Liberty & Justice for all (in these States)

The New York Times reports that the US Supreme Court has decided to not hear appeals on three separate decisions by Federal Appeals Courts to throw out state-level bans against gay marriage. A 4th Circuit ruling against Virginia, as well as a 7th Circuit ruling against Indiana & Wisconsin and a 10th Circuit ruling against Oklahoma & Utah were all left standing after the Supreme Court refused to get involved. This, after the Court had stayed all the decisions for many months. In the succeeding weeks, gay marriage will also almost certainly begin in the six other States covered by the jurisdiction of those three Appeals Courts: New Mexico, North Carolina, Kansas, South Carolina, West Virginia and Wyoming. This means that 11 States in total will have legalized gay marriage in short order, bringing the total number of States with marriage equality to 30, plus the District of Columbia.

The ruling is somewhat noteworthy, as it has struck most of the typically followers of the Court by surprise. Only four Justices, of course, are required to grant certiorari to a prospective case. What this means is that inch-by-inch approach commonly employed by the liberals-plus-Kennedy coalition on the Court needed at least one more adherent to prevent certiorari from being granted. I talked about this incremental approach a little last year, when the Court struck down most of the Defense of Marriage Act. Justice Anthony Kennedy, the closest thing to a moderate on the Court, joined with the four liberal Justices to hand a nominal victory to the proponents of LGBT rights, but they stopped far short of decreeing gay marriage nationwide –something that many pundits, including myself, so desperately wanted.

Accordingly, with these cases steadily making their way through the legal system, most assumed that the Court would be almost compelled to hear them and render a definitive up-or-down decision on the validity of state-level bans on gay marriage. They thought wrong.

Justice Ruth Bader Ginsburg, arguably the most prolific liberal on the Court, has been a particularly vocal proponent of the so-called incremental approach. She has been a somewhat active critic of the Court’s expansive ruling in Roe v. Wade, arguing it went too far too quickly and polarized the nation into incessant gridlock. On this issue, she has argued, the court should allow time for public opinion to change. And it has changed, in fact, quicker than anyone would have imagined.

Unfortunately, the court’s decision (or indecision, I suppose) did nothing to rectify the bans still present in 20 States, including Texas. Earlier this year, a Federal Judge declared Texas’ ban on gay marriage (as well as civil unions) unconstitutional, but that decision has been stayed pending appeal. The Fifth Circuit Court of Appeals has apparently been taking their sweet time on that case, but given the extreme conservatism of that court, if there is ever an Appeals Court to affirm gay marriage bans, it would be one.

At that point, with Appellate Courts coming to opposite conclusions, the Supreme Court would almost feel compelled to step in. The four liberals, almost certainly, would want to hear the case at that time.

Without a doubt, I’m happy that the Court has decided to allow, even by omission, for marriage equality to go forward in nearly a dozen states. I just wish Texas was one of them. I think the next step will be a nationwide mandate requiring each State to recognize gay marriages performed elsewhere. At that point, the barriers preventing it from being performed within the State will become just too superficial to be defended.

VRA could get fixed (in Texas)

The Dallas Morning News reports that a new bipartisan bill introduced in Congress to resurrect the floundering Voting Rights Act would include strong new protections against racial meddling in Texas. As the sagacious may recall, back in June the US Supreme Court ruled 5-4 to gut Section 5 of the Voting Right Act, which required the States of Jim Crow to get any election updates precleared by the Federal Government. The Court declared that the world had changed since the advent of this act in the 1960s, and that racism had been vanquished, thus exclaiming that such an antiquated formula was unconstitutional. Justice Ruth Bader Ginsburg, the dean of the Court’s liberal minority and the author of a scathing dissent in this case, compared it “throwing away your umbrella in a rainstorm because you are not getting wet.”

The Court’s blow to the Voting Rights Act was all the more harmful because it expected Congress to simply pick up the slack and fix the law by provided a new coverage formula for the aforementioned preclearence based on modern statistics. However, getting Congress to do anything is easier said than done. Accordingly, it was a very good sign yesterday when Rep. John Conyers (D-MI) and Rep. James Sensenbrenner (R-WI) introduced a bill that would revive the coverage formula based on those States with recent VRA violations (i.e., Georgia, Louisiana, Mississippi & Texas).

Click here to read more!

Fisher decision

The New York Times reports that the United States Supreme Court has come out with their ruling in the case of Fisher v. University of Texas. Many months ago, I wrote an op-ed on this topic. I wrote shortly before the Supreme Court heard arguments in the case, where I repeated the assertion made often in the media at that time, that a 5-4 division of the Court would have struck affirmative action as unconstitutional.

That was before the court heard arguments, however. As this decision approached, I became convinced the Court would render an exceedingly narrow opinion, pertaining only to Texas because of the 10% rule, in a nearly unanimous manner. For the first time in many, many years, I was right about one of these things.

The Supreme Court held 7-1 that the Fifth Circuit had, indeed, erred in their ruling. However, they attributed this to the Appeals court incorrectly not applying heightened scrutiny to UT’s affirmative action program.  6 Justices specifically held not to overturn Grutter v. Bollinger, the most recent Supreme Court opinion upholding affirmative action.

The Justices, for all intent and purposes, were actually divided into three groups. 5 Justices (Roberts, CJ., Kennedy, Breyer, Alito, Kagan, J.J.) held the opinion of the court, the thing with heightened scrutiny and what not. 2 Justices (Scalia and Thomas, J.J.) would have scrapped all affirmative action. Justice Ginsburg would have affirmed the Fifth Circuit’s opinion. The missing link, Justice Kagan, did not take part in the case since it was pending while she was the President’s Solicitor General.

This was especially interesting since Justice Kennedy was in the dissent of Grutter. While Chief Justice Roberts and Justice Alito were not on the Court in that year, Justices typically as conservative as them were dissenting in the previous case, like Chief Justice Rehnquist.

We’ll see how the Legislature deals with all this in 2015, though.

In re Romney

My op-ed on the (hashem forbid) possible Presidency of Mitt Romney. From The Justice.

It’s January 20, 2013 at noon. Mitt Romney has just been sworn in by Chief Justice John Roberts as the 45th president of the United States of America. Yes, this is the nightmare many of us have been having since the first debate, and I would like to share how I think this would play out.

Romney was elected in a very close election, winning Ohio by a few thousand votes to capture a majority of the Electoral College. President Obama won the popular vote. The Republican Party’s momentum allowed for Republican candidates to win in Senate elections in Montana, Nebraska, North Dakota and Virginia, along with Senator Scott Brown’s reelection here in Massachusetts.

This caused the Senate to be comprised of 50 Democratic members and 50 Republican members, meaning that the Republican party would hold control of the chamber through Vice President Paul Ryan’s tiebreaking vote.

Meanwhile, Republicans maintained their control of the House of Representatives, effectively in control of all three segments of the elected government.

A Democratic filibuster in the Senate might prevent President Romney from actually repealing Obamacare on “Day one,” but he would only need a simple majority in the Senate to defund the act through a process called “reconciliation,” that is, amending a previous law with just over half of the possible votes. This would allow for a Romney administration to effectively make the law moot. Through reconciliation, Republicans would also be able to enact massive tax cuts, mainly for the wealthiest individuals and largest corporations.

However, without 60 Republican votes in the Senate, a Romney administration would not be able to embark on some of the other more ambitious aspirations of the Republican Party.

These include drastically increasing off-shore drilling, enacting a national Arizona-style immigration law and turning Medicare into a voucher system.

A Romney presidency would also be disastrous for foreign affairs. The last time a Republican was president, under George W. Bush, the United States was heavily criticized by our allies, such as France and Germany during the Iraq War, for abiding by unilateral, destructive policies.

The Obama administration has taken many steps to not only improve our image overseas but to make the world a safer place. The Obama administration touts the signing of the New START treaty with Russia, which allows for United States oversight of Russian nuclear programs, an invaluably important provision supported by presidents and presidential candidates since Reagan—until now, that is.

A President Romney would withdraw from the New START treaty. This would put America at egregious risk purely for the appeasement of Romney’s political party. A President Romney would also further exacerbate tensions with Iran, and would be more likely to go to war. As we have seen in the recent vice-presidential debate, a Romney administration would be dubious of economic or diplomatic sanctions against Iran. The result would surely be military action.

A Romney administration would repeal Obamacare, make permanent the Bush tax cuts, and return to the same style of diplomacy as President Bush. These are not trivial accomplishments by any means. However, they are surely not the Armageddon that many on the left are predicting from a Romney presidency. That is, unless one key event occurs.

The Supreme Court is currently comprised of four liberals, four extreme conservatives and one moderate conservative. One of the liberals, Justice Ruth Bader Ginsburg, is currently 79 years old. She has had multiple battles with cancer in the past, but is currently in remission. If Justice Ginsburg would have to retire or otherwise be replaced during a Romney presidency, it might very well be the end of the world that many are predicting. Romney has a history of being called “not conservative enough,” so he would have an added impetus to appoint an ultra-conservative to the court. Otherwise, he would risk drawing a primary challenger from the ultra-Conservative wing of the Republican Party for his possible re-election bid in 2016.

This new Supreme Court justice would alter many of the most important cases to come before the court. Once he or she took office, the new justice would be the deciding vote in a number of key cases including: a case overturning Roe v. Wade, a case overturning N.F.I.B. v. Sebilius (striking Obamacare) and a case that would prevent a national recognition of marriage equality for a generation. Further, I feel there is a very low chance that Romney’s nominee for the court would ever side with liberal justices. If someone claims that a Romney administration will not be able to accomplish anything significant because they could not block a Democratic filibuster in the Senate, they would be simply wrong. With the smallest of majorities in Congress, the theoretical President Romney could, for all intent and purposes, repeal Obamacare and make the Bush tax cuts permanent.

Without congressional approval, a Republican administration in the White House could severely alter foreign relations with other nations. However, most importantly, a Romney administration could destroy the integrity of our Supreme Court for a generation to come.