Detainees: The Supreme Court continues to not take another detainee case (not that I might like the result if they did), leaving things in the hands of D.C. Circuit appellate judges who don't like the few limits the Court put in place already.
Per the recent "selective focus" immunity ruling, Justice Thomas handed down another death penalty ruling restricting safeguards. Not quite as compelling, though still 5-4 (Breyer only dissented in part; Alito concurred but agreed with the dissent somewhat) as a whole. Sotomayor again takes the liberal lead, this time the three women justices held together v. the guys. [Update: Actually, Sotomayor was only joined in part by Ginsburg/Kagan, she apparently taking the "go it alone" strong liberal view (or what that amounts to these days) ala Stevens to heart. More analysis here.]
Meanwhile, pressured in part by Congress, the Administration now says KSM won't get a civilian trial. Obama is surely not free from blame here, but it is hard to (sorry GG) just put it on him. For instance, if Congress refuses to fund transfers, what is he supposed to do? Veto such a bar? It is unclear if Congress won't override and if it does not, they still need to actively fund it. And, meanwhile, the people continue to be held in limbo.
Religion: Justice Kagan wrote her first dissent to a ruling it was held that: "Because respondents challenge a tax credit as opposed to a governmental expenditure, they lack Article III standing under Flast v. Cohen." As Kagan wrote in a 5-4 dissent that Stevens easily could have wrote (though the "now really" comment doesn't quite work for him), "cash grants and targeted tax breaks are means of accomplishing the same government objective—to provide financial support to select individuals or organizations." She used various comparisons such as:
The problem is that taxpayers are a primary way that such schemes are challenged in court as noted by Kagan (pointing out how many past Supreme Court cases came via that route). Also, the general message put forth was to be strict about standing. Except, perhaps, if some affirmative action law has to be struck down or something. I snark. But, such "judicial minimalism" -- or keeping certain people out of the courts -- does seem to be selectively applied. In reality, there are limited judicial resources, including judicial capital, and conservatives tend to realize this as much as the next person. And, narrow taxpayer standing isn't the only avoidance tactic as shown in public display cases and others.
And, since tax dollars for religion was a key problem the religion clauses specifically are concerned about (see Flast), this is the point of laxer standing rules in this context as compared to any potentially prohibited use of government funds. Most constitutional provisions don't have that special character, except perhaps something like the requirement in Art. I, sec. 9 to disclose expenditures. The best one might say is that if they actually went to the merits, the Court likely would have upheld the program, which would be worse. And, even narrow Flast standing is better than none ala Scalia/Thomas.
Anyway, avoidance -- habeas and taxpayer and so forth is the name of the game today.
Per the recent "selective focus" immunity ruling, Justice Thomas handed down another death penalty ruling restricting safeguards. Not quite as compelling, though still 5-4 (Breyer only dissented in part; Alito concurred but agreed with the dissent somewhat) as a whole. Sotomayor again takes the liberal lead, this time the three women justices held together v. the guys. [Update: Actually, Sotomayor was only joined in part by Ginsburg/Kagan, she apparently taking the "go it alone" strong liberal view (or what that amounts to these days) ala Stevens to heart. More analysis here.]
Meanwhile, pressured in part by Congress, the Administration now says KSM won't get a civilian trial. Obama is surely not free from blame here, but it is hard to (sorry GG) just put it on him. For instance, if Congress refuses to fund transfers, what is he supposed to do? Veto such a bar? It is unclear if Congress won't override and if it does not, they still need to actively fund it. And, meanwhile, the people continue to be held in limbo.
Religion: Justice Kagan wrote her first dissent to a ruling it was held that: "Because respondents challenge a tax credit as opposed to a governmental expenditure, they lack Article III standing under Flast v. Cohen." As Kagan wrote in a 5-4 dissent that Stevens easily could have wrote (though the "now really" comment doesn't quite work for him), "cash grants and targeted tax breaks are means of accomplishing the same government objective—to provide financial support to select individuals or organizations." She used various comparisons such as:
Our taxpayer standing cases have declined to distinguish between appropriations and tax expenditures for a simple reason: Here, as in many contexts, the distinction is one in search of a difference. To begin to see why, consider an example far afield from Flast and, indeed, from religion. Imagine that the Federal Government decides it should pay hundreds of billions of dollars to insolvent banks in the midst of a financial crisis. Suppose, too, that many millions of taxpayers oppose this bailout on the ground (whether right or wrong is immaterial) that it uses their hard-earned money to reward irresponsible business behavior. In the face of this hostility, some Members of Congress make the following proposal: Rather than give the money to banks via appropriations, the Government will allow banks to subtract the exact same amount from the tax bill they would otherwise have to pay to the U. S. Treasury. Would this proposal calm the furor?Slate covered the orals here. As the NYT recap today noted, upholding this particular law might not mean much. In fact, the merits of the law wasn't even addressed, and arguably there is a way for some other group other than taxpayers to challenge the law or some other tax credit scheme in another context. For instance, if certain schools benefit over others, an equal protection claim or maybe even an establishment claim (now more specific to money not received) is possible. And, in such a case, Kagan can again argue that "historians and legal scholars have uniformly understood the opt-out provision as a considered attempt to accommodate taxpayers who did not want their tax dollars to go to religion." And, furthermore, if less uniformly, that something like that would have violated Madison's philosophy. The dispute underlining the limitations of appeals to originalism. That is, for those who put a lot of stock in such things.
The problem is that taxpayers are a primary way that such schemes are challenged in court as noted by Kagan (pointing out how many past Supreme Court cases came via that route). Also, the general message put forth was to be strict about standing. Except, perhaps, if some affirmative action law has to be struck down or something. I snark. But, such "judicial minimalism" -- or keeping certain people out of the courts -- does seem to be selectively applied. In reality, there are limited judicial resources, including judicial capital, and conservatives tend to realize this as much as the next person. And, narrow taxpayer standing isn't the only avoidance tactic as shown in public display cases and others.
And, since tax dollars for religion was a key problem the religion clauses specifically are concerned about (see Flast), this is the point of laxer standing rules in this context as compared to any potentially prohibited use of government funds. Most constitutional provisions don't have that special character, except perhaps something like the requirement in Art. I, sec. 9 to disclose expenditures. The best one might say is that if they actually went to the merits, the Court likely would have upheld the program, which would be worse. And, even narrow Flast standing is better than none ala Scalia/Thomas.
Anyway, avoidance -- habeas and taxpayer and so forth is the name of the game today.