear arms is supported by "the historical narrative" both before and after the Second Amendment's adoption.
"What is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct," he said.
"Few laws in the history of our nation have come close to the severe restriction of the district's handgun ban," Scalia said.
GUN POINTED AT BURGLAR WHILE CALLING POLICE
Scalia said a citizen may prefer may prefer a handgun for home defense because "it can be pointed at a burglar with one hand while the other hand dials the police."
The justices split along conservative-liberal lines in the ruling, one of the most important of the court's current term, in deciding a legal battle over gun rights in America. The ruling came on the last day of the court's 2007-08 term.
Bush's two appointees on the court, Chief Justice John Roberts and Justice Samuel Alito, both voted with the majority in finding an individual right to keep firearms.
Bush said in a statement he applauded the "historic decision today confirming what has always been clear in the Constitution: the Second Amendment protects an individual right to keep and bear firearms."
Republican presidential candidate John McCain applauded the ruling and criticized his Democratic opponent Barack Obama for comments he had made during the political campaign.
"Unlike the elitist view that believes Americans cling to guns out of bitterness, today's ruling recognizes that gun ownership is a fundamental right -- sacred, just as the right to free speech and assembly," McCain said.
"I have always believed that the Second Amendment protects the right of individuals to bear arms," Obama said, "but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common sense, effective safety measures."
The United States is estimated to have the world's highest civilian gun ownership rate. Gun deaths average 80 a day in the United States, 34 of them homicides, according to Centers for Disease Control data.
The ruling was a victory for Dick Anthony Heller, a security guard who lives in a high-crime neighborhood and who wants to keep a handgun in his home for self-defense.
For decades, the meaning of the Second Amendment has been at the heart of a political and legal debate debate over gun control. People have argued whether it guarantees the right to bear arms to individuals or to citizens in a militia.
Written more than 200 years ago, the amendment says, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
In a dissent, parts of which he read from the bench, Justice John Paul Stevens said the court left for future cases the formidable task of defining the scope of permissible gun regulations.
"I fear that the district's policy choice may well be just the first of an unknown number of dominoes to be knocked off the table," Stevens said.
(Additional reporting by Jeremy Pelofsky; Editing by Deborah Charles and David Wiessler)
Americans have right to guns under landmark ruling
Fri Jun 27, 2008
By James Vicini
WASHINGTON (Reuters) - Individual Americans have a right to own guns, the Supreme Court ruled on Thursday for the first time in the country's history, striking down a strict gun control law in the U.S. capital.
The landmark 5-4 ruling marked the first time in nearly 70 years the high court has addressed the Second Amendment of the U.S. Constitution. It rejected the argument the right to keep and bear arms was tied to service in a state militia.
Justice Antonin Scalia said for the majority the Second Amendment protects an individual right to possess a firearm unconnected with militia service and to use it for traditional lawful purposes, such as self-defense in the home.
However, he said the new right was not unlimited.
The court struck down two parts of the country's strictest gun control law adopted in Washington, D.C., 32 years ago -- the ban on private handgun possession and the requirement that firearms kept at home be unloaded and disassembled or bound by a trigger lock.
The ruling marked the first time the court has struck down a gun control law for violating the Second Amendment.
The ruling won praise from President George W. Bush, Republican presidential candidate John McCain and Wayne LaPierre of the politically powerful National Rifle Association, who said, "This is a great moment in American history."
It drew fire from gun control groups, which warned of new legal attacks on existing gun laws, and some Democrats in Congress like Sen. Dianne Feinstein, who said the decision "opens this nation to a dramatic lack of safety."
The four liberal dissenting justices warned of the ruling's consequences. "The decision threatens to throw into doubt the constitutionality of gun laws throughout the United States," Justice Stephen Breyer said.
Although an individual now has a constitutional right to own guns, that new right is not unlimited, wrote Scalia, a hunter.
He said the ruling should not be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill or on laws forbidding the carrying of firearms in places like schools and government buildings or laws imposing conditions on gun sales.
The Supreme Court's last review of the Second Amendment came in a five-page discussion in an opinion issued in 1939 that failed to definitively resolve the constitutional issue.
In the 64-page opinion, Scalia said an individual right to bear arms is supported by "the historical narrative" both before and after the Second Amendment's adoption.
"What is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct," he said.
"Few laws in the history of our nation have come close to the severe restriction of the district's handgun ban," Scalia said.
GUN POINTED AT BURGLAR WHILE CALLING POLICE
Scalia said a citizen may prefer may prefer a handgun for home defense because "it can be pointed at a burglar with one hand while the other hand dials the police."
The justices split along conservative-liberal lines in the ruling, one of the most important of the court's current term, in deciding a legal battle over gun rights in America. The ruling came on the last day of the court's 2007-08 term.
Bush's two appointees on the court, Chief Justice John Roberts and Justice Samuel Alito, both voted with the majority in finding an individual right to keep firearms.
Bush said in a statement he applauded the "historic decision today confirming what has always been clear in the Constitution: the Second Amendment protects an individual right to keep and bear firearms."
Republican presidential candidate John McCain applauded the ruling and criticized his Democratic opponent Barack Obama for comments he had made during the political campaign.
"Unlike the elitist view that believes Americans cling to guns out of bitterness, today's ruling recognizes that gun ownership is a fundamental right -- sacred, just as the right to free speech and assembly," McCain said.
"I have always believed that the Second Amendment protects the right of individuals to bear arms," Obama said, "but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common sense, effective safety measures."
The United States is estimated to have the world's highest civilian gun ownership rate. Gun deaths average 80 a day in the United States, 34 of them homicides, according to Centers for Disease Control data.
The ruling was a victory for Dick Anthony Heller, a security guard who lives in a high-crime neighborhood and who wants to keep a handgun in his home for self-defense.
For decades, the meaning of the Second Amendment has been at the heart of a political and legal debate debate over gun control. People have argued whether it guarantees the right to bear arms to individuals or to citizens in a militia.
Written more than 200 years ago, the amendment says, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
In a dissent, parts of which he read from the bench, Justice John Paul Stevens said the court left for future cases the formidable task of defining the scope of permissible gun regulations.
"I fear that the district's policy choice may well be just the first of an unknown number of dominoes to be knocked off the table," Stevens said.
(Additional reporting by Jeremy Pelofsky; Editing by Deborah Charles and David Wiessler)
Thursday, July 10, 2008
Supreme Court restores habeas corpus
http://www.salon.com/opinion/greenwald/2008/06/12/boumediene/index.html
Glenn Greenwald
Thursday June 12, 2008
Supreme Court restores habeas corpus, strikes down key part of Military Commissions Act
In a major rebuke to the Bush administration's theories of presidential power -- and in an equally stinging rebuke to the bipartisan political class which has supported the Bush detention policies -- the U.S. Supreme Court today, in a 5-4 decision, declared Section 7 of the Military Commissions Act of 2006 unconstitutional. The Court struck down that section of the MCA because it purported to abolish the writ of habeas corpus -- the means by which a detainee challenges his detention in a court -- despite the fact that the Constitution permits suspension of that writ only "in Cases of Rebellion or Invasion."
As a result, Guantanamo detainees accused of being "enemy combatants" have the right to challenge the validity of their detention in a full-fledged U.S. federal court proceeding. The ruling today is the first time in U.S. history that the Court has ruled that detainees held by the U.S. Government in a place where the U.S. does not exercise formal sovereignty (Cuba technically is sovereign over Guantanamo) are nonetheless entitled to the Constitutional guarantee of habeas corpus whenever they are held in a place where the U.S. exercises effective control.
In upholding the right of habeas corpus for Guantanamo detainees, the Court found that the "Combatant Status Review Tribunals" process ("CSRT") offered to Guantanamo detainees -- mandated by the John-McCain-sponsored Detainee Treatment Act of 2005 -- does not constitute a constitutionally adequate substitute for habeas corpus. To the contrary, the Court found that such procedures -- which have long been criticized as sham hearings due to the fact that defendants cannot have a lawyer present, government evidence is presumptively valid, and defendants are prevented from challenging (and sometimes even knowing about) much of the evidence against them -- "fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review." Those grave deficiencies in the CSRT process mean that "there is considerable risk of error" in the tribunals' conclusions.
The Court's ruling was grounded in its recognition that the guarantee of habeas corpus was so central to the Founding that it was one of the few individual rights included in the Constitution even before the Bill of Rights was enacted. As the Court put it: "the Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom." The Court noted that freedom from arbitrary or baseless imprisonment was one of the core rights established by the 13th Century Magna Carta, and it is the writ of habeas corpus which is the means for enforcing that right. Once habeas corpus is abolished -- as the Military Commissions Act sought to do -- then we return to the pre-Magna Carta days where the Government is free to imprison people with no recourse.
In its decision, the Court emphasized (and revived) some of the most vital principles of our system of Government which have been trampled upon and degraded over the last seven years (emphasis added):
The Framers' inherent distrust of government power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. . . .
Where a person is detained by executive order rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing. . . . The habeas court must have sufficient authority to conduct a meaningful review of both the cause of detention and the Executive's power to detain. . . .
Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to separation of powers. . . .
The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system, they are reconciled within the framework of law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, part of that law.
In ruling that the CSRTs woefully fail to provide the constitutionally guaranteed safeguards, the Court quoted Alexander Hamilton's Federalist No. 84: "The practice of arbitrary imprisonments, in all ages, is the favorite and most formidable instruments of tyranny." It is that deeply tyrannical practice -- implemented by the Bush administration and authorized by a bipartisan act of Congress -- which the U.S. Supreme Court, today, struck down.
The Military Commissions Act of 2006 was -- and remains -- one of the great stains on our national political character. It was passed by a substantial majority in the Senate (65-34) with the support of every single Senate Republican (except Chafee) and 12 Senate Democrats. No filibuster was even attempted. It passed by a similar margin in the House, where 34 Democrats joined 219 Republicans to enact it. One of the most extraordinary quotes of the post-9/11 era came from GOP Sen. Arlen Specter, who said at the time that that the Military Commissions Act -- because it explicitly barred federal courts from hearing habeas corpus petitions brought by Guantanamo detainees -- "sets back basic rights by some 900 years" and was "patently unconstitutional on its face" -- and Specter then proceeded to vote for it.
The greatest victim of the 9/11 attack has been our core, defining constitutional liberties. Of all the powers seized by this administration in the name of keeping us Safe, the power to imprison people indefinitely with no charges and no real process is the most pernicious.
Passage of the Military Commissions Act was spearheaded by John McCain, who was anointed by cowardly Senate Democrats to speak for them and negotiate with the White House. Once McCain blessed the Military Commissions Act, its passage was assured. Barack Obama voted against it, and once its passage appeared certain, Obama offered an amendment to limit it to five years. That amendment failed, rendering the MCA the law of the land without any time limits.
The Supreme Court today did what the Founders envisioned it should do: it protected our basic constitutional guarantees from erosion and assault by a corrupt majority within the political class. In so doing, the Court took a mild though important step in reversing some of the worst and most tyrannical excesses of the last seven years. Patrick Henry warned long ago of the unique dangers of allowing executive imprisonment without meaningful process:
Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings -- give us that precious jewel, and you may take everything else! . . . Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.
In his concurring opinion in Brown v. Allen (1953), Justice Jackson wrote:
Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.
Our political and media elite were more than willing -- they were eager -- to relinquish that right to the President in the name of keeping us Safe from Terrorists. Today, the U.S. Supreme Court, in what will be one of the most celebrated landmark rulings of this generation, re-instated that basic right, and in so doing, restored one of the most critical safeguards against the very tyranny this country was founded to prevent.
UPDATE: Three of the five Justices in the majority -- John Paul Stevens (age 88), Ruth Bader Ginsburg (age 75) and David Souter (age 68) -- are widely expected by court observers to retire or otherwise leave the Court in the first term of the next President. By contrast, the four judges who dissented -- Antonin Scalia, Clarence Thomas, John Roberts and Sam Alito -- are expected to stay right where they are for many years to come.
John McCain has identified Roberts and Alito as ideal justices of the type he would nominate, while Barack Obama has identified Stephen Breyer, David Souter and Ginsberg (all in the majority today). It's not hyperbole to say that, from Supreme Court appointments alone, our core constitutional protections could easily depend upon the outcome of the 2008 election.
Friday, May 9, 2008
Tortured Logic
http://www.pensitoreview.com/2008/04/30/tortured-logic-scalia-torture-is-not-punishment/
Tortured Logic: Scalia Says ‘Torture’ Is Not Unconstitutional Because It Is Not ‘Punishment’
Jon Ponder Apr. 30, 2008
The meaning of the Eighth Amendment to the Constitution could not be clearer:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
And yet, beginning in 2002, the most senior members of the Bush administration, including Dick Cheney, Sec. of State Colin Powell, National Security Adviser Condoleezza Rice, Attorney Gen. John Ashcroft and others, met dozens of times to draft a set of torture guidelines for use by CIA interrogators. It’s no wonder that Jonathan Turley, a strong advocate of impeaching Pres. Clinton, called their actions a war crime and compared their sessions to a meeting of gangster Tony Soprano’s Bada Bing Club.
On “60 Minutes” Last Sunday, Supreme Court Justice Antonin “Nino” Scalia offered a new and, well, tortured rationale for the legality of what Bush has euphemistically called “advanced interrogation techniques”:
STAHL: If someone’s in custody, as in Abu Ghraib, and they are brutalized, by a law enforcement person — if you listen to the expression “cruel and unusual punishment,” doesn’t that apply?
SCALIA: No. To the contrary. You think — Has anybody ever referred to torture as punishment? I don’t think so.
STAHL: Well I think if you’re in custody, and you have a policeman who’s taken you into custody–
SCALIA: And you say he’s punishing you? What’s he punishing you for? … When he’s hurting you in order to get information from you, you wouldn’t say he’s punishing you. What is he punishing you for?
As often happens, Keith Olbermann speaks for every sane American:
The second most senior associate justice on Mr. Bush‘s Supreme Court, Antonin Scalia, on TV now repeating in essence what he said earlier, that torture is not really as the Constitution prohibits, cruel and unusual punishment…
So you can torture the innocent or not yet proved guilty but you can‘t punish the guilty with torture? You don‘t see any logical inconsistency in that idea? The concept of punishment being in and of itself, torture or vice versa, that isn’t very pretty obvious to you? You, still there, Justice buddy? OK. Not only do I want to see your diploma, now, I want to see your grade point average.
Media types and conservatives still deride Bill Clinton for saying in a deposition in a civil lawsuit a decade ago, “It depends on what the meaning of the word ‘is’ is.” And yet, here we have a Supreme Court justice playing semantics over the definition of torture — and the media has barely taken notice.
Tortured Logic: Scalia Says ‘Torture’ Is Not Unconstitutional Because It Is Not ‘Punishment’
Jon Ponder Apr. 30, 2008
The meaning of the Eighth Amendment to the Constitution could not be clearer:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
And yet, beginning in 2002, the most senior members of the Bush administration, including Dick Cheney, Sec. of State Colin Powell, National Security Adviser Condoleezza Rice, Attorney Gen. John Ashcroft and others, met dozens of times to draft a set of torture guidelines for use by CIA interrogators. It’s no wonder that Jonathan Turley, a strong advocate of impeaching Pres. Clinton, called their actions a war crime and compared their sessions to a meeting of gangster Tony Soprano’s Bada Bing Club.
On “60 Minutes” Last Sunday, Supreme Court Justice Antonin “Nino” Scalia offered a new and, well, tortured rationale for the legality of what Bush has euphemistically called “advanced interrogation techniques”:
STAHL: If someone’s in custody, as in Abu Ghraib, and they are brutalized, by a law enforcement person — if you listen to the expression “cruel and unusual punishment,” doesn’t that apply?
SCALIA: No. To the contrary. You think — Has anybody ever referred to torture as punishment? I don’t think so.
STAHL: Well I think if you’re in custody, and you have a policeman who’s taken you into custody–
SCALIA: And you say he’s punishing you? What’s he punishing you for? … When he’s hurting you in order to get information from you, you wouldn’t say he’s punishing you. What is he punishing you for?
As often happens, Keith Olbermann speaks for every sane American:
The second most senior associate justice on Mr. Bush‘s Supreme Court, Antonin Scalia, on TV now repeating in essence what he said earlier, that torture is not really as the Constitution prohibits, cruel and unusual punishment…
So you can torture the innocent or not yet proved guilty but you can‘t punish the guilty with torture? You don‘t see any logical inconsistency in that idea? The concept of punishment being in and of itself, torture or vice versa, that isn’t very pretty obvious to you? You, still there, Justice buddy? OK. Not only do I want to see your diploma, now, I want to see your grade point average.
Media types and conservatives still deride Bill Clinton for saying in a deposition in a civil lawsuit a decade ago, “It depends on what the meaning of the word ‘is’ is.” And yet, here we have a Supreme Court justice playing semantics over the definition of torture — and the media has barely taken notice.
Friday, March 14, 2008
Justice Scalia's Two-Front War
http://www.prospect.org/cs/articles?article=justice_scalias_two_front_war
Justice Scalia's Two-Front War
Despite lip service to "judicial restraint" Scalia has been waging a war against consumer product regulation as well as protections for workers, at both the state and federal level.
Simon Lazarus and Harper Jean Tobin
March 6, 2008
Modern American conservatives are widely perceived as reflexively pro-states' rights. But as long ago as 1982, movement icon Antonin Scalia, then a University of Chicago law professor, warned members of the fledgling Federalist Society to shed such myopic nostalgia. Conservatives' underlying goal, he said, is "market freedom." While that goal surely justifies opposition to federal economic intervention, he observed, it should also entail actively exploiting federal authority to stop objectionable meddling by state governments. He counseled conservatives to "fight a two-front war" against overzealous regulation at the state no less than the federal levels: "[W]ith all these targets out there," he noted, there must be "at least a few targets to be shot at."
These past two weeks, Justice Scalia and his fellow conservatives on the Supreme Court could be seen merrily shooting at regulatory targets on both the federal and state "fronts." With respect to the latter, they were focused on a target prophetically singled out in his Federalist Society speech: state laws holding manufacturers liable for "design defects," which "subject interstate businesses to greatly increased damages." Scalia's 1982 agenda contemplated federal legislation to curb state regulatory excess, in keeping with the traditional conservative nostrum that major policy decisions should be made by the people's elected representatives, not unaccountable "activist" judges. But after a quarter century of service on the federal bench, "judicial restraint" has been dropped from Scalia's playbook. He and his allies appear on course to reverse generations of precedent and, with scant or no authorization from Congress, shut down all 50 states' tort law regimes insofar as they apply to medical devices, drugs, or other products regulated by the federal Food and Drug Administration.
Scalia scored his most direct bull's-eye on Wednesday, Feb. 20, when he wrote the Court's opinion in a case, Riegel v. Medtronic, which forecloses any legal remedies for individuals who are injured by defectively designed medical devices, if those devices received premarket approval from the FDA. The 1976 federal law that created the approval process expressly barred states from imposing "requirements" on medical device manufacturers "different from or in addition to" those prescribed by the FDA. The Court held that this preclusion of inconsistent state regulation -- what the Court calls "pre-emption" -- applied not only to state statutes and regulations -- which the 1976 Congress plainly intended to pre-empt -- but also to common-law tort suits against FDA-approved devices, about which the law was silent. In committee reports, hearings, and debate about the bill, its supporters had repeatedly made clear that Congress considered the new federal prescreening law a supplement to traditional state common-law remedies -- not a replacement.
The two principal sponsors of the law, Sen. Ted Kennedy and Rep. Henry Waxman, emphasized this point in a brief to the Court. Nevertheless, not only Scalia but seven of his colleagues, including "liberal" Justices Stevens, Souter, and Breyer, found Kennedy's and Waxman's plea unpersuasive; they concluded that, whatever Congress subjectively "intended," it wrote the term "requirements" into the statute, and it was illogical to conclude that that covered only certain types of legal requirements and not others. In what is fast becoming a trend in pre-emption cases, one of those justices, Stevens, wrote an opinion reluctantly concurring in the decision in light of the Court's accumulating precedents, even though the result was not what Congress actually intended.
Given Congress' less-than-punctilious drafting, the outcome of Riegel v. Medtronic was not surprising, in and of itself. But Scalia's aggressive opinion is truly startling and portentous. Until now, even when the Court has decided to pre-empt -- i.e., invalidate -- state laws in particular cases, it has at least paid lip service to affording state laws a rebuttable presumption against preemption, particularly regarding traditional areas of state and local concern like the common law of negligence or "torts." In Scalia's Riegel opinion, this presumption has been replaced by open hostility to state common-law doctrines empowering juries to award damages, which Scalia calls "less deserving of protection" than statutes or regulations.
Also absent from Riegel is the Court's usual boilerplate nod to congressional intent as the "touchstone" of pre-emption analysis. Scalia fairly sneered that it is "not our job to speculate" on Congress' purpose, despite the historical fact that, in passing the 1976 medical-device law, Congress plainly sought to strengthen incentives for safe manufacturing practices. Eliminating the strongest such incentive – state tort liability – could hardly have been a result Congress silently intended. The bottom line is that Scalia and his fellow conservatives, sure of their control of the Court, have in effect proclaimed their freedom to ignore altogether the goals that drove Congress to enact laws, and to choose interpretations that contradict or undermine those goals.
These harbingers of a tectonic shift away from judicial deference to Congress or the states were reinforced five days after the Riegel decision, on Monday, Feb. 25, when the justices heard oral argument in a negligence suit against the manufacturer of a diabetes drug called Rezulin, Warner-Lambert v. Kent. Rezulin had originally been approved but subsequently was forced off the market by the FDA, after patients experienced serious adverse liver-related effects. The Court's animated questioning revealed no hint of traditional judicial deference to Congress or the states. The only issue that engaged the justices was a stark question of public policy -- whether it makes more sense to authorize state courts and juries to resolve negligence claims for damages or to vest exclusive authority in the FDA's regime for regulating drugs. Scalia again derided the wisdom of juries, and Justice Kennedy worried that depositions and document requests for lawsuits would be too burdensome on FDA officials. They and some of their colleagues seem quite prepared to make these choices without any realistic regard for the view of the New Deal Congress that first established the FDA's drug-regulatory regime in 1938.
As it happened, Chief Justice Roberts did not participate in Warner-Lambert for ethical reasons, which left the Court divided 4-4. The effect of this tie vote is to allow the individual lawsuit at issue in that case to proceed, but without setting a precedent affecting future cases. In view of Roberts’ skepticism during the Riegel oral argument about suits against FDA-approved pharmaceutical products, there appears to be a majority of Justices prepared to eliminate altogether what the plaintiffs' lawyer, Alison Zieve, called "the traditional tort system as it exists in most every state" for compensating victims of negligently manufactured or marketed prescription drugs.
The justices' readiness to contemplate wiping out state tort-law protections seems unaffected by the fact that tort remedies have remained in place during the entire 70 years since the governing federal statute was enacted. Nor does it appear of interest to Justice Scalia and his allies that the 1938 law, unlike the 1976 medical-device pre-market screening law at issue in the Riegel case, contained no provision requiring pre-emption of anything. Warner-Lambert thus sets a troubling tone for next term, when the Court will hear a case that will determine whether, in fact, the entire tort system is pre-empted when it comes to prescription drugs. No wonder that a Web site by lawyers who defend product liability suits against pharmaceutical companies has already speculated, only half in jest, that this entire line of work will soon disappear.
While Scalia and company show increasing fervor for reading federal laws as broadly as possible when the result is pre-empting state product liability at the behest of corporate defendants, they employ a decidedly different set of interpretive principles when interpreting federal laws that provide redress for workers. As noted in "Repealing the 20th Century," in the December 2007 issue of The American Prospect, this judicial doublethink has made a mockery of the law governing workers' health and pension plans, eliminating state remedies for a host of plan misconduct with broad-ranging preemption, and simultaneously whittling federal remedies down to nearly nothing (a situation basically unchanged by a modest, though encouraging pension decision this term). In two oral arguments last week -- Gomez-Perez v. Potter and CBOCS West v. Humphries -- these justices showed equal enthusiasm for similarly cramped interpretations of the nation's workplace-discrimination laws. Even the Bush administration's lawyers couldn't keep up with demands by the justices to ignore well-settled precedents.
In both of these cases, workers sued because their employers had retaliated against them for complaining that they were targets of age discrimination. Although some of the nation's anti-discrimination laws expressly include the word "retaliation" and some do not, the courts have long treated them all as prohibiting retribution against workers who complain or blow the whistle on discrimination. In 2005, the high court affirmed in Jackson v. Birmingham Board of Education that the concept of discrimination includes retaliation, so that including it separately in statutes is unnecessary. Moreover, as Justice Breyer observed during the argument in one of last week's cases, these laws simply will not work if employees are not free to challenge discrimination. Even the Bush Justice Department, to its credit, has generally recognized the good sense of this view in its advocacy before the Court.
Nevertheless, the Court now seems poised to read retaliation protections for workers right out of federal civil-rights laws. Of the 2005 decision, authored by now-retired Justice O'Connor, Justice Scalia crowed that "it didn't make any sense then" and "it doesn't make any sense" now. By thus effectively licensing employers to repress challenges to discriminatory practices, the Court's conservatives will further the damage wrought by the already-notorious May 2007 decision in Ledbetter v. Goodyear Tire & Rubber, in which they barred all suits to redress discriminatory pay not filed within four months of the employer's discriminatory act.
Indeed, Justice Kennedy and Chief Justice Roberts joined Scalia in connecting the narrowing of retaliation safeguards to their more general campaign to close courthouse doors to individuals seeking to enforce their rights under federal laws. They suggested that redress for retaliation was barred because the statute in question lacks an explicit right to sue – even though such suits have been accepted by the Court for 40 years. "We inferred that cause of action in the bad old days," Scalia mocked, "when we were inferring causes of action all over the place." Lawyers on both sides of these cases, having assumed the existence of a well-settled right to sue, were visibly caught off guard by the conservative justices' stony disdain for those precedents and the essential role they have long played in making statutory guarantees of equal opportunity a workplace reality. When Roberts used this line of reasoning to question the validity of a 1969 decision on which the Court had heavily relied in its 2005 Jackson decision, Solicitor General Paul Clement protested: "It -- I mean, it's hard to say. I mean, you know, Jackson was just three terms ago, Mr. Chief Justice."
During William Rehnquist's years as Chief Justice, Scalia often expressed alienation from even what most observers considered the largely conservative thrust of that Court's jurisprudence. In one 1996 dissent he lashed out: "Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize." The arrogant bluster on display these past two weeks shows how confident he is that these "bad old days" are behind him. And with good reason. So far this term, Scalia has disagreed with only one out of nearly 20 decisions issued by the Court -- a distinction only he and Chief Justice Roberts can claim. He has stayed the course and, finally, his two-front war appears to be going well.
Simon Lazarus is public-policy counsel to the National Senior Citizens Law Center.
Justice Scalia's Two-Front War
Despite lip service to "judicial restraint" Scalia has been waging a war against consumer product regulation as well as protections for workers, at both the state and federal level.
Simon Lazarus and Harper Jean Tobin
March 6, 2008
Modern American conservatives are widely perceived as reflexively pro-states' rights. But as long ago as 1982, movement icon Antonin Scalia, then a University of Chicago law professor, warned members of the fledgling Federalist Society to shed such myopic nostalgia. Conservatives' underlying goal, he said, is "market freedom." While that goal surely justifies opposition to federal economic intervention, he observed, it should also entail actively exploiting federal authority to stop objectionable meddling by state governments. He counseled conservatives to "fight a two-front war" against overzealous regulation at the state no less than the federal levels: "[W]ith all these targets out there," he noted, there must be "at least a few targets to be shot at."
These past two weeks, Justice Scalia and his fellow conservatives on the Supreme Court could be seen merrily shooting at regulatory targets on both the federal and state "fronts." With respect to the latter, they were focused on a target prophetically singled out in his Federalist Society speech: state laws holding manufacturers liable for "design defects," which "subject interstate businesses to greatly increased damages." Scalia's 1982 agenda contemplated federal legislation to curb state regulatory excess, in keeping with the traditional conservative nostrum that major policy decisions should be made by the people's elected representatives, not unaccountable "activist" judges. But after a quarter century of service on the federal bench, "judicial restraint" has been dropped from Scalia's playbook. He and his allies appear on course to reverse generations of precedent and, with scant or no authorization from Congress, shut down all 50 states' tort law regimes insofar as they apply to medical devices, drugs, or other products regulated by the federal Food and Drug Administration.
Scalia scored his most direct bull's-eye on Wednesday, Feb. 20, when he wrote the Court's opinion in a case, Riegel v. Medtronic, which forecloses any legal remedies for individuals who are injured by defectively designed medical devices, if those devices received premarket approval from the FDA. The 1976 federal law that created the approval process expressly barred states from imposing "requirements" on medical device manufacturers "different from or in addition to" those prescribed by the FDA. The Court held that this preclusion of inconsistent state regulation -- what the Court calls "pre-emption" -- applied not only to state statutes and regulations -- which the 1976 Congress plainly intended to pre-empt -- but also to common-law tort suits against FDA-approved devices, about which the law was silent. In committee reports, hearings, and debate about the bill, its supporters had repeatedly made clear that Congress considered the new federal prescreening law a supplement to traditional state common-law remedies -- not a replacement.
The two principal sponsors of the law, Sen. Ted Kennedy and Rep. Henry Waxman, emphasized this point in a brief to the Court. Nevertheless, not only Scalia but seven of his colleagues, including "liberal" Justices Stevens, Souter, and Breyer, found Kennedy's and Waxman's plea unpersuasive; they concluded that, whatever Congress subjectively "intended," it wrote the term "requirements" into the statute, and it was illogical to conclude that that covered only certain types of legal requirements and not others. In what is fast becoming a trend in pre-emption cases, one of those justices, Stevens, wrote an opinion reluctantly concurring in the decision in light of the Court's accumulating precedents, even though the result was not what Congress actually intended.
Given Congress' less-than-punctilious drafting, the outcome of Riegel v. Medtronic was not surprising, in and of itself. But Scalia's aggressive opinion is truly startling and portentous. Until now, even when the Court has decided to pre-empt -- i.e., invalidate -- state laws in particular cases, it has at least paid lip service to affording state laws a rebuttable presumption against preemption, particularly regarding traditional areas of state and local concern like the common law of negligence or "torts." In Scalia's Riegel opinion, this presumption has been replaced by open hostility to state common-law doctrines empowering juries to award damages, which Scalia calls "less deserving of protection" than statutes or regulations.
Also absent from Riegel is the Court's usual boilerplate nod to congressional intent as the "touchstone" of pre-emption analysis. Scalia fairly sneered that it is "not our job to speculate" on Congress' purpose, despite the historical fact that, in passing the 1976 medical-device law, Congress plainly sought to strengthen incentives for safe manufacturing practices. Eliminating the strongest such incentive – state tort liability – could hardly have been a result Congress silently intended. The bottom line is that Scalia and his fellow conservatives, sure of their control of the Court, have in effect proclaimed their freedom to ignore altogether the goals that drove Congress to enact laws, and to choose interpretations that contradict or undermine those goals.
These harbingers of a tectonic shift away from judicial deference to Congress or the states were reinforced five days after the Riegel decision, on Monday, Feb. 25, when the justices heard oral argument in a negligence suit against the manufacturer of a diabetes drug called Rezulin, Warner-Lambert v. Kent. Rezulin had originally been approved but subsequently was forced off the market by the FDA, after patients experienced serious adverse liver-related effects. The Court's animated questioning revealed no hint of traditional judicial deference to Congress or the states. The only issue that engaged the justices was a stark question of public policy -- whether it makes more sense to authorize state courts and juries to resolve negligence claims for damages or to vest exclusive authority in the FDA's regime for regulating drugs. Scalia again derided the wisdom of juries, and Justice Kennedy worried that depositions and document requests for lawsuits would be too burdensome on FDA officials. They and some of their colleagues seem quite prepared to make these choices without any realistic regard for the view of the New Deal Congress that first established the FDA's drug-regulatory regime in 1938.
As it happened, Chief Justice Roberts did not participate in Warner-Lambert for ethical reasons, which left the Court divided 4-4. The effect of this tie vote is to allow the individual lawsuit at issue in that case to proceed, but without setting a precedent affecting future cases. In view of Roberts’ skepticism during the Riegel oral argument about suits against FDA-approved pharmaceutical products, there appears to be a majority of Justices prepared to eliminate altogether what the plaintiffs' lawyer, Alison Zieve, called "the traditional tort system as it exists in most every state" for compensating victims of negligently manufactured or marketed prescription drugs.
The justices' readiness to contemplate wiping out state tort-law protections seems unaffected by the fact that tort remedies have remained in place during the entire 70 years since the governing federal statute was enacted. Nor does it appear of interest to Justice Scalia and his allies that the 1938 law, unlike the 1976 medical-device pre-market screening law at issue in the Riegel case, contained no provision requiring pre-emption of anything. Warner-Lambert thus sets a troubling tone for next term, when the Court will hear a case that will determine whether, in fact, the entire tort system is pre-empted when it comes to prescription drugs. No wonder that a Web site by lawyers who defend product liability suits against pharmaceutical companies has already speculated, only half in jest, that this entire line of work will soon disappear.
While Scalia and company show increasing fervor for reading federal laws as broadly as possible when the result is pre-empting state product liability at the behest of corporate defendants, they employ a decidedly different set of interpretive principles when interpreting federal laws that provide redress for workers. As noted in "Repealing the 20th Century," in the December 2007 issue of The American Prospect, this judicial doublethink has made a mockery of the law governing workers' health and pension plans, eliminating state remedies for a host of plan misconduct with broad-ranging preemption, and simultaneously whittling federal remedies down to nearly nothing (a situation basically unchanged by a modest, though encouraging pension decision this term). In two oral arguments last week -- Gomez-Perez v. Potter and CBOCS West v. Humphries -- these justices showed equal enthusiasm for similarly cramped interpretations of the nation's workplace-discrimination laws. Even the Bush administration's lawyers couldn't keep up with demands by the justices to ignore well-settled precedents.
In both of these cases, workers sued because their employers had retaliated against them for complaining that they were targets of age discrimination. Although some of the nation's anti-discrimination laws expressly include the word "retaliation" and some do not, the courts have long treated them all as prohibiting retribution against workers who complain or blow the whistle on discrimination. In 2005, the high court affirmed in Jackson v. Birmingham Board of Education that the concept of discrimination includes retaliation, so that including it separately in statutes is unnecessary. Moreover, as Justice Breyer observed during the argument in one of last week's cases, these laws simply will not work if employees are not free to challenge discrimination. Even the Bush Justice Department, to its credit, has generally recognized the good sense of this view in its advocacy before the Court.
Nevertheless, the Court now seems poised to read retaliation protections for workers right out of federal civil-rights laws. Of the 2005 decision, authored by now-retired Justice O'Connor, Justice Scalia crowed that "it didn't make any sense then" and "it doesn't make any sense" now. By thus effectively licensing employers to repress challenges to discriminatory practices, the Court's conservatives will further the damage wrought by the already-notorious May 2007 decision in Ledbetter v. Goodyear Tire & Rubber, in which they barred all suits to redress discriminatory pay not filed within four months of the employer's discriminatory act.
Indeed, Justice Kennedy and Chief Justice Roberts joined Scalia in connecting the narrowing of retaliation safeguards to their more general campaign to close courthouse doors to individuals seeking to enforce their rights under federal laws. They suggested that redress for retaliation was barred because the statute in question lacks an explicit right to sue – even though such suits have been accepted by the Court for 40 years. "We inferred that cause of action in the bad old days," Scalia mocked, "when we were inferring causes of action all over the place." Lawyers on both sides of these cases, having assumed the existence of a well-settled right to sue, were visibly caught off guard by the conservative justices' stony disdain for those precedents and the essential role they have long played in making statutory guarantees of equal opportunity a workplace reality. When Roberts used this line of reasoning to question the validity of a 1969 decision on which the Court had heavily relied in its 2005 Jackson decision, Solicitor General Paul Clement protested: "It -- I mean, it's hard to say. I mean, you know, Jackson was just three terms ago, Mr. Chief Justice."
During William Rehnquist's years as Chief Justice, Scalia often expressed alienation from even what most observers considered the largely conservative thrust of that Court's jurisprudence. In one 1996 dissent he lashed out: "Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize." The arrogant bluster on display these past two weeks shows how confident he is that these "bad old days" are behind him. And with good reason. So far this term, Scalia has disagreed with only one out of nearly 20 decisions issued by the Court -- a distinction only he and Chief Justice Roberts can claim. He has stayed the course and, finally, his two-front war appears to be going well.
Simon Lazarus is public-policy counsel to the National Senior Citizens Law Center.
Sunday, March 2, 2008
At the High Court, Damage Control
http://www.washingtonpost.com/wp-dyn/content/article/2008/02/27/AR2008022703207.html
At the High Court, Damage Control
By Dana Milbank
Thursday, February 28, 2008; A02
Chief Justice John Roberts was pained.
Exxon Mobil, the giant oil corporation appearing before the Supreme Court yesterday, had earned a profit of nearly $40 billion in 2006, the largest ever reported by a U.S. company -- but that's not what bothered Roberts. What bothered the chief justice was that Exxon was being ordered to pay $2.5 billion -- roughly three weeks' worth of profits -- for destroying a long swath of the Alaska coastline in the largest oil spill in American history.
"So what can a corporation do to protect itself against punitive-damages awards such as this?" Roberts asked in court.
The lawyer arguing for the Alaska fishermen affected by the spill, Jeffrey Fisher, had an idea. "Well," he said, "it can hire fit and competent people."
The rare sound of laughter rippled through the august chamber. The chief justice did not look amused.
Perhaps, though, his consternation was misplaced. Everybody knows the wheels of justice turn slowly, but in the case of the 1989 Exxon Valdez spill, things have dragged on so long that Lady Justice's blindness could reasonably be attributed to cataracts.
Nineteen years after the Valdez ran aground in Prince William Sound and spilled 11 million gallons of oil, the 32,000 plaintiffs -- mostly fishermen, cannery workers and Native Alaskans -- have received no punitive damages from Exxon.
A jury awarded them $5 billion in punitive damages -- a record level, for a record disaster -- and an appeals court cut that in half. Now, the Supreme Court seems inclined to deal another insult to the victims (as many as a fifth of whom have already died) by cutting the award further.
Arguing for the Alaskans, Fisher, a tall and lanky Stanford professor with unruly gray hair, pointed out to the justices that the spill "destroyed an entire regional economy." Yet Exxon fired only one person, Capt. Joseph Hazelwood, who even the oil company admitted was drunk at the time of the accident, while executives received bonuses and pay raises. "What you have today are 32,000 plaintiffs standing before this court, each of whom have received only $15,000 for having their lives and livelihood destroyed and haven't received a dime of emotional-distress damages," Fisher argued.
Several justices, however, seemed more concerned about the emotional distress of the Exxon executives. "I assume the test is the person has to be high enough that it justifies holding the entire corporation" responsible," Antonin Scalia said, "and I doubt whether a captain is high enough."
Justice Anthony Kennedy, wagging his finger at Fisher as he challenged the lawyer's argument, charged that "the corporation's responsibility or complicity or culpability is simply not relevant under your theory of the case."
Roberts seemed the most agitated as he argued that Exxon wasn't responsible for the captain's unauthorized drunkenness. "I don't see what more a corporation can do," he said. "What more can the corporation do other than say 'Here is our policies' and try to implement them?"
Fisher tried to deflect some of the more barbed questions -- "I don't want to act like a dog chasing his tail here, Justice Kennedy . . . I'm not going to fight you on that" -- but it was clear that the court's main motive in hearing this case was to cut the jury award. When Fisher said he thought the justices had agreed to hear the case because of an unsettled aspect of maritime law, Scalia cut him off.
"That," the justice said, "and $3.5 billion."
One thing working in the Valdez victims' favor: Justice Samuel Alito, an Exxon shareholder, recused himself from the case. Also in the plaintiffs' favor: No justice, with the possible exception of Scalia and the ceiling-staring Clarence Thomas, liked Exxon's assertion that no punitive damage is legitimate.
Ruth Ginsburg pointed to the evidence that "Exxon knew that this captain had a severe alcohol problem, and yet, they let him stay on voyage after voyage and did nothing about it."
Even Roberts seemed skeptical when he asked Exxon's lawyer, former solicitor general Walter Dellinger: "So you have to have a shareholder driving the boat before you can assess liability?"
Dellinger licked his lips frequently and drank generously from his water glass. "Exxon gained nothing by what went wrong and paid dearly for it," he pleaded to the justices.
It seemed likely Exxon would have to pay more for it -- though not terribly much. The court's dealmakers, Kennedy and David Souter, floated the idea that punitive damages could be double the amount of compensatory damages -- about $800 million, instead of the $2.5 billion ordered by the appellate court. Souter wondered aloud whether "we've simply got to come up with a number."
The notion of the justices pulling a number out of thin air seemed a bit too neat for an oil spill that spoiled 1,200 miles of Alaska's coastline. But then the argument had less to do with the dead marine animals and ruined fishermen than with an obscure maritime law case from 1818 called The Amiable Nancy-- or, as Scalia put it, the "Amiable Whatever It Is."
As the justices probed the intricacies of the laws of the sea, Ginsburg discussed Rule 50. Kennedy invoked Instruction 30, Instruction 33 and Instruction 36. Spectators showed evidence of drowsiness. Reporters yawned -- at least until they were jolted awake by an alarming prospect raised by Ginsburg, who spoke about "a new trial" and the "next time around."
A new trial? After 19 years of legal fighting? Out on the plaza after the argument, Brian O'Neill, one of the Alaska victims' lawyers, conceded that, whatever the Supreme Court's ruling, Exxon had already won. "I guess the lesson you learn," he said, "is that if you're big and powerful enough, you can bring the system to a halt."
At the High Court, Damage Control
By Dana Milbank
Thursday, February 28, 2008; A02
Chief Justice John Roberts was pained.
Exxon Mobil, the giant oil corporation appearing before the Supreme Court yesterday, had earned a profit of nearly $40 billion in 2006, the largest ever reported by a U.S. company -- but that's not what bothered Roberts. What bothered the chief justice was that Exxon was being ordered to pay $2.5 billion -- roughly three weeks' worth of profits -- for destroying a long swath of the Alaska coastline in the largest oil spill in American history.
"So what can a corporation do to protect itself against punitive-damages awards such as this?" Roberts asked in court.
The lawyer arguing for the Alaska fishermen affected by the spill, Jeffrey Fisher, had an idea. "Well," he said, "it can hire fit and competent people."
The rare sound of laughter rippled through the august chamber. The chief justice did not look amused.
Perhaps, though, his consternation was misplaced. Everybody knows the wheels of justice turn slowly, but in the case of the 1989 Exxon Valdez spill, things have dragged on so long that Lady Justice's blindness could reasonably be attributed to cataracts.
Nineteen years after the Valdez ran aground in Prince William Sound and spilled 11 million gallons of oil, the 32,000 plaintiffs -- mostly fishermen, cannery workers and Native Alaskans -- have received no punitive damages from Exxon.
A jury awarded them $5 billion in punitive damages -- a record level, for a record disaster -- and an appeals court cut that in half. Now, the Supreme Court seems inclined to deal another insult to the victims (as many as a fifth of whom have already died) by cutting the award further.
Arguing for the Alaskans, Fisher, a tall and lanky Stanford professor with unruly gray hair, pointed out to the justices that the spill "destroyed an entire regional economy." Yet Exxon fired only one person, Capt. Joseph Hazelwood, who even the oil company admitted was drunk at the time of the accident, while executives received bonuses and pay raises. "What you have today are 32,000 plaintiffs standing before this court, each of whom have received only $15,000 for having their lives and livelihood destroyed and haven't received a dime of emotional-distress damages," Fisher argued.
Several justices, however, seemed more concerned about the emotional distress of the Exxon executives. "I assume the test is the person has to be high enough that it justifies holding the entire corporation" responsible," Antonin Scalia said, "and I doubt whether a captain is high enough."
Justice Anthony Kennedy, wagging his finger at Fisher as he challenged the lawyer's argument, charged that "the corporation's responsibility or complicity or culpability is simply not relevant under your theory of the case."
Roberts seemed the most agitated as he argued that Exxon wasn't responsible for the captain's unauthorized drunkenness. "I don't see what more a corporation can do," he said. "What more can the corporation do other than say 'Here is our policies' and try to implement them?"
Fisher tried to deflect some of the more barbed questions -- "I don't want to act like a dog chasing his tail here, Justice Kennedy . . . I'm not going to fight you on that" -- but it was clear that the court's main motive in hearing this case was to cut the jury award. When Fisher said he thought the justices had agreed to hear the case because of an unsettled aspect of maritime law, Scalia cut him off.
"That," the justice said, "and $3.5 billion."
One thing working in the Valdez victims' favor: Justice Samuel Alito, an Exxon shareholder, recused himself from the case. Also in the plaintiffs' favor: No justice, with the possible exception of Scalia and the ceiling-staring Clarence Thomas, liked Exxon's assertion that no punitive damage is legitimate.
Ruth Ginsburg pointed to the evidence that "Exxon knew that this captain had a severe alcohol problem, and yet, they let him stay on voyage after voyage and did nothing about it."
Even Roberts seemed skeptical when he asked Exxon's lawyer, former solicitor general Walter Dellinger: "So you have to have a shareholder driving the boat before you can assess liability?"
Dellinger licked his lips frequently and drank generously from his water glass. "Exxon gained nothing by what went wrong and paid dearly for it," he pleaded to the justices.
It seemed likely Exxon would have to pay more for it -- though not terribly much. The court's dealmakers, Kennedy and David Souter, floated the idea that punitive damages could be double the amount of compensatory damages -- about $800 million, instead of the $2.5 billion ordered by the appellate court. Souter wondered aloud whether "we've simply got to come up with a number."
The notion of the justices pulling a number out of thin air seemed a bit too neat for an oil spill that spoiled 1,200 miles of Alaska's coastline. But then the argument had less to do with the dead marine animals and ruined fishermen than with an obscure maritime law case from 1818 called The Amiable Nancy-- or, as Scalia put it, the "Amiable Whatever It Is."
As the justices probed the intricacies of the laws of the sea, Ginsburg discussed Rule 50. Kennedy invoked Instruction 30, Instruction 33 and Instruction 36. Spectators showed evidence of drowsiness. Reporters yawned -- at least until they were jolted awake by an alarming prospect raised by Ginsburg, who spoke about "a new trial" and the "next time around."
A new trial? After 19 years of legal fighting? Out on the plaza after the argument, Brian O'Neill, one of the Alaska victims' lawyers, conceded that, whatever the Supreme Court's ruling, Exxon had already won. "I guess the lesson you learn," he said, "is that if you're big and powerful enough, you can bring the system to a halt."
Sunday, February 24, 2008
Justices Shield Medical Devices From Lawsuits
http://www.nytimes.com/2008/02/21/washington/21device.html
February 21, 2008
Justices Shield Medical Devices From Lawsuits
By LINDA GREENHOUSE
WASHINGTON — Makers of medical devices like implantable defibrillators or breast implants are immune from liability for personal injuries as long as the Food and Drug Administration approved the device before it was marketed and it meets the agency’s specifications, the Supreme Court ruled on Wednesday.
The 8-to-1 decision was a victory for the Bush administration, which for years has sought broad authority to pre-empt tougher state regulation.
In 2004, the administration reversed longstanding federal policy and began arguing that “premarket approval” of a new medical device by the F.D.A. overrides most claims for damages under state law. Because federal law makes no provision for damage suits against device makers, injured patients have turned to state law and have won substantial awards.
The Bush administration will continue its push for pre-emption in another F.D.A. case that the court has accepted for its next term, on whether the agency’s approval of a drug, as opposed to a device, pre-empts personal injury suits. Drugs and medical devices are regulated under separate laws.
The case before the court concerned only medical devices that had gone through the premarket approval process specified by the Medical Device Amendments of 1976. Most devices now available reached the market through a different process, under which the F.D.A. found them to be “substantially equivalent” to those marketed before the 1976 law took effect.
The Supreme Court ruled in 1996 that this less rigorous approval process does not pre-empt state damage suits against the manufacturers of “grandfathered” devices.
Devices subject to the premarket approval process, and thus affected by the court’s opinion, tend to be more technologically advanced, expensive and, in some instances, risky.
Examples of devices that have been the subjects of recent lawsuits include an implantable defibrillator, a heart pump, a spinal cord stimulator, a drug-coated stent, an artificial heart valve, and prosthetic hips and knees.
It was not immediately clear how many of the thousands of lawsuits against medical device manufacturers would be affected, though some pending cases will almost certainly be nullified.
The decision, for example, does not foreclose lawsuits claiming that a device was made improperly, in violation of F.D.A. specifications. Cases may also be brought under state laws that mirror federal rules, as opposed to supplementing them.
Next Monday, the court will hear another F.D.A. pre-emption case, on whether a state case can be based on the claim that a drug maker committed fraud by misrepresenting or withholding information from the agency during the approval process. The administration is supporting the manufacturer in that case, Warner-Lambert Co. v. Kent, No. 06-1498, which concerns the diabetes drug Rezulin.
Writing for the majority in Wednesday’s case, Riegel v. Medtronic Inc., No. 06-179, Justice Antonin Scalia said that permitting state juries to impose liability on the maker of an approved device “disrupts the federal scheme,” under which the F.D.A. has the responsibility for evaluating the risks and benefits of a new device and assuring that it is safe and effective for its intended use.
A jury, looking only at the injured plaintiff, will tend to weigh only the dangers of a device and “is not concerned with its benefits,” Justice Scalia said, adding, “the patients who reaped those benefits are not represented in court.”
The decision affirmed the dismissal of a lawsuit by a patient who was injured during an angioplasty when a balloon catheter burst while being inserted to dilate a coronary artery. The device won F.D.A. premarket approval in 1994, two years before the incident. The patient, Charles R. Riegel, died after the lawsuit was filed, and the case was carried on by his widow, Donna.
The medical device statute contains a pre-emption clause that bars states from imposing “any requirement” related to a medical device that is “different from, or in addition to” a federal requirement. The question of statutory interpretation at the heart of the case turned on what Congress meant by “any requirement.”
Justice Scalia said that state tort law, by imposing duties of care on product makers, amounted to such an additional requirement. He said the 1976 law “speaks clearly to the point at issue,” regardless of the federal government’s previous or current positions.
Justice Ruth Bader Ginsburg, the solitary dissenter, said the court had misconstrued Congress’s intent in adding the pre-emption clause to the 1976 law. The purpose, she said, was to prevent individual states from imposing their own premarket approval process on new medical devices. Devices were not regulated under federal law at the time, and California and other states had stepped in to fill the vacuum by setting up their own regulatory systems.
That was all that Congress had in mind, Justice Ginsburg said, not “a radical curtailment of state common-law suits seeking compensation for injuries caused by defectively designed or labeled medical devices.” She said that Congress had passed the 1976 law “to protect consumer safety,” not to oust the states from “a domain historically occupied by state law.” The decision was at odds with the “central purpose” of the 1976 law, Justice Ginsburg added.
Crucial Democratic lawmakers appear to agree with Justice Ginsburg, including Senator Edward M. Kennedy, Democrat of Massachusetts, who heads the Health, Education, Labor and Pensions Committee and was the sole Senate sponsor of the 1976 legislation in question.
“In enacting legislation on medical devices, Congress never intended that F.D.A. approval would give blanket immunity to manufacturers from liability for injuries caused by faulty devices,” Mr. Kennedy said in a statement. He added: “Congress obviously needs to correct the court’s decision.”
Representative Henry Waxman, the California Democrat who is chairman of the House Committee on Oversight and Government Reform and was on the House panel that approved the 1976 bill, expressed a similar view.
“The Supreme Court’s decision strips consumers of the rights they’ve had for decades,” Mr. Waxman said. “This isn’t what Congress intended, and we’ll pass legislation as quickly as possible to fix this nonsensical situation.”
The Food, Drug and Cosmetic Act of 1938, under which the F.D.A. regulates pharmaceuticals, does not contain a pre-emption clause. Nonetheless, the administration is arguing in the case the court has accepted for its next term, Wyeth v. Levine, No. 06-1249, that pre-emption is implicit in the structure of the statute.
The Supreme Court’s interest in pre-emption is not limited to the medical arena. In a similar case decided on Wednesday, this one unanimously, the court ruled that the federal law that deregulated the trucking industry in 1980 pre-empted two recent laws adopted by the State of Maine to regulate the shipment of tobacco products into the state.
The state laws were intended to prevent children who were not of legal age to buy cigarettes from ordering them over the Internet. The laws placed responsibility on shippers and delivery companies to verify the recipient’s identity and age.
Justice Stephen G. Breyer, writing for the court in this case, Rowe v. New Hampshire Motor Transport Association, No. 06-457, said the state law “produces the very effect that the federal law sought to avoid, namely, a state’s direct substitution of its own governmental commands for competitive market forces” in a deregulated environment.
Barnaby Feder contributed reporting from New York and Gardiner Harris from Washington.
February 21, 2008
Justices Shield Medical Devices From Lawsuits
By LINDA GREENHOUSE
WASHINGTON — Makers of medical devices like implantable defibrillators or breast implants are immune from liability for personal injuries as long as the Food and Drug Administration approved the device before it was marketed and it meets the agency’s specifications, the Supreme Court ruled on Wednesday.
The 8-to-1 decision was a victory for the Bush administration, which for years has sought broad authority to pre-empt tougher state regulation.
In 2004, the administration reversed longstanding federal policy and began arguing that “premarket approval” of a new medical device by the F.D.A. overrides most claims for damages under state law. Because federal law makes no provision for damage suits against device makers, injured patients have turned to state law and have won substantial awards.
The Bush administration will continue its push for pre-emption in another F.D.A. case that the court has accepted for its next term, on whether the agency’s approval of a drug, as opposed to a device, pre-empts personal injury suits. Drugs and medical devices are regulated under separate laws.
The case before the court concerned only medical devices that had gone through the premarket approval process specified by the Medical Device Amendments of 1976. Most devices now available reached the market through a different process, under which the F.D.A. found them to be “substantially equivalent” to those marketed before the 1976 law took effect.
The Supreme Court ruled in 1996 that this less rigorous approval process does not pre-empt state damage suits against the manufacturers of “grandfathered” devices.
Devices subject to the premarket approval process, and thus affected by the court’s opinion, tend to be more technologically advanced, expensive and, in some instances, risky.
Examples of devices that have been the subjects of recent lawsuits include an implantable defibrillator, a heart pump, a spinal cord stimulator, a drug-coated stent, an artificial heart valve, and prosthetic hips and knees.
It was not immediately clear how many of the thousands of lawsuits against medical device manufacturers would be affected, though some pending cases will almost certainly be nullified.
The decision, for example, does not foreclose lawsuits claiming that a device was made improperly, in violation of F.D.A. specifications. Cases may also be brought under state laws that mirror federal rules, as opposed to supplementing them.
Next Monday, the court will hear another F.D.A. pre-emption case, on whether a state case can be based on the claim that a drug maker committed fraud by misrepresenting or withholding information from the agency during the approval process. The administration is supporting the manufacturer in that case, Warner-Lambert Co. v. Kent, No. 06-1498, which concerns the diabetes drug Rezulin.
Writing for the majority in Wednesday’s case, Riegel v. Medtronic Inc., No. 06-179, Justice Antonin Scalia said that permitting state juries to impose liability on the maker of an approved device “disrupts the federal scheme,” under which the F.D.A. has the responsibility for evaluating the risks and benefits of a new device and assuring that it is safe and effective for its intended use.
A jury, looking only at the injured plaintiff, will tend to weigh only the dangers of a device and “is not concerned with its benefits,” Justice Scalia said, adding, “the patients who reaped those benefits are not represented in court.”
The decision affirmed the dismissal of a lawsuit by a patient who was injured during an angioplasty when a balloon catheter burst while being inserted to dilate a coronary artery. The device won F.D.A. premarket approval in 1994, two years before the incident. The patient, Charles R. Riegel, died after the lawsuit was filed, and the case was carried on by his widow, Donna.
The medical device statute contains a pre-emption clause that bars states from imposing “any requirement” related to a medical device that is “different from, or in addition to” a federal requirement. The question of statutory interpretation at the heart of the case turned on what Congress meant by “any requirement.”
Justice Scalia said that state tort law, by imposing duties of care on product makers, amounted to such an additional requirement. He said the 1976 law “speaks clearly to the point at issue,” regardless of the federal government’s previous or current positions.
Justice Ruth Bader Ginsburg, the solitary dissenter, said the court had misconstrued Congress’s intent in adding the pre-emption clause to the 1976 law. The purpose, she said, was to prevent individual states from imposing their own premarket approval process on new medical devices. Devices were not regulated under federal law at the time, and California and other states had stepped in to fill the vacuum by setting up their own regulatory systems.
That was all that Congress had in mind, Justice Ginsburg said, not “a radical curtailment of state common-law suits seeking compensation for injuries caused by defectively designed or labeled medical devices.” She said that Congress had passed the 1976 law “to protect consumer safety,” not to oust the states from “a domain historically occupied by state law.” The decision was at odds with the “central purpose” of the 1976 law, Justice Ginsburg added.
Crucial Democratic lawmakers appear to agree with Justice Ginsburg, including Senator Edward M. Kennedy, Democrat of Massachusetts, who heads the Health, Education, Labor and Pensions Committee and was the sole Senate sponsor of the 1976 legislation in question.
“In enacting legislation on medical devices, Congress never intended that F.D.A. approval would give blanket immunity to manufacturers from liability for injuries caused by faulty devices,” Mr. Kennedy said in a statement. He added: “Congress obviously needs to correct the court’s decision.”
Representative Henry Waxman, the California Democrat who is chairman of the House Committee on Oversight and Government Reform and was on the House panel that approved the 1976 bill, expressed a similar view.
“The Supreme Court’s decision strips consumers of the rights they’ve had for decades,” Mr. Waxman said. “This isn’t what Congress intended, and we’ll pass legislation as quickly as possible to fix this nonsensical situation.”
The Food, Drug and Cosmetic Act of 1938, under which the F.D.A. regulates pharmaceuticals, does not contain a pre-emption clause. Nonetheless, the administration is arguing in the case the court has accepted for its next term, Wyeth v. Levine, No. 06-1249, that pre-emption is implicit in the structure of the statute.
The Supreme Court’s interest in pre-emption is not limited to the medical arena. In a similar case decided on Wednesday, this one unanimously, the court ruled that the federal law that deregulated the trucking industry in 1980 pre-empted two recent laws adopted by the State of Maine to regulate the shipment of tobacco products into the state.
The state laws were intended to prevent children who were not of legal age to buy cigarettes from ordering them over the Internet. The laws placed responsibility on shippers and delivery companies to verify the recipient’s identity and age.
Justice Stephen G. Breyer, writing for the court in this case, Rowe v. New Hampshire Motor Transport Association, No. 06-457, said the state law “produces the very effect that the federal law sought to avoid, namely, a state’s direct substitution of its own governmental commands for competitive market forces” in a deregulated environment.
Barnaby Feder contributed reporting from New York and Gardiner Harris from Washington.
Friday, February 22, 2008
Fearing the McCain Supreme Court
http://www.huffingtonpost.com/doug-kendall/fearing-the-mccain-suprem_b_87101.html
Doug Kendall
Fearing the McCain Supreme Court
Posted February 17, 2008
Read More: 2008 Election, John McCain, Judicial Nominataions, Supreme Court, Breaking Politics News
A close look at John McCain's Senate voting record on judicial confirmations makes it painfully clear that progressives need to ignore the rantings of the Ann Coulter crowd and believe John McCain when he says he will listen to Sam Brownback and appoint judges like Samuel Alito and Antonin Scalia. On judges, McCain's no moderate: if given the chance, he will appoint justices that move an already conservative Supreme Court sharply to the right.
Indeed, one looks in vain for a judge who is too ideologically conservative for McCain: he voted to confirm Robert Bork, Clarence Thomas and, unless I've missed something, every other Republican judicial nominee voted on in his 22 years in the Senate.
Even more tellingly, as part of his negotiation in 2005 of what has been dubbed the "Gang of 14 Deal" (more on this later), McCain pushed, hard, for the confirmation of both William Pryor and Janice Rogers Brown, the two hardest-edged conservatives appointed to the federal bench by President George W. Bush.
Pryor famously said of Bush v. Gore: "I'm probably the only one who wanted it 5-4. I wanted Governor Bush to have a full appreciation of the judiciary and judicial selection so we can have no more appointments like Justice Souter." As the Washington Post editorialized in a piece called "Unfit to Judge," that statement indicates such a nakedly political view of judging that it alone should have been disqualifying for a lifetime position on the federal bench.
Brown's views were even more outlandish. In speeches given to the Federalist Society and the Institute for Justice, Brown railed against judicial opinions in the 1930's upholding the New Deal as "the triumph of our own socialist revolution." Brown, almost alone among lawyers, openly yearned for a return of the so-called "Lochner-era" in which a conservative court routinely struck down labor, health and safety laws in the early 20th century. In the words of Robert Bork (no liberal he), Lochner is an "abomination" that "lives in the law as the symbol, indeed the quintessence of judicial usurpation of power." No one in the Senate is more responsible for Brown's confirmation to a lifetime seat on the all-important DC Circuit Court of Appeals than John McCain, a fact he touts on the campaign trail.
McCain was also more than willing to rough-up President Clinton's judicial nominees. McCain missed many important votes on Clinton nominees in 1999 and 2000 while campaigning for the White House. But he was present in 1994 and was among just 12 Senators to support a filibuster of Judge Lee Sarokin, a nominee to the Third Circuit Court of Appeals who was rated unamimously "well qualified" by the ABA (the highest possible rating). McCain's decision to side with the likes of Jesse Helms and Strom Thurmond in this vote, and against Orrin Hatch and Trent Lott speaks volumes.
Indeed his support for the Sarokin filibuster is probably why he joined the Gang of 14 Deal. This Deal preserved, in diluted form, the ability of Senators to filibuster judicial nominees. It was agreed to by 7 Democrats and 7 Republicans (including McCain) in 2005, preventing then-Republican Majority Leader Bill Frist from eliminating the filibuster via a rules trick Trent Lott dubbed the "nuclear option" (because of the meltdown it would have caused in the Senate). McCain's participation in the Gang of 14 Deal is often cited as evidence of McCain's moderation, or among the Coulters of the world, his willingness to capitulate to the left. The reality is that it is simply an example of John McCain being consistent: since he had supported past efforts to block Clinton nominees via the filibuster, he wasn't in a great position to argue that Democrats should be prevented from using this tool.
Equally unconvincing is the argument by the talk radio crowd that, as part of the Gang of 14 deal, McCain threw other "fine nominees... under the bus." The two judges who were effectively denied confirmation by the Gang of 14 deal -- William Myers and Henry Said -- had serious ethical issues. Myers, a former Interior Department Solicitor under Gale Norton, was affiliated with the Jack Abramoff crowd that McCain investigated for defrauding Native American tribes . Said had issues in his FBI folder. Even if it accurate to blame McCain for preventing these nominations from coming to a vote -- a dubious proposition -- it confirms only McCain's good-government streak.
No one thinks John McCain would nominate ethically-challenged judges. But there is every reason to think that he will nominate ideological conservatives to the Supreme Court and lower federal courts.
This is important because federal courts are already dominated by Republican appointees. Seven of the nine Justices, and a sizeable majority of lower federal court judges were appointed by Republican presidents. With the Courts' liberal/moderate judges on average 15 years older than the Court's conservatives, John McCain in the White House could easily deliver the Court to the right wing for a generation.
The far right clearly understands this, which is why they have forced McCain to profess ever more stridently his devotion to their Supreme Court cause. As I've argued in more detail here, it's troubling that progressive and moderate voters seem to care so much less about this critical issue.
Doug Kendall
Fearing the McCain Supreme Court
Posted February 17, 2008
Read More: 2008 Election, John McCain, Judicial Nominataions, Supreme Court, Breaking Politics News
A close look at John McCain's Senate voting record on judicial confirmations makes it painfully clear that progressives need to ignore the rantings of the Ann Coulter crowd and believe John McCain when he says he will listen to Sam Brownback and appoint judges like Samuel Alito and Antonin Scalia. On judges, McCain's no moderate: if given the chance, he will appoint justices that move an already conservative Supreme Court sharply to the right.
Indeed, one looks in vain for a judge who is too ideologically conservative for McCain: he voted to confirm Robert Bork, Clarence Thomas and, unless I've missed something, every other Republican judicial nominee voted on in his 22 years in the Senate.
Even more tellingly, as part of his negotiation in 2005 of what has been dubbed the "Gang of 14 Deal" (more on this later), McCain pushed, hard, for the confirmation of both William Pryor and Janice Rogers Brown, the two hardest-edged conservatives appointed to the federal bench by President George W. Bush.
Pryor famously said of Bush v. Gore: "I'm probably the only one who wanted it 5-4. I wanted Governor Bush to have a full appreciation of the judiciary and judicial selection so we can have no more appointments like Justice Souter." As the Washington Post editorialized in a piece called "Unfit to Judge," that statement indicates such a nakedly political view of judging that it alone should have been disqualifying for a lifetime position on the federal bench.
Brown's views were even more outlandish. In speeches given to the Federalist Society and the Institute for Justice, Brown railed against judicial opinions in the 1930's upholding the New Deal as "the triumph of our own socialist revolution." Brown, almost alone among lawyers, openly yearned for a return of the so-called "Lochner-era" in which a conservative court routinely struck down labor, health and safety laws in the early 20th century. In the words of Robert Bork (no liberal he), Lochner is an "abomination" that "lives in the law as the symbol, indeed the quintessence of judicial usurpation of power." No one in the Senate is more responsible for Brown's confirmation to a lifetime seat on the all-important DC Circuit Court of Appeals than John McCain, a fact he touts on the campaign trail.
McCain was also more than willing to rough-up President Clinton's judicial nominees. McCain missed many important votes on Clinton nominees in 1999 and 2000 while campaigning for the White House. But he was present in 1994 and was among just 12 Senators to support a filibuster of Judge Lee Sarokin, a nominee to the Third Circuit Court of Appeals who was rated unamimously "well qualified" by the ABA (the highest possible rating). McCain's decision to side with the likes of Jesse Helms and Strom Thurmond in this vote, and against Orrin Hatch and Trent Lott speaks volumes.
Indeed his support for the Sarokin filibuster is probably why he joined the Gang of 14 Deal. This Deal preserved, in diluted form, the ability of Senators to filibuster judicial nominees. It was agreed to by 7 Democrats and 7 Republicans (including McCain) in 2005, preventing then-Republican Majority Leader Bill Frist from eliminating the filibuster via a rules trick Trent Lott dubbed the "nuclear option" (because of the meltdown it would have caused in the Senate). McCain's participation in the Gang of 14 Deal is often cited as evidence of McCain's moderation, or among the Coulters of the world, his willingness to capitulate to the left. The reality is that it is simply an example of John McCain being consistent: since he had supported past efforts to block Clinton nominees via the filibuster, he wasn't in a great position to argue that Democrats should be prevented from using this tool.
Equally unconvincing is the argument by the talk radio crowd that, as part of the Gang of 14 deal, McCain threw other "fine nominees... under the bus." The two judges who were effectively denied confirmation by the Gang of 14 deal -- William Myers and Henry Said -- had serious ethical issues. Myers, a former Interior Department Solicitor under Gale Norton, was affiliated with the Jack Abramoff crowd that McCain investigated for defrauding Native American tribes . Said had issues in his FBI folder. Even if it accurate to blame McCain for preventing these nominations from coming to a vote -- a dubious proposition -- it confirms only McCain's good-government streak.
No one thinks John McCain would nominate ethically-challenged judges. But there is every reason to think that he will nominate ideological conservatives to the Supreme Court and lower federal courts.
This is important because federal courts are already dominated by Republican appointees. Seven of the nine Justices, and a sizeable majority of lower federal court judges were appointed by Republican presidents. With the Courts' liberal/moderate judges on average 15 years older than the Court's conservatives, John McCain in the White House could easily deliver the Court to the right wing for a generation.
The far right clearly understands this, which is why they have forced McCain to profess ever more stridently his devotion to their Supreme Court cause. As I've argued in more detail here, it's troubling that progressive and moderate voters seem to care so much less about this critical issue.
Tuesday, July 3, 2007
Justices End 96-Year-Old Ban on Price Floors
http://www.nytimes.com/2007/06/29/business/28cnd-bizcourt.html
June 29, 2007
Justices End 96-Year-Old Ban on Price Floors
By STEPHEN LABATON
WASHINGTON — Striking down an antitrust rule nearly a century old, the Supreme Court ruled today that it is no longer automatically unlawful for manufacturers and distributors to agree on setting minimum retail prices.
The decision will give producers significantly more leeway, though not unlimited power, to dictate retail prices and to restrict the flexibility of discounters.
Five justices said the new rule could, in some instances, lead to more competition and better service. But four dissenting justices agreed with the submission of 37 states and consumer groups that the abandonment of the old rule would lead to significantly higher prices and less competition for consumer and other goods.
The court struck down the 96-year-old rule that resale price maintenance agreements were an automatic, or per se, violation of the Sherman Antitrust Act. In its place, the court instructed judges considering such agreements for possible antitrust violations to apply a case-by-case approach, known as a “rule of reason,” to assess their impact on competition.
The decision was the latest in a string of opinions this term to overturn Supreme Court precedents. It marked the latest in a line of Supreme Court victories for big businesses and antitrust defendants. And it was the latest of the court’s antitrust decisions in recent years to reject rules that had prohibited various marketing agreements between companies.
The Bush administration, along with economists of the Chicago school, had argued that the blanket prohibition against resale price maintenance agreements was archaic and counterproductive because, they said, some resale price agreements actually promote competition.
For example, they said, such agreements can make it easier for a new producer by assuring retailers that they will be able to recoup their investments in helping to market the product. And they said some distributors could be unfairly harmed by others — like Internet-based retailers — that could offer discounts because they would not be incurring the expenses of providing product demonstrations and other specialized consumer services.
A majority of the court agreed that the flat ban on price agreements discouraged these and other marketing practices that could be helpful to competition.
“In sum, it is a flawed antitrust doctrine that serves the interests of lawyers — by creating legal distinctions that operate as traps for the unaware — more than the interests of consumers — by requiring manufacturers to choose second-best options to achieve sound business objectives,” the court said in an opinion by Justice Anthony M. Kennedy and signed by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.
But in his dissent, portions of which he read from the bench, Justice Stephen G. Breyer said there was no compelling reason to overturn a century’s worth of Supreme Court decisions that had affirmed the prohibition on resale maintenance agreements.
“The only safe predictions to make about today’s decision are that it will likely raise the price of goods at retail and that it will create considerable legal turbulence as lower courts seek to develop workable principles,” he wrote. “I do not believe that the majority has shown new or changed conditions sufficient to warrant overruling a decision of such long standing.”
During the period from 1937 to 1975 when Congress allowed the states to adopt laws that permitted retail price fixing, economists estimated that such agreements covered about 10 percent of consumer good purchases. In today’s dollars, Justice Breyer estimated that the agreements translate to a higher annual average bill for a family of four of roughly $750 to $1,000.
The dissent was signed by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.
The case involved an appeal of a judgment of $1.2 million against Leegin Creative Leather Products Inc. after it cut off Kay’s Kloset, a suburban Dallas shop, for refusing to honor Leegin’s no-discount policy. The judgment was automatically tripled under antitrust law.
Leegin’s marketing strategy for finding a niche in the highly competitive world of small leather goods was to sell its “Brighton” line of fashion accessories through small boutiques that could offer personalized service. Retailers were required to accept a no-discounting policy.
After the United States Court of Appeals for the Fifth Circuit, in New Orleans, upheld the judgment and said it was bound by Supreme Court precedent, Leegin took the case to the Supreme Court. Unless it is settled, the case, Leegin Creative Leather Products v. PSK Inc., will now be sent down to a lower court to apply the new standard.
The Supreme Court adopted the flat ban on resale price agreements between manufacturers and retailers in 1911, when it founded that the Dr. Miles Medical Company had violated the Sherman act. The company had sought to sell medicine only to distributors who agreed to resell them at set prices. The court said such agreements benefit only the distributors, not consumers, and set a rule making such agreements unlawful.
Justice Kennedy said today that the court was not bound by the 1911 precedent because of the “widespread agreement” among economists that resale price maintenance agreements can promote competition.
“Vertical agreements establishing minimum resale prices can have either pro-competitive or anticompetitive effects, depending upon the circumstances in which they are formed,” he wrote.
But Justice Breyer said in his dissent that the court had failed to justify the overturning of the rule, or that there was significant evidence to show that price agreements would often benefit consumers. He said courts would have a difficult time sorting out the price agreements that help consumers from those that harm them.
“The upshot is, as many economists suggest, sometimes resale price maintenance can prove harmful, sometimes it can bring benefits,” he wrote. “But before concluding that courts should consequently apply a rule of reason, I would ask such questions as, how often are harms or benefits likely to occur? How easy is it to separate the beneficial sheep from the antitrust goats?”
“My own answer,” he concluded, “is not very easily.”
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