Thursday, July 2, 2015

Supreme Court Wrap Ups (On Air Commentary)

The last several days have been a whirlwind of on air interviews about the Supreme Court's end-of-term decisions: Obamacare subsidies, same-sex marriage, lethal injection, etc.
Plus, at the state level, New York Court of Appeals Judge Susan Read announced her early retirement for the state's high court.

For anyone interested, here are links to a few of the interviews:
Fred Dicker: Live from the State Capitol! (6/30/15)
New York State STOPS...to hear Fred Dicker!
TUESDAY: ALBANY LAW SCHOOL PROF. VIN BONVENTRE: MY TAKE ON THE IMPORTANT ROUND OF NEW U.S. SUPREME COURT DECISIONS.
Link: www.talk1300.com/CMT/podcast/LiveFromtheStateCapitolJune302015.mp3 (@ 29:00 -49:00 mins) 
Fred Dicker: Live from the State Capitol! (7/31/15)
New York State STOPS...to hear Fred Dicker!
WEDNESDAY: ALBANY LAW SCHOOL PROF. VIN BONVENTRE PART II: A CONTINUING DISCUSSION ON THE U.S. SUPREME COURT'S FINAL DECISIONS, PLUS THE SIGNIFICANCE OF COA'S ASSOCIATE JUDGE SUSAN READ'S DECISION TO RETIRE.
Link: www.talk1300.com/CMT/podcast/LiveFromtheStateCapitolJuly12015.mp3 
(@ 29:30 - 49 mins) 

The John Gomez Show, LI News Radio (6/29/15)Gomez with Professor BonventreLink: https://soundcloud.com/jvcbroadcasting/gomez-with-professor-bonventre?in=jvcbroadcasting/sets/the-john-gomez-show-on-li-news

Capital Tonight (6/29/15)
Monday was the last day of the Supreme Court's term for this year, and while their two blockbuster decisions came last week the judges did weigh in on some big issues, including the death penalty and redistricting. Albany Law professer and New York Court Watcher blogger Vin Bonventre joined us to talk more about these issues.
Link: http://www.twcnews.com/nys/capital-region/capital-tonight-interviews/2015/06/29/vin-bonventre-062915.html#
Capital Tonight (6/29/15)
The US Supreme Court delivered a huge victory to President Obama today, upholding a key part of the Affordable Care Act.  That decision means millions of Americans across the country who enrolled through state health exchanges will not lose their insurance. Vin Bonventre from Albany Law School joined us to discuss.
Link: http://www.twcnews.com/nys/capital-region/capital-tonight-interviews/2015/06/25/vin-bonventre.html

Monday, June 29, 2015

Update--Supremely Polarized: Partisanship Continues to Prevail

(We'll return to the Recaps--last week's marriage decision and then today's on lethal injection. But first, let's update last week's "Supremely Polarized" post.)
We've discussed and documented the politically partisan voting on the current Supreme Court quite a bit on New York Court Watcher. We did so in a lengthy series in 2012. And a few days ago--with all the decisions released since then, it seems like years--we surveyed the Justices' voting in some of the tough, controversial cases already decided this term. (See Supremely Polarized: Partisanship Continues to Prevail.)

Let's now update that survey. In reviewing the list of decisions and the repeated line-ups among the Justices, ask yourself again: are they voting like politically neutral, objective judges, or like partisan politicians? Like independent minded jurists or political party faithfuls?
Texas Dept. of Housing v. Inclusive Communities Project, ruled that a claim of racial discrimination in housing may be based on "disparate impact" (i.e., harmful results) as opposed to a showing of intentionally discriminatory treatment.
5 (Kennedy [wrote Court's opinion] + Ginsburg, Breyer, Sotomayor, Kagan)versus
4 (Alito [wrote dissent] + Roberts, Scalia, Thomas)
Obergefell v. Hodges, ruled that same-sex couples have a constitutional right to marry.
5 (Kennedy + Ginsburg, Breyer, Sotomayor, Kagan)
versus
4 (Roberts + Scalia, Thomas, Alito)
Glossip v. Gross, ruled that lethal injection with the sedative midazolam has not been shown to create a significant risk of serious pain in violation of the prohibition against cruel and unusual punishment.
5 (Roberts + Scalia, Kennedy, Thomas, Alito)
versus
4 (Sotomayor + Ginsburg, Breyer, Kagan)
Arizona Legislature v. Arizona Independent Redistricting Commission, upheld the popularly voted initiative that created an independent commission to replace the legislature in deciding the state's voting districts.
5 (Ginsburg + Kennedy, Breyer, Sotomayor, Kagan)
versus
4 ( Roberts + Scalia, Thomas, Alito)
Michigan v. EPA, ruled that the Environmental Protection Agency must consider the cost of compliance when regulating the hazardous pollutants emitted from power plants.
5 (Scalia + RobertsKennedy, Thomas, Alito)
versus
4 (Kagan + Ginsburg, Breyer, Sotomayor)
In all fairness, let's add:
King v. Burwell, ruled that under the Affordable Care Act ("Obamacare") tax subsidies are available for purchases of insurance on federal exchanges, not only on exchanges actually established by a state.
6 (Roberts + Kennedy, Ginsburg, Breyer, Sotomayor, Kagan)
versus
3 ( Scalia + Thomas, Alito)
So there are the most recent decisions of the Court--the tough ones, with controversial issues.

Note that every case, but one, was divided 5-4 along politically partisan lines, with Justice Kennedy as the deciding vote.
In the one exception, King v. Burwell, the Obamacare subsidies case, Chief Justice Roberts joined Kennedy and the liberals, and wrote the opinion for the 6 Justice majority. But even in that case, all 4 Democratic liberals voted together in the majority, and the 3 most conservative Republican Justices voted together in dissent.

As I asked at the outset: are the Justices voting like politically neutral, objective judges, or like partisan politicians? Like independent minded jurists or political party faithfuls?
With an occasional exception, the answer seems obvious.

For a complete list of of these decisions--combining those above with those listed in the previous post--see the post below this one. (By electronic magic, it will appear as if posted prior to this one!)

(The combined list) Update--Supremely Polarized: Partisanship Continues to Prevail

Here's the complete list, combining those from Supremely Polarized: Partisanship Continues to Prevail and the Update.
(As in those previous posts, the Democratic Justices are in blue, the Republicans in red, and Kennedy in purple. (How clever.)

Gotta say it one more time: voting like judges or partisan politicians?
The list:
Alabama Legislative Black Caucus v. Alabama, upheld the claim of racial gerrymandering.
5 (Breyer [wrote Court's opinion] + Kennedy, Ginsburg, Sotomayor, Kagan) versus
4 (Scalia [wrote dissent] + Roberts, Thomas, Alito
Kerry v. Din, upheld the visa denial to a citizen's spouse without any judicial review.
5 (Scalia + Roberts, Kennedy, Thomas, Alito) versus
4 (Breyer + Ginsburg, Sotomayor, Kagan
Walker v. Texas Division, Sons of Confederate Veterans, upheld the state's refusal to allow a Confederate flag design on vanity license plates.
5 (Breyer + Thomas, Ginsburg, Sotomayor, Kagan) versus
4 (Alito + Roberts, Scalia, Kennedy
Brumfield v. Cain, ruled that the death penalty defendant was entitled to a mental disability hearing.
5 (Sotomayor + Kennedy, Ginsburg, Breyer, Kagan) versus
4 (Thomas + Roberts, Scalia, Alito
Davis v. Ayala, ruled that the death penalty defendant suffered no prejudice when trial judge permitted the prosecution--in the absence of the defense counsel--to offer race-neutral reasons for removing several jurors.
5 (Alito + Roberts, Scalia, Kennedy, Thomas) versus
4 (Sotomayor + Ginsburg, Breyer, Kagan
Kingsley v. Hendrickson, ruled that force used by jail officials on a pre-trial detainee must be objectively reasonable.
5 (Breyer + Kennedy, Ginsburg, Sotomayor, Kagan) versus
(Scalia + Roberts, Thomas, Alito)
Los Angeles v. Patel, invalidated a local law that permitted officials to search hotel guest registries without a warrant or the hotel's consent, and unannounced.
(Sotomayor +  Kennedy, Ginsburg, Breyer, Kagan) versus
4 (Scalia + Roberts, Thomas, Alito)
Texas Dept. of Housing v. Inclusive Communities Project, ruled that a claim of racial discrimination in housing may be based on "disparate impact" (i.e., harmful results) as opposed to a showing of intentionally discriminatory treatment.
5 (Kennedy [wrote Court's opinion] + Ginsburg, Breyer, Sotomayor, Kagan)versus
4 (Alito [wrote dissent] + Roberts, Scalia, Thomas)
Obergefell v. Hodges, ruled that same-sex couples have a constitutional right to marry.
5 (Kennedy + Ginsburg, Breyer, Sotomayor, Kagan)
versus
4 (Roberts + Scalia, Thomas, Alito)
Glossip v. Gross, ruled that lethal injection with the sedative midazolam has not been shown to create a significant risk of serious pain in violation of the prohibition against cruel and unusual punishment.
5 (Roberts + Scalia, Kennedy, Thomas, Alito)
versus
4 (Sotomayor + Ginsburg, Breyer, Kagan)
Arizona Legislature v. Arizona Independent Redistricting Commission, upheld the popularly voted initiative that created an independent commission to replace the legislature in deciding the state's voting districts.
5 (Ginsburg + Kennedy, Breyer, Sotomayor, Kagan)
versus
4 ( Roberts + Scalia, Thomas, Alito)
Michigan v. EPA, ruled that the Environmental Protection Agency must consider the cost of compliance when regulating the hazardous pollutants emitted from power plants.
5 (Scalia + RobertsKennedy, Thomas, Alito)
versus
4 (Kagan + Ginsburg, Breyer, Sotomayor)
In all fairness, let's add:
King v. Burwell, ruled that under the Affordable Care Act ("Obamacare") tax subsidies are available for purchases of insurance on federal exchanges, not only on exchanges actually established by a state.
6 (Roberts + Kennedy, Ginsburg, Breyer, Sotomayor, Kagan)
versus
3 ( Scalia + Thomas, Alito)
And if the foregoing isn't enough, the Court today ordered a halt ( a "stay") of the Texas laws that severely restricted the availability of abortions. Uhhh, by a 5-4 vote: Kennedy + the 4 liberals versus Roberts, Scalia, Thomas, and Alito. ("ORDER IN PENDING CASE,  WHOLE WOMAN’S HEALTH, ET AL. V. COLE, COMM'R, TX DHS.)

A dreadfully partisan court.

Saturday, June 27, 2015

Obamacare Subsidies Decision: Recap (part 2: the video)

As an appendix to the Recap on the immediately preceding post from earlier today, here's an interview with Liz Benjamin on her Capital Tonight.

Liz questions me about the Obamacare subsidies decision and about the housing discrimination case the Court decided the same day. She then turns to the recently announced retirement of New York Court of Appeals Judge Susan Read, and the dramatic change in the high court over the course of a few years--with Governor Andrew Cuomo being able to remake its entire membership.

Here's the link:
The US Supreme Court delivered a huge victory to President Obama today, upholding a key part of the Affordable Care Act.  That decision means millions of Americans across the country who enrolled through state health exchanges will not lose their insurance. Vin Bonventre from Albany Law School joined us to discuss.
Link:  http://www.twcnews.com/nys/capital-region/capital-tonight-interviews/2015/06/25/vin-bonventre.html

Obamacare Subsidies Decision: Recap

(Friday's marriage decision...Must be honest: Alleluia!
We'll recap that in the next post)

We previewed the Obamacare subsidies case a couple of weeks ago:
Supreme Blockbusters Coming: Marriage, Obamacare, Execution, & Confederate Flag (Part 2--Obamacare)
[BTW, called it! Both the outcome and the voting line-up. Of course, if you make predictions, every once in a while you'll get one right.]

Here's a recap of the specifics of the decision in King v. Burwell:

Decision
  • Tax subsidies are available for purchases of health insurance on the federally established markets ("exchanges"), as well as on those established by the states.
  • The vote was 6 to 3
  • Majority: Chief Justice Roberts, joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan [I.e., Roberts & Kennedy + the 4 liberals]
  • Dissent: Justice Scalia, joined by Thomas and Alito [I.e., the 3 most conservative Justices]
  •  [The decision basically saves the health insurance scheme under the Affordable Care Act (ACA "Obamacare"). Most insurance purchases under the law have been made through the federal exchanges because most states--under Republican control--have refused to set up their own state exchanges.]
Chief Justice Roberts' Opinion for the Court/Majority
  • The Massachusetts health insurance plan has succeeded in drastically expanding access to health care coverage [Roberts seems very positive about the Massachusetts plan, aka "Romneycare"]
  • The federal plan was modeled after that one
  • Essential to both plans is assistance to make insurance affordable to lower income purchasers
  • Under the ACA, the federal plan, states are authorized to establish exchanges, and the federal government is required to do so in states that don't
  • The "inartfully" drafted ACA provides that tax subsidies are available when insurance is purchased on "an Exchange established by the State"
  • Considering the entire law and its purpose, that provision must include what the law refers to as a federally established "such Exchange within the State" 
  • Otherwise, because the law restricts insurance purchases to an individual who "resides in the State that established the Exchange," purchases would not even be allowed on federally established exchanges and they would, thereby, serve no purpose whatsoever
  • Further, the unavailability of subsidies on federal exchanges would create "death spirals" in the health insurance markets that both the Massachusetts and federal plans were intended to avoid; the result would be "calamitous"

Justice Scalia's Opinion for the Dissenters
  • It is "quite absurd" to say that "Exchange established by the State" means "Exchange established by the State or the Federal Government"
  • We must presume that lawmakers mean the "natural and ordinary signification" of the words they use
  • The Court's majority has engaged in "somersaults of statutory interpretation" that will add confusion to "honest jurisprudence"
  • The majority's principle: "The Affordable Care Act must be saved"
  • The law should now be called "SCOTUScare"

To recap the recap:
1) Federal and state exchanges are to be treated equally--specifically for the availability of  tax subsidies for lower income purchasers of health insurance.
2) Roberts for the majority: "an exchange established by the state" should be interpreted in coordination with the entire law and its overriding purpose--hence, that phrase should be read to include a federal exchange established in a state that failed to set one up itself.
3) Scalia for the dissenters: the phrase means only what it says--no more, no less.

In the next post we'll recap the same-sex marriage decision.