Articles and Posts by R Oliver:
Re: Mr. Kirkwood and Mr. Piatak(0)
I see by my mild defense of Roberts, I’ve made myself a friendly target and in bringing up the inevitable Supreme Court ruling on gay marriage, I’ve distracted from the implications of the Obamacare ruling. That was not my intent, but here we are.
To Mr. Kirkwood: I think your characterization of Roberts assistance on a large pro bono matter at a large Washington law firm, Hogan & Hartson, is misleading. Roberts did not provide free advice to anyone. His firm did. Most large firms argue very few, if any, cases before the Supreme Court over the course of several years. Any law firm lucky enough to have Roberts in its employ and lucky enough to find itself arguing a groundbreaking case (regardless of which side) before the Supreme Court would naturally ask the resident expert for help. And as I understand it, Roberts offered some very discrete advice — taking no particular interest in the merits of the case — and could not even recall the case when asked about it on a questionnaire. Hardly persuasive evidence of an enthusiastic gay rights supporter.
To Mr. Piatak: I agree that the pressure on Roberts will be enormous to find a constitutional right to gay marriage, as I suspect most of his friends (i.e., the Washington elite–both Republican and Democrat) likely support it. But, as Roberts was reluctant to overturn a major piece of legislation by Congress, he will be more reluctant to overturn thousands of years of understanding across every civilization on what precisely a “marriage” is — particularly when the constitutional basis (including Supreme Court precedent) for overturning laws against gay marriage is so flimsy.
Roberts Is No Warren(0)
In light of the Obamacare ruling today from the Supreme Court, in his post below Mr. Richert not only compares Chief Justice Roberts to Chief Justice Warren but compares Warren favorably to Roberts! I have no doubt Warren would have joined in Justice Ginsburg’s concurring/dissenting opinion and held that Obamacare passes Constitutional muster under any of the theories argued to support it. Roberts opinion, on the other hand, is very narrow (as is the joint dissenting opinion of Kennedy, Scalia, Thomas and Alito). Depending on how you read Justice Thomas’ separate dissent, there are eight or nine justices who agree that universal health coverage is achievable by the federal government — the only question is by what means. And so the decision turned narrowly on whether the “penalty” for not buying health insurance (i.e., the “individual mandate”) is actually a “tax”, which all (or almost all) of the justices agree at least in theory would be an acceptable means by which to achieve universal heath coverage.
Although I disagree with Robert’s opinion on its legal merits, I believe he saw the writing on the wall that some form of universal health care is inevitable and to have overturned Obamacare in a 5-4 decision on very narrow grounds would have damaged the legitimacy of the Supreme Court, his Supreme Court in particular, one that is likely to be favorable to conservatives for at least the next several years and possibly decades if Romney is elected.
For what really upsets conservatives when they speak derisively about the Supreme Court? Is it the expansion of the federal government under the Commerce Clause? That battle was fought and lost in the ’30s when FDR threatened to pack the court with nominees friendly to the New Deal. No, what really rankles conservatives, is the radical social agenda that liberals often rely on the Court to impose on the country when the ignorant rubes and country bumpkins in flyover country aren’t coming along fast enough. That is precisely what the Warren Court is most known (and reviled) for and what subsequent Courts continued to do with stunning consistency until at least the ’90s.
When the Supreme Court is ultimately asked to rule on whether gay marr–excuse me, marriage equality–is required by the Equal Protection Clause, everything we know about Roberts to date suggests that he will be voting with Alito, Scalia and Thomas to uphold laws to the contrary. Were Earl Warren still chief justice with a majority consisting of men like William Brennan, William O. Douglas and Thurgood Marshall, you can be assured that gay marriage would be a reality in all 50 states today and probably a decade ago. Roberts is no Warren.
Vote for Romney (And Hope He Keeps his Promises)(0)
On Monday, the Supreme Court in Arizona v. United States struck down three of four challenged provisions of Arizona’s S.B. 1070, eliminating the law’s penalties and therefore leaving a shell of the former law in place. Not satisfied with this overwhelming victory, the Justice Department has helpfully set up a hotline for Arizona citizens who feel their “civil rights” have been violated by the “show me your papers” provision of the law, the one provision upheld. In time, the feds will likely go four for four.
What’s important, though, is what the majority opinion written by Justice Kennedy tells us about what can be done regarding the nation’s illegal immigration problem. The import of Kennedy’s opinon is simply this: The federal government is charged by the Constitution to regulate immigration and has established a complex and exhaustive regulatory scheme for immigration matters, and therefore most state laws with any real effect on illegal immigration will be “preempted” by the federal law in this area, regardless of whether the state laws actually directly conflict with federal law. (None of the S.B. 1070 provisions at issue actually do conflict with federal law, which its drafters were careful to ensure.) Lost in Kennedy’s highly technical opinion (they always are when the result is so absurd), is the fact that the federal government’s complex and exhaustive immigration regulatory scheme is selectively enforced at best and actively undermined at worst by federal officials, leaving states at the mercy of Democratic Party identity politics (and to a lesser extent, the Republican Party’s alliance with big business).
This point was made especially clear by President Obama when he recently announced that the federal government would stop enforcing immigration laws against illegal immigrants under 30 who have not committed serious crimes (except, of course, violating federal immigration law, which no one can now say is serious). Justice Scalia, in his powerful dissent, could not resist using the President’s euphemistic “deferred action” policy to illustrate exactly what is going on here, when he wrote, “So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?” The implicit answer in Kennedy’s opinion is an unequivocal “yes.”
The only alternative to federal enforcement of immigration law is apparently chaos at the border as it now exists. States can do nothing. Congress can do nothing. The courts can do nothing. The only means to stem (or reverse) the tide of illegal immigration is the presidency and its massive regulatory/enforcement apparatus. For the next several years then, the only hope is a President Romney that will actually keep his promises on illegal immigration. As readers of Chronicles know, that’s cold comfort.