Posts tagged: Scalia

Scalia Hits The Nail — And Hard

By , June 28, 2012 9:50 am

From Scalia’s dissent (at page 190 of the opinion), joined by Kennedy, Alito, and Thomas, in the Affordable Care Act case:

The Court today decides to save a statute Congress did
not write. It rules that what the statute declares to be a
requirement with a penalty is instead an option subject
to a tax. And it changes the intentionally coercive sanction
of a total cut-off of Medicaid funds to a supposedly
noncoercive cut-off of only the incremental funds that the
Act makes available.

The Court regards its strained statutory interpretation
as judicial modesty. It is not. It amounts instead to a vast
judicial overreaching. It creates a debilitated, inoperable
version of health-care regulation that Congress did not
enact and the public does not expect. It makes enactment
of sensible health-care regulation more difficult, since
Congress cannot start afresh but must take as its point of
departure a jumble of now senseless provisions, provisions
that certain interests favored under the Court’s new design
will struggle to retain. And it leaves the public and
the States to expend vast sums of money on requirements
that may or may not survive the necessary congressional

The Court’s disposition, invented and atextual as it is,
does not even have the merit of avoiding constitutional
difficulties. It creates them. . . .

Hurrah for the limits the Court imposed on the Commerce Clause. Boo because the Court struggled so hard to find a tax. Double boo on a Congress that didn’t have the guts to call it a tax in the first place.

And Part of the Reason is the Doctrine of Separation of Powers!

By , February 24, 2011 9:32 am

Two quotes from this piece of campaign literature posing as journalism should be enough.

First, the writer, mischaracterizes Citizens United:

The nonprofit group Common Cause has complained that the controversial Citizens United v. Federal Election Commission decision on campaign financing last year – on a narrow majority backed by Thomas and Scalia – opened the door to heightened corporate contributions from the Koch empire. (emphasis supplied)

No, Citizens United only opened the door to independent corporate expenditures on things like political ads and such.

Second, the writer betrays an unfamiliarity with the basic constitutional doctrine of separation powers when he writes,

The group’s appeal for legislation faces political as well as potential constitutional hurdles, partly because members of the Supreme Court are now the final authority on the appropriateness of their ethical behavior. Decisions to recuse, or step away from deliberations, by tradition have been left up to the individual justices at the center of any complaint, contrary to the practice on most state supreme courts. (emphasis supplied)

The Supreme Court has always been the final authority on the ethical behavior of its members–unless and until such behavior warrants impeachment. To have it otherwise, would be to allow Congress the power to meddle in the affairs of the Court for political purposes, something the law professors involved in this bit of political theater and preemptive action should admit they’re doing.

I’m just guessing here, but I’m willing to be that you can look high and low and still won’t find any of the names of these 700 busybodies on a letter of this sort decrying the actions of a liberal Justice.

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