Category Archives: Supreme Court

Pro-con: Was Hobby Lobby ruling correct?

supremecourtbldgSince March 2010, as the Obama administration turned the Affordable Care Act into federal regulations, few provisions grew as controversial as the mandate that most employers provide insurance coverage for contraceptives. The most disputed implication of that mandate, and the one at issue in a major Supreme Court ruling Monday, demanded coverage of contraceptives some employers view as tantamount to abortion because those methods can stop fertilized embryos from implanting in the womb. For many Americans, this so-called Hobby Lobby case (the plaintiffs include that retail chain) is about whether employees have a right under the health care overhaul to employer-provided contraception. Other Americans see the case as a test of whether the government can require companies to be indirectly complicit in abortions. For still others it’s about attacking or defending the Affordable Care Act, aka Obamacare. Five U.S. Supreme Court justices chose a different battleground. In the first sentence of a 49-page opinion, they framed the case as asking whether the 1993 Religious Freedom Restoration Act lets the government demand that closely held corporations “provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners.” In the very next sentence, the justices ruled that the RFRA’s protections of religious exercise outlaw the Obamacare regs that require such employers to provide the coverage. The ruling is narrowly tailored and, with its numerous qualifiers, doesn’t appear to create the slippery slope threats that the court’s dissenters imagine. Congress and the Obama administration can find ways to provide contraception without involving employers. For lack of that smarter move from the get-go, Obamacare has suffered another wound. We hope a pile of future memoirs explain why the White House didn’t find a less intrusive way of delivering the coverage. This decision angers many Americans. But it’s a logical extension of the Constitution’s intent to make ours a free and pluralistic society. – Chicago Tribune

In ruling 5 to 4 that “closely held” companies can refuse on religious grounds to include contraceptives in their employees’ health plans, the Supreme Court has needlessly interfered with an important provision of the Affordable Care Act. And it has done more than that. The specious reasoning in Justice Samuel Alito’s majority opinion could embolden employers to assert a “religious” right to deny other health benefits to their employees or to discriminate in other ways. And by stretching the meaning of a law intended to protect individuals, the decision threatens to fracture what has been a bipartisan support for reasonable accommodation of religious beliefs. A 1993 federal law, the Religious Freedom Restoration Act, allows a person to opt out of a generally applicable law under some circumstances if obeying it would “substantially burden” the exercise of his or her religion. Alito held, unpersuasively, that Hobby Lobby and the other companies qualified as “persons” and, even more absurdly, that making contraception available to employees who would make their own reproductive decisions was a “substantial burden” on the religious freedom of employers. Bad as it is, the decision could have been worse. The protection it offers is limited to “closely held” companies, sparing the courts from having to determine the religious beliefs of large companies with multiple shareholders and officers. Alito also insisted that the decision didn’t establish a general principle that a company could get around an insurance mandate by lodging a religious objection. But the logic of the decision would seem to cover a wide range of medical services that might offend Jehovah’s Witnesses, Christian Scientists and adherents of other faiths. Beyond the harm it does to women’s access to birth control, this ruling undoes the political consensus that led to the enactment of the Religious Freedom Restoration Act. Battle lines will soon be forming around whether the law should be amended or even repealed. That’s a lot of damage from one misguided decision. – Los Angeles Times

Kansans for Life credits Brownback for Alito

brownbackarmsupGov. Sam Brownback welcomed the U.S. Supreme Court’s Hobby Lobby decision, saying it “affirmed the right of religious freedom, one of the bedrock principles enshrined in our Constitution,” and “again rebuked a needless overreach of President Obama’s administration.” In its response to the ruling, Kansans for Life gratefully linked the opinion’s author, Justice Samuel Alito, to Brownback: “Alito’s appointment to the court would not have occurred had not our governor, then-U.S. Sen. Sam Brownback, led the resistance to President Bush’s 2005 nomination of Harriet Miers to replace the retiring Justice Sandra Day O’Connor.” Of course, Brownback has done plenty for the anti-abortion cause as governor, too, after having said in his 2011 State of the State address: “I call on the Legislature to bring to my desk legislation that protects the unborn, establishing a culture of life in Kansas.” As of early this year, Kansas had paid private law firms more than $1 million to defend anti-abortion laws enacted under Brownback.

Public wants action on climate change

coalplant3More than 6 in 10 Americans think action is needed to combat climate change, according to a new NBC News/Wall Street Journal survey. What’s more, 57 percent support requiring companies to reduce greenhouse gases, even if it would mean higher utility bills for consumers. Also, 67 percent support a recent Environmental Protection Agency proposal to set strict carbon dioxide emission limits on existing coal-fired power plants, which was not affected by a U.S. Supreme Court ruling Monday limiting some of EPA’s authority.

Court majority doesn’t understand danger of religious intimidation

churchstateThe reasoning process of the conservative majority (all five are Catholics) in ruling that legislative assemblies can start their sessions with prayers “is nothing short of horrific,” columnist Martin Schram wrote. “They just don’t get how intimidation happens. The four dissenters (three are Jewish, one is Catholic) understood the dangers of silent religious intimidation. It can be strong enough to shatter the wall of separation between church and state, built brick by brick by founders who expected it would forever make America special.”

Keep special legislative session focused and brief

Gov. Sam Brownback was persuaded of the need to call a $35,000-a-day special session of the Legislature on Sept. 3 to rewrite the state’s “Hard 50” law, because of questions about its constitutionality in the wake of a U.S. Supreme Court decision last month in a Virginia case. Brownback called the session Friday in response to Attorney General Derek Schmidt’s warning that at least two dozen murder cases could be affected. The Hard 50 sentences now in doubt include that for Scott Roeder, convicted of murdering Wichita abortion provider George Tiller in 2009. Now that Brownback has decided that a special session is unavoidable, it will be up to legislative leaders to keep it narrowly focused and brief.

Pro-con: Was same-sex marriage ruling the right decision?

Wednesday saw a triumph in the continuing struggle for equality in America. A divided Supreme Court rolled back two discriminatory laws, California’s Proposition 8 and a provision of the federal Defense of Marriage Act. Though not a total victory for those who believe gay and lesbian couples everywhere should be able to marry, the decisions nonetheless built upon and extended what has been a momentous half year for gay rights. Until the justices rule more forcefully, same-sex marriage advocates must look beyond the courts for action and toward democratic legitimacy. If Californians voted again on same-sex marriage, polls show that what was a close call in 2008 would be an easy win today. The court’s rulings Wednesday were welcome, but in essence they only affirmed how quickly the nation has moved away from prejudice and toward essential respect for all Americans. – Washington Post

It was outrageous for the Supreme Court to invalidate Section 3 of the Defense of Marriage Act and allow the potential invalidation of California’s Proposition 8, a law passed with the support of more than 7 million voters. Although Wednesday was a sad day for democracy and for marriage, this is not the end of the battle. The vast majority of states recognize marriage solely as the union of one man and one woman. Only 13 states and the District of Columbia recognize same-sex “marriage,” and nothing the Supreme Court just did changes that fact. If anything, the court’s opinion in United States v. Windsor, the DOMA case, shows that the federal government must respect the decision of states to define marriage as they choose. – Brian S. Brown, National Organization for Marriage

Top Kansas leaders mostly silent on same-sex marriage decisions

It was interesting that Kansas’ two U.S. senators and three of its four members of the U.S. House did not release official statements about the U.S. Supreme Court’s rulings on the Defense of Marriage Act and California’s Proposition 8, considering that in the past they have weighed in on big court decisions. Nor did Gov. Sam Brownback issue a statement Wednesday, and Attorney General Derek Schmidt did not respond to the Lawrence Journal-World’s repeated requests for comment about the impacts of the decision in Kansas. That left Rep. Tim Huelskamp, R-Fowler, to speak to and, some might assume, for Kansans in condemning the rulings and announcing his push to amend the U.S. Constitution to ban gay marriage. But former Gov. Kathleen Sebelius, now in President Obama’s Cabinet, tweeted: “Decision on #DOMA reaffirms the core belief that we are all created equal and must be treated as equal; victory for families, #equality.”

UPDATE: Late Thursday afternoon Pompeo’s office called our attention to a statement posted on his website during the day: “The court’s attack on marriage – as defined as between one man and one woman – is both sad and counter to the most profound tradition of our great nation. As an attorney and a conservative, I am confounded by the Supreme Court’s bizarre set of decisions that found DOMA unconstitutional and didn’t rule on the merits of Prop 8. The Supreme Court has taken the position of refusing the right of Congress to legislate federal law based on the will of the people. This is a travesty. I remain dedicated to strengthening the institution of traditional marriage.” In addition, when asked about the decisions Thursday, Brownback said he was reviewing them before making a statement, according to the Lawrence Journal-World’s Scott Rothschild.

Big day for gay rights

Though they stopped short of declaring there is a constitutional right to same-sex marriage, Wednesday’s decisions by the U.S. Supreme Court on the Defense of Marriage Act and California’s Proposition 8 will stand together as a milestone in gay rights. Opponents can be expected to push harder for a federal constitutional amendment banning same-sex marriage, and the rulings won’t affect the state laws and amendments barring it, such as in Kansas. But they mean that same-sex married couples are entitled to federal tax and other benefits, and presumably that gay marriages will resume in populous California as they continue in 12 other states and the District of Columbia. The 5-4 decisions found the court about as split as the American public, 51 percent of which supports same-sex marriage. But they also signal that legal recognition of same-sex marriage is inevitable – just as 72 percent of Americans believe it to be.

Supreme Court bias in the eye of beholder

As the U.S. Supreme Court considers how to rule on two same-sex marriage cases, its favorability rating is at a near historic low – though it is sky-high compared with Congress. A Pew Research Center poll found that 52 percent of Americans view the court favorably, while 31 percent view it unfavorably. Overall, 40 percent of the public considers the court’s ideology to be “middle of the road,” while 24 percent says it is liberal and 22 percent says it is conservative. However, 45 percent of conservative Republicans think the court is liberal, while 48 percent of liberal Democrats think it is conservative – showing how bias often is in the eye of the beholder.

Majority backs Roe decision, but opponents most motivated

Seventy percent of Americans want the Roe v. Wade ruling upholding abortion rights to stay, while 24 percent would like it overturned, according to a NBC News/Wall Street Journal poll that came out on the 40th anniversary of the U.S. Supreme Court’s decision. So why is abortion still such a significant issue in politics? One reason is that 74 percent of those who support overturning Roe consider abortion a “crucial issue” or “one of many crucial issues,” according to a Pew poll, while only 31 percent of Roe supporters consider abortion a crucial issue.

Is covering the uninsured ‘not the issue’?

Pressed repeatedly by Fox News anchor Chris Wallace about the GOP health care alternatives, Senate Minority Leader Mitch McConnell (in photo), R-Ky., finally responded that reducing the number of people who are uninsured is “not the issue” for the GOP. Neither apparently is prohibiting insurance companies from denying coverage to people with pre-existing conditions (which was a main reason for the individual mandate). “As the conversation turns to the specifics in the law, and to the fact that Republicans wouldn’t replace them with anything,” wrote Greg Sargent of the Washington Post, “Republicans’ best hope will be that the law’s generalized unpopularity will enable them to persuade the American people that the question of whose policies would actually cover the uninsured is ‘not the issue.’”

GOP doesn’t talk about disclosure anymore

Many GOP lawmakers used to argue that the best campaign-finance solution was to lift limits on donations but require immediate, full disclosure. But Fred Hiatt, editorial page editor at the Washington Post, noted that most Republicans don’t talk about disclosure anymore. Why? The U.S. Supreme Court’s Citizens United decision has resulted in a flood of corporate money favoring Republicans, much of it undisclosed. “The playing field has tilted toward Republicans, and they’re in no hurry to tilt it back,” Hiatt wrote. One GOP lawmaker who is still raising alarms is Sen. John McCain, R-Ariz. He called the Citizens United decision “misguided, naive, uninformed, egregious,” and he lamented the huge amounts of money that are now pouring into politics (some of which may originate overseas, he warned). “I just wish one of them had run for county sheriff,” McCain said of the Supreme Court justices. Meanwhile, Senate Minority Leader Mitch McConnell, R-Ky., defended the lack of disclosure as protecting free speech, arguing that the government or activist groups on the right or left might use such disclosures to target and intimidate citizens.

Kansans at odds with justices on immigration, health care

If it had been up to Kansans, rather than the U.S. Supreme Court, to pass judgment on the Arizona immigration law and “Obamacare,” last week’s decisions would have gone the other way. In a SurveyUSA poll, sponsored by KWCH, Channel 12, 55 percent of those Kansans surveyed said states should have a right to create immigration laws that pre-empt federal law, and 52 percent disagreed with the high court’s decision that it was unconstitutional for Arizona to make it a state crime for illegal immigrants to work in the state. After the court upheld the health care reform law, 52 percent of Kansans polled by SurveyUSA said they disagreed with the decision, and 59 percent said people should be allowed to choose whether to have health insurance. But 79 percent said insurance companies should be required to cover everyone who wants to buy insurance – an endorsement of the law’s requirement that pre-existing conditions not be a basis for coverage denial (which also necessitates the mandate to buy insurance).

Pro-con: Was court’s health care ruling correct?

The U.S. Supreme Court’s 5-4 decision upholding the core of the Affordable Care Act is good news for the court and the country. Chief Justice John G. Roberts was statesmanlike in choosing to side with four more liberal justices in finding that the law’s most controversial provision, the mandate that individuals obtain health insurance, was a constitutional exercise of Congress’ power “to lay and collect taxes.” That solution allows the main provisions of the law to take effect. Even more important, it is respectful, as the court should be, of congressional authority and the democratic process that underlies it. Many Americans were watching the court to see whether, at a time of extreme partisanship, it could craft a decision that impressed as an act of law, not politics. In our view, the court passed that test of legitimacy. Now the arguments over Obamacare can continue where they are best fought out, in the political arena. – Washington Post

If there is a modicum of hope in Chief Justice John Roberts’s inglorious one-man opinion, it is that Americans were reminded again that they cannot count on others to protect their liberty. Certainly judges aren’t reliable. They can be turned by the pressure of the media and the whims of vanity. If Americans want to repeal Obamacare, their only recourse is to demand it at the ballot box in November. The Affordable Care Act is more unpopular now than when it passed, yet it will grind on toward implementation in a second Obama term. The president made that clear in his remarks Thursday, deploying the usual half-truths he used to jam the law through Congress. He continued to claim that no one will lose his current health insurance, though millions are sure to do so as they are dropped from business coverage and tossed into Medicaid or government exchanges. – Wall Street Journal

It’s official: Obamacare is constitutional

After all the contentious debate, the U.S. Supreme Court has finally settled it: The federal health care law is constitutional, including the individual mandate. But the politics of the law are far from settled, as it will be a campaign issue in the coming presidential and congressional elections, and Congress is sure to continue fighting about it. Though some may have been stunned by the court’s ruling, it wasn’t a huge surprise. Two federal appeals courts had upheld the law, and past court rulings set precedents that would be difficult to ignore. What perhaps was most surprising was that the deciding vote in the court’s 5-4 decision came from Chief Justice John Roberts. Also of note: The court based its decision on Congress’ authority to tax, not on the commerce clause.

Arizona ruling no victory for either side

It was a big stretch for Arizona Gov. Jan Brewer to call the U.S. Supreme Court’s ruling on her state’s immigration law “a victory.” The high court tossed out much of the law, which Kansas Secretary of State Kris Kobach helped write. The state “may not pursue policies that undermine federal law,” the court wrote. For now, the court did let stand the law’s requirement that police officers check the immigration status of those they detain if there is “reasonable suspicion” the person is an illegal immigrant. But even that provision could face additional legal challenges, said the justices, who want the issue first heard by state courts. The Supreme Court’s ruling isn’t much of a victory for the federal government, either. It was the feds’ failure to enforce immigration law, and Congress’ failure to create a workable and responsive immigration system, that caused some states to take matters into their own hands.

Kansans favor public prayers

Fifty years after the U.S. Supreme Court nixed school-initiated prayers as a violation of the First Amendment, 74 percent of Kansans think that public schools should open their day with either a spoken prayer (36 percent) or a silent one (38 percent), according to a SurveyUSA poll conducted for KWCH, Channel 12. Similarly large majorities also favor some kind of prayer to open local and legislative meetings, with 71 percent saying it’s OK for such prayers to mention Jesus. Though 58 percent of those surveyed said they’d be willing to listen to a public prayer in a religion other than their own, 54 percent said it would be unacceptable for a prayer to mention Allah in a public meeting where the majority of citizens are Muslim.

Sebelius says there’s no post-Obamacare contingency plan

Given how the oral arguments on the Affordable Care Act seemed to go, shouldn’t the Obama administration have a backup plan ready in case the U.S. Supreme Court declares the law unconstitutional? “Probably so,” Health and Human Services Secretary Kathleen Sebelius said last week. But it doesn’t. “That isn’t where conversations are headed right now, and I’m confident that it is constitutional,” the former Kansas governor added.

Several Kansas officials backing Arizona law

The Kansas Legislature and Gov. Sam Brownback have wisely shown little interest in Arizona-type legislation to combat illegal immigration. But several state officials have signed on in support of the Arizona law, which has been blocked by the courts and will be considered by the U.S. Supreme Court on April 25, the Lawrence Journal-World reported. In addition to Secretary of State Kris Kobach, who helped write the Arizona law, Kansas Attorney General Derek Schmidt and U.S. Reps. Mike Pompeo, R-Wichita, and Lynn Jenkins, R-Topeka, are officially defending the law. “In light of the federal government’s refusal or downright ineptitude in protecting American citizens along our southern border, Arizona should have the power to deter illegal immigration in accordance with federal standards,” Jenkins said. Among those formally opposing the Arizona law are former Kansas Attorneys General Steve Six and Robert Stephan.

Obama should have kept quiet about Supreme Court

President Obama shouldn’t have suggested Monday that U.S. Supreme Court justices would be guilty of “judicial activism” if they disregarded the will of Congress and overturned the federal health care law. Presidents should avoid commenting on pending court cases, and his comments could add to the public’s cynicism about the justice system. That said, some conservatives are overplaying it in claiming that Obama tried to bully the court, and they have no standing to complain about criticisms of the court. For years they have disparaged judges for being “activist.”

Judgment day begins on health care law

Oral arguments began today before the U.S. Supreme Court in the challenge to the federal health care law. Kansas is one of the states opposing the law. Attorney General Derek Schmidt wrote a commentary in the Sunday Eagle that summarized the states’ case. “We are challenging the authority of the federal government to commandeer American citizens (through the individual mandate) and to commandeer state taxpayers (through the required Medicaid expansion) in pursuit of Washington’s objectives,” Schmidt wrote. “No matter the nobility of its purpose, Congress may not use extra-constitutional powers that it simply does not possess.”

Pro/con: Should Supreme Court uphold health care law?

Two years ago, Congress passed and President Barack Obama signed the Patient Protection and Affordable Care Act, a landmark, once-in-a-generation legislation that was decades in the making.
Having lost that argument through the democratic process, the Republicans and their allies are now seeking to have the Supreme Court overturn the ACA by judicial fiat.
That’s right – the same people who complain endlessly about the overreach of “activist judges” now want to use the highest court in the land to reverse the will of the people as expressed through their elected representatives.
The Affordable Care Act is not even fully implemented, yet it’s already making a powerful difference in the lives of the American people.
Today, already 2.5 million young adults have gained health coverage, thanks to the ACA provision that allows them to stay on their parents’ plans until age 26. And last year, 3.6 million seniors saved a total of $2.1 billion on pharmaceutical costs, with the closing of the “donut hole” coverage gap written into the 2003 Medicare Part D prescription drug bill.
And there are more benefits to come, if the Supreme Court upholds the law and allows the bill to take full effect. By 2014, at long last, your insurance company will no longer be able to discriminate against you because you have a pre-existing health condition.
It is wrong-minded to dismantle or undermine a plan that will work.
Rep. Lynn Woolsey, D-Calif.
The Patient Protection and Affordable Care Act is unconstitutional down to its very DNA. The Supreme Court can save itself and the country years of litigation by striking down the entire law when it issues its decision this summer.
The individual mandate should be struck down because it isn’t protected under the Commerce Clause.
The law also requires states to expand their Medicaid programs to cover families earning up to $30,000 a year. Lawyers for the 26 states that are challenging the law will tell the court during oral arguments this violates the Tenth Amendment’s protection of states’ rights.
The Affordable Care Act bashes into the Constitution at every turn because it is fundamentally in conflict to the essential founding principles of this country – freedom and the sovereignty of states and citizens. It turns control over one-sixth of our economy to the federal government, ceding life and death decisions to the state.
The law is wrong for America, and the sooner the Supreme Court overturns it, the sooner we can get on the path to patient-centered reform that fits our economy – and our Constitution.
Grace-Marie Turner, Galen Institute

Pro-con: Should there be a check on the courts?

No doubt the court must check the president and the Congress when they exceed their powers. But who is checking the court when it violates the Constitution? Under a system of judicial supremacy, the answer is simple: no one at all. Rather than having ambition counteract ambition, a system of judicial supremacy assumes that judges are angels while allowing their ambitions for power to roam free. This explains why Thomas Jefferson once said that such a system would produce “the despotism of an oligarchy.” It is a dangerous despotism indeed. The same court that gave us Brown v. Board of Education also gave us the right to slavery in Dred Scott v. Sandford, the internment of the Japanese in Korematsu v. United States, and the deaths of 50 million unborn citizens in Roe v. Wade. It is the same court that flouted its own precedents and common sense to give terrorists the right of habeas corpus in Boumediene v. Bush, a 2008 decision that Justice Antonin Scalia said “will almost certainly cause more Americans to be killed.” The ultimate guardian of the people’s liberties must be the people themselves. — Newt Gingrich, in USA Today

Gingrich’s newest harebrained crusade is to strip courts of the right of judicial review, which our republic has managed to live with since the Supreme Court headed by John Marshall (arguably America’s first great conservative) propounded it in 1803. If Congress or the president doesn’t like a court decision, Gingrich thinks the offending judges should be called before Congress — U.S. marshals could haul them in — to justify their decision. If Congress didn’t like the explanation, the lawmakers could impeach them. Gingrich insists that he understands there are three separate branches of government, but their larger purpose seems to elude him. The president and Congress are supposed to represent the will of the people, whom they serve by virtue of democratic election. In the broadest sense, they represent the principle of majority rule. The courts act as a check on majority rule by protecting the legal rights of minorities against the abuses of the majority. If the courts had been subjected to congressional overrule during the 1950s, when Southern segregationists chaired most key House and Senate committees, it’s not clear when or how the South’s schools would have been desegregated. — Harold Meyerson, Washington Post

Schmidt right about need for court to act

The constitutional challenges to the health reform law would have played out without Kansas’ help, which is why Attorney General Derek Schmidt should have followed his predecessor in keeping Kansas and its tax dollars out of the fight. But as he joined 25 other state officials from around the country last week in petitioning the U.S. Supreme Court to rule on the Affordable Care Act during the term that starts Monday, Schmidt was right about one thing: “States need certainty. Americans need certainty. This dispute needs to be settled.” The sooner the high court settles the constitutionality issue, the sooner U.S. businesses can know whether they need to comply with the law. If it’s overturned, of course, 49.9 million Americans still will lack health insurance, and the dysfunctional Congress is in no position to help them.

High court should expedite health reform ruling

Former Kansas Attorney General Robert Stephan wants the U.S. Supreme Court to hurry up and weigh in on the constitutionality of the health reform act, much as the court expedited Bush v. Gore in 2000. “A case may be taken by the Supreme Court before judgment upon a showing that the case is of such public importance as to justify deviation from normal appellate practice as to require immediate determination by the court,” wrote Stephan in a Kansas Health Institute News Service commentary. “If there ever was a case of public importance that would justify deviation from normal appellate practice, it is the Patient Protection Affordable Care Act.”