A weekend summary before the final push.

 SCOTUS issued opinions on several cases since the last post- some of which were expected, and others which appeared, by virtue of the final decisional makeup. First off, the third (and likely last) Obamacare ruling came down in favor of keeping the law, without the mandate and penalty, intact. Opponents, most of which were represnted by their state attorneys general, tried to defeat the law in its entirety by arguing that the law without the mandate and penalty was a house of cards that should be overturned. The Court found that the states could not prove any direct injury- likely because the states are not directly responsible for any funding except as it relates to the expanded medicaid provisons funded by states. Absent injury, there is no case or controversy which the Court can decide. 

This case shows, more clearly than ever, that the Court is bowing out of this pollitical fight. The real fight was in the first case, and having Roberts convert the commerce regulation into a tax, ended that issue. However controversial, the law stands, and now the only issue is political. How costly, absent the funding means designed to help pay for it, will it become. In the end, the single payer option looks almost as attractive if the cost of care is unlimited and the program can be hidden in the trillion dollar plus annual deficits the National government has been creating. 

On several other cases, immigatrion, and the GLBT adoption case, the Court surprisingly came down with 9-0 decisions. That does not mean that on each issue, on each point, each member agreed with the reasoning of the majority. In fact, in the GLBT case, the reasons for arriving at the decision were quite different. This means that the ruling can be only inferentially relied on, that in another case with similar facts, the ruling could be different. 

It also signals, and this is what I think might be the most significant, that this is a very fluid court, with members willing and able to align themselves with ideas and not ideology, with clear points of law and not broad legal theory. 

Justice Kavanaugh is surprisingly carving out a place for his own views, which are Scalia-like, but less politic. He has signaled in strong terms, his lack of reluctance to overrule precedent long thought established beyond touch. If wrong originally, if incorrectly decided, it ought to be overruled. If looking for a legacy, Kavanaugh knows it will not come via compromise with those who he can never appease. Watch this closely, as the Mississippi abortion case comes forward next term. That, I opine, that may be his legacy. 

Kurt

An addendum

 SCOTUS also considered a case that resulted from its decision last term that essentially determined that much of present-day Oklahoma is part of the 1866 treaty boundary of the Five Civilized Tribes in Oklahoma. That decision, McGirt v Oklahoma, did not include any determination, beyond the parties present in that case, as to the effect of that ruling. Exactly how that decision might affect a host of prior cases, particularly involving jurisdiction of the state versus the tribes over native American persons living in those areas, has begun as a trickle but will, unless the Court acts to decide those issues, will flood the courts. In Bosse v. Oklahoma, a death row inmate convicted under state law for the murder of a mother and her two children, challenged the conviction. He argued that the state, having no jurisdiction over him since only federal authorities handle crimes on reservations, had no right to hold him under the prior conviction. The law for over a century has been that when a Native American commits a crime on reservation land, the authority to prosecute belongs to the federal government in federal district court, not to the state. The court placed Bosse's request for release on hold, and will likely hear full argument on the issues in this case next year. Only the three more liberal justices signed the order and they indicated that they would not have approved Oklahoma's request to stay the release order. Stay tuned for more of these types of cases and others on taxing authority, property taxes, and other issues where state and federal authority conflict. 

Look for a decision next week, or the next, on whether SCOTUS will take the Harvard admission discrimination case alleging that that school's admission policy discriminates against Asians. There is little doubt that it does, but the question is whether race-based discrimination in admissions remains a valid means of promoting past discrimination. Affirmative action has been under challenge for some time, and maybe the Court will toss AA in with abortion//reproductive rights precedent to overrule but not really (recall the Kavanaugh decision we discussed in the youth criminal sentencing case where his opinion was savaged by Sotomayor, and even by members on his side in the majority opinion for overruling the prior cases while denying that is what he was doing. Are we seeing a model for how Kavanaugh might author a Roe v Wade retreat? 

Stay tuned. 

I will comment on your comments later this week.

Kurt

Home Stretch for SCOTUS

 Class,

Well, since we last met, the Court has made more news by the cases it is considering to take for next term (or has already taken by granting cert) than in the opinions that the Court has issued.  So, let's start with that- and we must start with one case from Mississippi that the Court considered several times and finally determined that it would hear and decide. The Mississippi legislature drafted legislation that prohibited nearly all abortions at a point BEFORE viability. That point is significant because in most previous legislative attempts to restrict abortion, the states have tip-toed around the rules the Court issued in Roe and later in Casey, seeking to limit or make more complicated the practice of abortion on hospitals, doctors and women. This case is a direct challenge to Roe. If Mississippi can restrict abortion prior to the date that the fetus become viable outside the womb, (which gives the state a heightened right to regulate on behalf of that life) then it follows logically that the states could prevent abortion entirely. That was essentially status of the law pre-Roe.

Remember that throughout our history, the regulation of medicine, medical practice and prescription drugs has been a duty of the states. There are some federal overlays (health insurance has imposed many of those) thatlmay override state regulation but doctors and hospitals are licensed per state law. There is no requrement that each state adopt the same rules. 

Now, what will happen is anyone's guess. The Court probably has five members who would overrule Roe, all things considered, but that is not the end of the story. How they might do that, and how sweeping the ruling, is as significant as what they might do. Roberts is not irrelevant, and Kavanaugh is not the kingmaker, as much of the nattering nabobs of negativity (Thank you  Spriro Agnew) might have you think. And those calling for Breyer's early retirement might re-think replacing a Justice who has immense instititurional memory and is, among both the left and right leaning members of the Court, highly respected. He is likely to be the most influential members opposing a full on over ruling of Roe. 

The Court finds all kinds of ways to do sometning, or not do something, and explain to our general confusion that they are or are not doing what we think they are doing. Let's just keep our powder dry and trust that the Court can find a way through this morass created in 1973 with a decision that has grown stronger even as most commentators today would argue that Roe was poorly reasoned even if they approve of the outcome. 

Comments? Questions. I am going to post again in a day or two about some other cases that the Court has decided, so check back soon.

Kurt

Luntz Called Out

 https://www.salon.com/2021/05/21/former-employees-of-famed-gop-pollster-frank-luntz-say-his-work-is-a-scam/

I called this in class and I don’t even know the guy. 

Kurt 

A little earlier than planned, but there are things on my mind.

 The Supreme Court accepted for argument next term Dobbs v Jackson Women's Health Organization, the single abortion provider in the state of Mississippi. The lower courts have determined that the recently passed law which prohibits all abortions (with two exceptions) beyond the 15th week of pregnancy. The Court current ruling permits state involvement in the decision to terminate a pregnancy once the fetus is viable outside the womb as long as the state rules do not unduly burden the woman's right to terminate the pregnancy. (The undue language is really a balancing test between procreative rights and the rights of the state to protect unborn life. Viable has been a medico-legal term with some strong differences of opinion.)

The only thing that SCOTUS has told us is that there are 4 votes to take the case. We do not know which four, but likely, none of those votes came from Breyer, Sotomayor, or Kagan. Why would they take a case that could lead to a bad decision if their position was on the winning side in the lower courts? So, the real question is whether there were 4 or 5 votes to accept the case, and if only 4 votes, was the fourth vote from Roberts or Barrett? 

There is a lot of ground to cover from this decision to a reversal of Roe v Wade and Casey. What the Court might do and what reaction their decision might engender are truly open questions. This is how the Court works, and the Court likely will wade into this case as I would put it, "with two feet tripping lightly." 

There are Court members who would reverse Roe and others who would instill it in law much broader than its current reach. There may be others concerned about the reputation of a Court that would broadly strike down precedent. There are others who wish to limit the expansion of abortions but in a way that respects the immensity of a very private decision. Right now, what I can say is that one again the Court is at the center of the political decision central to American life, whether we like that or not. 

On a separate note, the Biden Administration is seeking to waive the intellectual property rules that protect the companies that have made the Covid vaccines so that, ostensibly, the rest of the world can make them using the technological medical discoveries that the companies found and implemented. 

Sen. Warren has indicated that it would be her preference to eliminate all such intellectual property protections, such as patents, much like the WHO prefers. Her idea is that the world should benefit from these discoveries, and that companies who make these discoveries should not profit from them. 

As a direct beneficiary from a drug used to treat a very rare form of leukemia (800 people affected world wide), I can assure you that had Senator Warren's idea been in effect 13 years ago, none of you would have heard a single idiotic thing I have ever said in any of my UCLA-X lectures. There would have been no drug, and cancer would have claimed another victim. Now maybe that is not the best example to use, as I can be an irritant to the intellect, but I would sure like to explain to the fine Senator from Massachusetts just how the market works and how necessary intellectual protections are to all innovation. 

An alternative suggestion I make, only half in jest , is that the funds that each Senator raises for their campaigns be divied up among  [insert any of your favorite charities, lost causes, devilish pleasures] and there be permitted no campaigning, instead substituting one debate per election, equal time, for 4 hours, to be held after an 8 hour shift doing the pharmaceutical research she seems so willing to give away. 

That enough for today. I will  be back to post on the first scheduled date but feel free to comment on any of this I have posted today. .

Kurt