Judiciary

Could Florida Decide the Election Again?

Ian Millhiser in Think Progress: “Elections are not simply fought out at the polls … after legislators enact laws that could change who actually gets to cast a ballot, elections are fought in courts as well.”

“As election law expert Rick Hasen notes, there is already one early sign that Scalia’s death has moved the Court’s center of gravity in voting rights cases. After a lower federal court held that two of North Carolina’s congressional districts are unconstitutional racial gerrymanders, many experts (including Hasen) expected the Supreme Court to stay this decision. It didn’t.”

“Because the Court denied such a stay without explanation, it is impossible to know what the vote was among the justices or why the stay was not granted. Nevertheless, as Hasen explains, the Court’s decision in this North Carolina case may be a sign that the justices will no longer keep such a tight leash on lower court judges who decide voting rights cases close to elections.”

Of the ten closest states in the 2012 presidential election, half (North Carolina, Virginia, Pennsylvania, Nevada, and New Hampshire) are located in federal appellate circuits with fairly solid left-leaning majorities. Meanwhile, two states, Iowa and Ohio, are located in conservative circuits. The remaining states, Colorado, Florida and Wisconsin, are located in circuits that are evenly divided or that are close to evenly divided … The biggest wildcard, meanwhile, may be Florida.

Most Americans Want Senate to Act on SCOTUS Nominee

Pew: “In the high-stakes battle over replacing Justice Antonin Scalia on the Supreme Court, a majority of Americans (56%) say the Senate should hold hearings and vote on President Obama’s choice to fill the vacancy. About four-in-ten (38%) say the Senate should not hold hearings until the next president selects a court nominee.”

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“Two-thirds of Republicans (66%) – including 71% of conservative Republicans – say the Senate should not hold hearings on Scalia’s replacement until the next president selects a nominee. An even larger share of Democrats (79%) say the Senate should hold hearings and vote on whomever Obama nominates; among liberal Democrats, fully 85% express this view.”

When a 4-4 Supreme Court is a Good Thing

Five Thirty Eight: “We can’t know for sure which lower-court decisions would have been reversed on 5-to-4 votes at the Supreme Court this term. But we can guess, using two sources of Supreme Court prediction: the {Marshall}+ algorithm and the wisdom of the crowd competing in everyone’s favorite Supreme Court/fantasy sports mashup, FantasySCOTUS:”

Voting rights: Wittman v. Personhuballah

“This case originated from a redistricting ruling in Virginia. A lower court held that race played too strong a role when the state legislature redrew the boundaries of a Virginia congressional district. The court said the district, Virginia’s Third, was gerrymandered because the legislature packed black voters into its boundaries in a way that diluted their vote in other districts. Republicans appealed that ruling to the high court. Scalia was seen by FantasySCOTUS as very likely to vote to overturn the lower court’s ruling.”

Unions: Friedrichs v. California Teachers Association

“This is a case involving the ability of public-sector unions to collect the equivalent of dues from workers who choose not to join the union. The unions say that if they lose that ability, they will not be able to effectively bargain with government employers, but the justices — and particularly Scalia — seemed unsympathetic to that position during oral arguments in January. Scalia’s death may allow these unions, with a combined membership of more than 9 million public workers, to avoid a loss, at least for the time being.”

Supreme Court’s Action on Obama’s Climate Plan: Opportunity or Disaster?

Michael Gerard, writing in Yale Environment 360 argues that the Supreme Court’s stay on Obama’s Clean Power Plan is “one of the most environmentally destructive actions the court has ever taken.”

“By acting as it did, the Supreme Court shut down the most important actions being taken by the United States to address the greatest environmental challenge ever faced … almost no one expected the Supreme Court to halt the preliminary planning work; after all, the first compliance period does not begin until 2022. The Clean Power Plan was the centerpiece of the U.S. pledges at the Paris climate conference last December, and there was immediate fear that the stay would give other countries an excuse to back off on fulfilling their own pledges.”

David Victor, however, argues that the Court’s action creates an opportunity: “Troubles with the Clean Power Plan will create an opportunity for the United States to demonstrate how countries can deal with the reality that in every nation it will be difficult to plan precisely the necessary deep reductions in warming pollution. It is in the United States’ acute national interest to show how the system established in Paris can bend and adjust, rather than break, in the face of challenges like the one presented last week by the U.S. Supreme Court.”

“In updating the world on what’s actually happening within the United States, the government can point to the many other policies that remain in place even if the Clean Power Plan gets stalled — such as the extension of tax incentives for renewable power, which was part of the budget deal reached between the Obama administration and Congress last December.”

Scalia: Controversial, Yet Unknown

Gallup: From the American public’s perspective, Supreme Court Justice Antonin Scalia “was one of the high court’s controversial figures. In July of last year, popular perceptions of the conservative jurist were evenly divided, with 29% seeing him favorably and 27% unfavorably. Scalia, whom one prominent legal scholar named “the most influential justice of the last quarter-century,” was nonetheless unknown to nearly a third of Americans (32%) and generated no opinion from another 12% in 2015, Scalia’s 29th year on the nation’s top court.”

Trend: Favorability of Supreme Court Justice Antonin Scalia

“Interestingly, the modest erosion of Scalia’s popularity over the past 15 years came primarily not from increased Democratic hostility to the Republican-appointed judge but rather because of souring Republican views. In 2015, Scalia’s ‘net favorable’ rating — the difference between his favorable and unfavorable ratings — among Republicans was +6, down considerably from +36 in 2005. This drop — the largest among any of the three major political affiliations — may have been a bitter pill to swallow for one of the court’s most reliably conservative votes.”

z’Paralleling Scalia’s declining popularity among Republicans has been a striking increase in unfavorable views of him among conservatives. In 2005, 36% of conservatives viewed Scalia favorably, compared with 7% who had an unfavorable view. In 2015, Scalia’s favorable rating with conservatives held steady (34%), but his unfavorable rating surged to 26%. Somewhat unexpectedly, Scalia’s 2015 net favorable score among conservatives (+8) was about on par with his score among moderates (+6).”

 

How an Obama Nominee Could Win Senate Confirmation

Charles Cameron and John Kastellec in The Washington Post argue that an Obama Supreme Court nominee could win confirmation in the Senate.

Using the statistical model in that paper and the ideologies of current senators, we can estimate the support that a given nominee of any ideological persuasion would receive. We’ll assume a high quality nominee and intense interest group mobilization (similar to that in the nomination of Justice Clarence Thomas).

“The horizontal axis depicts the ideology of the nominee, moving from extremely liberal to moderate  to conservative. For every potential nominee, we estimate how each senator would vote, and then sum the total number of yes votes, which is depicted on the vertical axis.”

“The five names in black type depict the current median on the court (Kennedy) as well as the court’s four liberals. The short bars at the top of the figure show the ideological locations of every senator, with Democrats in blue and Republicans in red.”

“The model does identify a range of nominees who could thread the confirmation needle. In the graph, the justices in purple serve as reference points for nominees who (roughly speaking) lie between the 50-vote threshold and Kennedy.”

Would Scalia Approve of GOP’s Delay Tactics?

Ezekiel Emanuel in The Washington Post argues that “a true ‘originalist’ would reject the Republican position” of blocking a presidential supreme court nominee in “order to defer to the American people.”

“An originalist would begin by looking at what the Constitution says about choosing a Supreme Court justice. An originalist would note that the framers clearly wanted the court to be insulated from the people’s wishes. To put them above the clash of politics, the Constitution gave justices lifetime appointments, to which they were nominated, not elected. Furthermore, justices were nominated by a president who was elected by an Electoral College — not the American public — and confirmed by a Senate elected, at the framing, by state legislatures — again, not the public. Originalism clearly argues against deferring to public opinion on the composition of the Supreme Court.”

“The history of the founding generation itself also makes clear that the framers wanted the Supreme Court nomination and confirmation process not to depend upon the outcome of an election.”

Even With a Republican Win, How Obama Could Win the Supreme Court Battle

Ari Melber of NBC News argues that “even if the Senate refuses to confirm Obama’s pick and a Republican wins the White House, there is one way Obama can still get his nominee confirmed.

“It could all come down to 17 crucial days in January.”

“If Democrats win back the Senate and lose the White House in November, they would control both branches of government for about two weeks before Obama leaves office. That overlap in the transition of power is set in stone. The Constitution mandates the new Congress begins work on January 3, while President Obama stays in power until January 20.”

“So if Democrats take back the Senate, President Obama could send a Supreme Court nominee to that new Democratic majority, which would have 17 days to change the filibuster rules and ram in a vote before a new President takes power.”

“Democrats could apply the ‘nuclear option’ to Supreme Court nominations, and vote in Obama’s nominee by a simple majority.”

“The prospect of a January power play sets up a potential alternative outcome — where the Supreme Court vacancy actually turns on the result of the Senate races.”

“In fact, if Republicans completely block a ‘consensus’ Obama nominee all year and then lose the Senate, Obama might be tempted to appoint an even more liberal replacement for Scalia in January.”

History Supports Obama Naming a Supreme Court Nominee

Timothy Huebner in The New York Times argues that “President Obama has constitutional and historical precedent on his side and should announce a nominee.”

“In fact, history supports Mr. Obama. On 13 occasions, a vacancy on the nation’s highest court has occurred — through death, retirement or resignation — during a presidential election year. This does not include the most recent and frequently cited example, Justice Anthony Kennedy, who was nominated by Ronald Reagan in November 1987 to fill a vacancy and won confirmation from a Democratic-controlled Senate in February 1988.”

“In 11 of these instances, the Senate took action on the president’s nomination. In all five cases in which a vacancy occurred during the first quarter of the year the president successfully nominated a replacement.”

“To be sure, the Senate has rejected nominees for political reasons, increased the size of the court (for instance, during the Civil War) or reduced it (immediately after the Civil War). But in cases when vacancies have arisen during election years, the weight of history is clearly on the side of the president naming a successor and the Senate acting on that nomination.”

“The Republicans, who frequently cite the Constitution and look to historical precedent, have an opportunity to be true to their principles. They should ignore Donald Trump’s urging to ‘delay, delay, delay,’ and help ensure our Constitution functions as it should — and as it has in the past.”

Despite SCOTUS Decision to Stay Climate Plan, Stakeholders Forge Ahead

Inside Climate News: “Not all states are suspending work on the Clean Power Plan despite the Supreme Court’s bombshell decision [last] Tuesday to put a temporary hold on the tight new rules that are at the heart of the Obama administration’s climate policies.”

“Officials from more than a dozen states said they will continue the work they had already begun to comply with the plan. That includes meeting with stakeholders, modeling energy and emissions scenarios and writing early drafts of implementation schemes that would fulfill the plan’s requirement for states to steeply cut carbon dioxide emissions from coal-fired power plants over the next several decades to combat global warming.”

“‘We haven’t taken our foot off the gas pedal,’ said John Quigley, secretary of the Pennsylvania Department of Environmental Protection.”

“The Virginia Department of Environmental Quality will hold a previously scheduled stakeholder meeting on Friday, Mike Dowd, director of the agency’s air division, told InsideClimate News.”

Mary Anne Hitt in Eco Watch argues that the Supreme Court’s decision won’t stop “the steady progress of the Sierra Club and our allies to retire coal plants and replace them with clean energy. As we outlined in a report released late last year, our strategy gives us a pathway to meet our climate targets, even as the Clean Power Plan makes its way through the courts.”

“With grassroots power and market forces on our side, the U.S. will remain on track to meet our Paris commitments in the electric sector.”

Does the Future of the Climate Depend on the Supreme Court?

Zoe Carpenter in The Nation: Here’s the bad news about the Supreme Court’s decision to issue a stay ruling on the Environmental Protection Agency’s Clean Power Plan: “Although the justices did not explain their order, the 5-4 decision indicates that the majority think the challengers have a decent chance of winning their case.”

What’s remarkable about the stay is that the Supreme Court chose to step in even before lower courts had a chance to review the case … Just a few weeks ago a federal appeals court refused to block the plan, a move that was interpreted as a victory for the Obama administration. That court will hear oral arguments in early June, though it’s likely the Supreme Court will decide the fate of the plan. Until it does, states won’t be required to comply.”

Joe Romm in Think Progress: “If the Roberts court ultimately decides to kill the rule 5-4 then that decision will immediately become the leading contender for the worst Supreme Court decision in U.S. history. After all, if the nations of the world ultimately don’t avoid catastrophic warming and if the U.S. is seen as bearing a significant portion of the blame — two entirely plausible outcomes — then future generations and historians will be judging the Court’s decision while suffering in a world with a climate that has been irreversibly ruined for centuries.”

“That means the future of the climate will depend on the future shape of the Supreme Court and whoever wins the presidency this year. Yes, once again, this is the most important election ever for the climate.”

 

Has Obamacare Increased Abortion Restrictions in the U.S.?

The Kaiser Family Foundation 1/21/16 newsletter reports that “on the eve of the anniversary of the Roe v. Wade decision, a new Kaiser Family Foundation analysis finds 25 states either bar abortion coverage in Affordable Care Act (ACA) marketplace plans or limit it to cases of rape or incest or when the woman’s life is endangered. In an additional six states, no 2016 ACA plans offer abortion coverage despite the absence of state legislative restrictions (Delaware, Iowa, Minnesota, Nevada, West Virginia and Wyoming). In three states without bans, plans that include abortion coverage are unavailable in at least one county (Colorado, Illinois and Texas).”

Availability of Abortion Coverage through Marketplace Plans, 2016

“Although the number women gaining access to health insurance coverage is rising, an increasing share of women are facing limitations in the scope of that coverage when it comes to abortion services.  The impact of the abortion coverage restrictions disproportionately affects poor and low-income women who have limited ability to pay for abortion services with out-of-pocket funds … While millions of women have gained health insurance coverage as a result of the ACA insurance expansions, many are enrolled in plans that restrict the circumstances in which abortion services will be covered.”

The Next SCOTUS Appointments Will Shape Political Power in the U.S.

Lawrence Norden in The Atlantic: “For the last 10 years, the Supreme Court has engaged in a systematic effort to transform American democracy … This year, the Court will decide a voting and redistricting case that could change the lines of virtually every state legislative district in the country. There is no area of the law the Roberts Court has more thoroughly transformed.”

“There are few issues in the last decade on which the Court has been so consistently and bitterly divided as it has over campaign finance law … On the Court, that swing back only requires one new or existing justice to adopt the approach of four current members. A shift in the Court could permit reasonable regulation of big money in politics. To be sure, state and federal legislators would need to pass new laws to regain the ground that has been lost, and mere reversal of campaign-finance decisions of the last decade would not solve all of the problems of excessive influence. Because of older Supreme Court decisions, for example, new laws still could not limit the total amount of spending in any election.”

“Still, it is no exaggeration to say that the next appointments to the Supreme Court will have a profound impact on political power in the United States. The appointment of one or more justices who agree with the five-member majority might solidify the current system for decades to come. By contrast, appointment of one or more justices who share the vision of the Court’s four-member minority could bring substantial power over elections and the political process back to ordinary Americans.”