SCOTUS Watch

Stay frosty thats what the preacher man said
Stay Frosty
his words still racket in my head
Can't control your future
cant control your friends
in a world without ends...
Stay Frosty!

-- Van Halen

"Stay frosty" (which I first recall hearing on the show Reboot) basically means to stay safe but also on guard for danger.  It came to me in another context; the song has a general value.

This is PPACA (as with "mandate," I'm not with the slang) week at the Supreme Court, today being a sort of prologue with tax injunction arguments being made.  Per Holmes quote, this is an important set of cases in respect to the breadth of the law and principles at stake, but  not so "great" in that the bottom line is that the law is clearly constitutional.  One would desire a closer case with less partisan corruption to settle such matters. OTOH, I'm sure you can show me many cases that are far from perfect in that respect, so you take what you get.

With 26 states challenging the president’s signature piece of legislation, it is not inappropriate for the Supreme Court to schedule six hours of argument to ensure all points are thoroughly considered and vetted, given the complexities of the statute and the number of claims made against it. But the strength of the challenges do not justify the length of the argument. The Constitution’s text and history, as well as Supreme Court precedent from the founding to the present, clearly support Congress’s authority to pass the Affordable Care Act, including its “individual mandate.”

The general sentiment at the NYT Room for Debate blog is that there is value in spending so much time on these issues, though Elizabeth Wydra sounds a bit conflicted and someone else sees it more cynically.  I myself think this is a major case and deserves extra time. Don't think six hours.  Does the injunction and severability issues really need so much time?  Particularly since, let's be honest, the former seems a bit of a loser? Abortion was handled via two cases in a couple hours okay enough and it too had both procedural and substantive issues.  But, the nation is split on this issue, at least the parties, so the die is really cast. 

Meanwhile, the Supreme Court handed down a couple opinions, one a brief unanimous one (if equally split, Roberts not participating, on one issue), the other something of a punt.  The latter involves:

Stepping into a significant test of the President’s foreign policy powers, the Supreme Court agreed on Monday to decide whether Congress had the authority to dictate how the Executive Branch makes out birth certificates for U.S. citizens born abroad — in this case, in Jerusalem, a city that the U.S. government does not recognize as an official part of Israel.  At issue is the validity of a nine-year-old law in which Congress aimed to acknowledge Jerusalem as the capital of Israel.

SCOTUS held (Roberts speaking for the Court, doing his Marshall impression, Breyer dissenting alone) that the lower court was wrong to hold this was a political question, remanding it for them to decide the merits.  Sotomayor (Breyer agreeing with her standards) thought the main opinion was a bit too permissive, but as with Alito (in a brief concurrence) thought it was not a problem here. Some might see this ruling being handed down today as a symbol that the courts have the power to decide what the law is, even in controversial cases.  Maybe.

I myself, though Sotomayor's opinion is interesting [e.g., political questions include those not "judicial" to the degree courts are not very able to decide them per traditional legal rules], am wary of the political question doctrine unless it clearly entails a question left to other branches. Thus, I'm with the Souter/White here.  This seems to be a clear case, particularly given the two branches disagree. Seems an apt tie breaker. Prudence is a central concern here and usually some other technique can be used to get to the same end.  Anyway, I think Breyer should have let the lower court make its case and then note his position on the political question issue.  He could have briefly noted, unlike Sotomayor, he was currently agnostic about it.

Anyway, interesting that Sotomayor and Breyer were somewhat more of a voice of "judicial restraint" today, though of course just what that means is usually up in the air.  And, limited win to a long active advocate.