It’s a dispiriting shame that the Fifth Circuit, in New Orleans, has become the best place for so-called “conservatives” to litigate cases which deprive Americans of their civil liberties.
In the 50s and 60s, it was the 5th Circuit which bravely protected civil rights, especially involving race. Now, it one of the most likely to deny civil rights to: women, employees, minorities, immigrants, those accused of crimes, etc.
We are in a new Dark Age, and the Trump federal bench appointments are going to drive us in deeper and darker. So sad.
208
In yet another attack on democracy, the Trump regime is attempting to deny plaintiffs their day in court.
It is time for people to wake. This government is attempting to force you to live by their religious standards. I was under the impression that each American was free to practice their beliefs regardless of what religion you practiced, or did not practice. Get out and vote.
The overreach will end with the bonespur cabal behind bars.
The coming elections will see the result of the constant fear and hate that has been ginned up: Americans have had enough. The only solution to those who ignore the law is to remove them, and the backlash will see the cancer that is republicanism will be out of our lives for generations.
Barr is behind this. Trump is too ignorant of the law to have devised the strategy, and the Solicitor General would only pursue this if Trump ... goaded by Barr ... asked him to.
Barr is not branded as an anti-abortionist or, indeed, as an opponent of the separation of powers. He deserves to be branded forever as both.
1
Time to play hardball, the way Republican's do: Second order of business for next Democratic Administration, after overturning every Trump executive order and every Trump deregulation: Impeach Kavanaugh. (perjury at confirmation hearings), impeach Gorsuch (fruit of the poisonous Garland tree), Impeach Thomas (conflicts of interest), Impeach Roberts (there's got to be something, after all, he was one of the Federalist/Heritage Foundation thugs sent to throw the election to Bush via intimidation), Impeach Alito (for the fun of it). Get rid of all of them. if Republicans complain Democrats should have two words for them: Merrick. Garland.
so much for judges who tell us they just "call balls and strikes"!
This comment makes no sense at all:
"This reader holds fast to the opinion that The Supreme Court itself, sans Merrick Garland, lacks standing to rule on anything..."
When Merrick Garland was nominated, the Senate (which controls confirmations) was controlled by Republicans, and the days had long since passed when a President's Supreme Court nomination was simply rubber-stamped. In other words, if a hearing and confirmation on Garland had occurred, his nomination would have been rejected.
Should the Senate have gone through the motions anyway? Arguably so, but that's all it would have been doing, "going through the motions." As it happened, it didn't. Either way, Merrick Garland was never going to be a Supreme Court Justice. I think he always knew this.
If, as the author states, the question of standing is too important to be left to the courts than it behooves the legislature to tighten up the standards.
Linda Greenhouse is a national treasure, but she omits to point out that the Trump maladministration is engaged not just in twisting the sometimes abstruse concept of standing beyond recognition, but in attacking the very idea of neutral legal principles. To those now in authority in Washington, the law is nothing more than a tool to reward friends and punish those defined as enemies. As law must be the basis of any organized society, this amounts to an assault on civilization itself.
3
Stacking the Supreme Court 6-3 or 7-2 in favor of very conservative justices is one of the more obvious reasons the GOP is desperate to see Trump reelected. (Due to health and age, Ginsberg and Breyer are unlikely to still be sitting on the court in 2025 due to age and health reasons.)
If this court stacking plan succeeds, which would be very likely if Trump is reelected, then the GOP will be able to stonewall any and every progressive law that a Dem-controlled future Congress might enact for 30+ years. Hence, the Dems will be able to enact nothing of consequence into law for a generation, no matter how many elections they win.
In short, Trump's reelection will put a de facto end to the relevance of Dems/Progressives at the Federal level for a very long time, regardless of election results.
1
@Thomas Hardy : any ONE of them could be stricken with the dreaded cancer; it happens every DAY, so they'd better not take being there forever for granted. And the BEST health care doesn't always work. Just sayin'...
thank you. this reminds me of following how germaneness worked in a state legislature. It turns out that it's all in the eye of the beholder, as far as I could tell. Just like with the courts and standing, a Legislature's Rules Committee finding that something is not germane is a first the sentence, then the verdict proceeding. So it's who has the votes, but just to be on the safe side, who has the votes not on the merits, but in the Rules Committee,or on the Court
The Supreme Court, and the Senate, are so out of touch with American values that some remedies are needed. Limit SC terms to 20-30 years, which might make the nomination process less vitriolic -- let Justices retire to a lower federal court if they want. Some impeachments of federal judges are probably necessary, given the quality of nominees is so similar to the quality of Trump cabinet choices. The Senate is a more difficult issue, but it is so unrepresentative of an increasingly urban and dynamic society.
Don't forget it was the mighty Scalia himself who started this slide by opposing environmentalists. In his view, which grew increasingly strident, only those directly regulated by government could sue. Those who were the putative beneficiaries of a program could not. After all, that was the government protecting them, and they should be whining about wanting more or gumming up the shiny loafers of the lobbyists who opposed those programs. His narrow views of who gets what and why lives on.
What the Trump administration is doing is just another manifestation of their fundamental belief that certain people should not be granted the same rights and considerations as others.
It's evil and dangerous and cruel but unfortunately not surprising.
This reader holds fast to the opinion that The Supreme Court itself, sans Merrick Garland, lacks standing to rule on anything, especially since it declared voters in West Virginia had no standing to haul their state into court for gerrymandering.
3
Linda's thoughtful and clear explanation reminds one of two questions a court, i.e. the judge, might ask:" Do I want to hear this case?" or "Do I have the legal authority to hear this case?"
Regardless of whether the judge might want to hear the case, the only valid question is whether the judge has the legal authority to hear it. If the plaintiff does not have standing, the judge has no legal authority to hear the complaint.
Any decent judge must put aside her/his wants, and start the analysis by determining standing, using the law (yes, sometimes statutes make standing clear) and precedent (even if understanding precedent takes some thinking; judges are paid to think, very carefully).
Otherwise, as the comments point out, judges breed contempt for the rule of law, do not inspire confidence, and erode an essential part of our Republic.
Attorneys who advocate for those who have no legal right to sue are part of the problem. Licensing boards and rules of professional conduct need to address the problem, but judges also need to call out attorneys.
Judges have always decided cases based on their own ideological bent and prejudices. Standing or other such mumbo-jumbo provides the cover for such decisions.
That is why the legal profession has such low esteem in the eyes of the ordinary people. That is why there is such effort to stack the courts. For example how can you convince ordinary citizens that Citizens United ruling is good for them and protects their democratic right?
2
My grandpa was a judge in Chicago during the 1930s when gangster Alphonse Capone ruled the city and owned the politicians. If a defendant paid off the politicians, their criminal case got kicked.
So there's nothing new about mobsters controlling the legal process by paying off politicians. What IS new is that Capone and his gangsters have moved from Chicago to Wash DC and aim to run America, gangster style.
29
The reason that doctors sue to have the right to perform abortions have standing to sue is because they are entitled to the high compensation they receive to perform those abortions. All they would have to do is acknowledge their actual motivation. the same is true of Planned Parenthood. If they had to divest their abortion services in states that refuse to spend Medicaid funds on providers who facilitate abortions, it would cut into the profitability of the abortion operations.
@ebmem - sure, the doctors make exhorbitant profits off of the low-income women who are too poor to travel out of state if the service is unavailable in their state.
And Planned Parenthood stopped accepting what would have been $60 million in federal funding last year under Title X when the religious right succeeded in forcing a gag rule into rules for the funds.
https://www.nytimes.com/2019/08/19/health/planned-parenthood-title-x.html
So Planned Parenthood turned down money in order to continue providing the same full set of services to low-income women.
Kind of not what your "actual motivation" argument tries to say.
10
President Trump promised he would appoint Supreme Court justices that would follow the constitution if elected president and he is delivering. This is why many people voted for him and will again in 2020. I only hope he is able to appoint more justices to the bench who are conservative and not follow down the progressive path we had with previous presidents.
4
It’s called litigation. I’m surprised a court reporter doesn’t know this.
1
@Michael Livingston’s …
Ms Greenhouse is all for the deciding of cases based on preferred outcomes, not on the law.
Notice how all of the outcomes she seems to favor all support the liberals view of what should happen irrespective of the underlying law.
And for the commenter that suggests that Ms.Greenhouse is a "brilliant lawyer", he needs to recognize that Ms Greenhouse's law degree came within the past three or for years...
She's far from "brilliant" on matters of law.
1
You can't have a fair trial where the referees are all rooting for the opposing side. They will decide whatever helps the red team and will refuse to hear any complaints of the blue team. The folks on the Supreme Court are not there because of merit.
Ms. Greenhouse is a jewel. I miss her previous regular columns. This article on standing is excellent and shows the value laden judgments of judges who purport to objectively apply this slippery doctrine.
1
The Trump administration has been trying to limit free speech for all those it does not agree with. This is an extension of that "policy." Through bullying, name-calling and other means, Trump and his minions constantly demean anyone who expresses an opinion that they do not hold. May precedent succeed and Trump fail.
3
I’m not sure what anyone thinks the 5 conservatives on the court are doing anything other than choosing the outcome preferred by their ideology. Four of them seem completely unconcerned with the appearance that that is what they are doing. Roberts alone seems to try and calculate what he get away with while claiming to be objective and loyal to the constitution. We are now reduced to hoping that Roberts cares enough about his reputation to vote the law instead of his ideology. Make no mistake, his record shows that he is with the other conservatives in his heart.
I read between the lines and believe LG believes this too, but is much too careful and journalistic to say it explicitly. Her recent columns though hint that several cases this year, if decided as she fears, will push her over the edge into denouncing the conservatives outright. These standing cases are clearly among them.
2
Let's be clear. There is an obvious correlation between all of these cases. The GOP wants to ensure women, people of color and members of the LGBTQ are relegated to a distinct second class of citizens here in the US. They will stop at nothing to achieve this overarching goal.
2
The modern Supreme Court reads things into the Constitution that are not there. Roe v. Wade found a right to an abortion, which rested on the right to privacy, which was one of a penumbra of rights implied, but not stated, in the Constitution. That sort of logic gives a court the power to do anything.
If the federal courts simply decided cases and controversies like other country's courts they would not be political. (Or at least, not as blatantly so.) No one in Japan knows or cares who is on their Supreme Court. Japanese courts stay out of politics, while still making sure the Japanese Constitution is observed.
In America many people vote for president based on who the candidate will appoint to the Supreme Court. How bizarre is that? They "vote" for Supreme Court justices instead of a president! So we get things like the Brett Kavanaugh hearings -- a circus, with Christine Ford and Deborah Ramirez playing the part of the clowns.
Nowhere else in the world would this kind of thing happen. Our courts have become political. They should be judicial. And people like Linda Greenhouse seem to think that the problem is not that the courts are political, but that they are not always politically liberal.
4
Linda Greenhouse is a brilliant lawyer but she is more, she explains in terms non-lawyers can easily understand not only arcane legal reasoning but also the practical effects of the implicated law. Kudos!
2
Arcane to most of us, to be sure, but standing is critical in our legal system, and politicizing it is one more example of the erosion of American citizens' rights under the Constitution and the Common Law. Those two together form the underlying base of all of what we have come to view as our "Rights".
Perhaps Joni Mitchell said it best, "Don't it always seem to go, that you don't know what you've lost 'till it's gone."
1
TRA, the problem with standing is not that it is "arcane" -- mysterious and understood by few. The problem with standing is that it is "abstract" -- an idea that has little connection with the real world.
Why is standing being an abstraction a problem? Because judges can pound the malleable principle into shape to get the result they want. Liberal judges will say that a plaintiff has standing if they want to decide the case in its favor. Conservative judges will say a plaintiff has no standing if they want to decide against it.
Liberals and conservatives both abuse as much as use the principle of standing. Both are hypocritical in its application. Linda Greenhouse saying the president's lawyers have weaponized the principle of standing is the pot calling the kettle black.
And her pot is blacker than the president's lawyers' kettle. Liberals have abused standing more than conservatives. It's not even close.
1
@TRA, it seems to me that the question of the standing of a plaintiff is crucial because judicial denial of a plaintiff's standing can deprive the plaintiff of recourse to the law, a fundamental constitutional right. But this article discusses some cases in which the plaintiffs' motives for bringing the suit are clearly political, plaintiffs who ought to be seeking recourse to political processes rather than to the courts.
Voting, exercising freedom of speech and of the press, and political activism of various kinds are appropriate to a question such as whether individuals should be required, under threat of penalty or not, to purchase health insurance. Having failed to secure their favored policies through politics, conservatives turn to the courts, where they hope to find like-minded judges, too often chosen, in turn, by political organizations.
I can remember conservatives complaining, not so long ago, about activist liberal judges trying to legislate from the bench. That pendulum has certainly swung to the far right. Add to that situation the refusal of the US Senate to deal with bills passed by the House (deadlock in the legislature), and the situation is not likely to change without sweeping changes of personnel in the legislative branch and congressional correction of the Citizens United decision.
1
@Mary C.
Wow. What an excellent comment.I couldn't agree more with your observations, especially re the activist judges rant spawned by the historic Warren Court. McConnell's packing of the federal judiciary- rightly from his point of view- being the seminal achievement is IMO, the most long-lasting legacy of this period of chaos that the right capitalized on in order to make a subtle, but highly effective, power move to put in place an obstructionist judiciary to social progress.
One of the hip, i.e., current, words to be used refers to a "woke" frame of mind (aware would have sufficed), to refer to things commonly accepted in our culture, even if only recently, like, for example, an acceptance of gays as equals. Even though I am rather optimistic about the November elections generally, it will take at least the control of all of congress as well as the presidency, which means to me a "woke" realization that supporters of Trumpism are as guilty as The Donald himself in perpetrating this assault on common decency that we live with now. I don't care that these cowards, many of them, are only doing this for expediency, that only makes them more despicable.
I'm 71 now, which is to say that I've seen my share of history. The November 2018 elections were the most important of my lifetime. But it will be surpassed in importance this November. It is said that people (societies, really),get the government they deserve. I hope and pray that I will have reason to smile Nov. 4th.
"Standing" in abortion cases has been manipulated ever since Roe v. Wade, when the whole case should have been dismissed for lack of standing except that Harry Blackmun wanted to move it and so invented a novel doctrine. Any place else, a doctor challenging state regulations for patient safety would be presumed to be in conflict of interest as a "representative" of the patients in that lawsuit, but in abortion jurisprudence (the Uber-Recht overturns all normal provisions) abortionists who make huge profits from their trade are suddenly the nonpartisan "representatives" of women. Read Louisiana's brief: it shreds that malarkey in the most risible terms.
4
Funny how one can always criticize the Supreme Court based on your political beliefs. The courts in this country have become almost as political as the legislatures and executives. It's a shame. And a disgrace.
Both parties share the blame. But liberals tend to expand the power of the courts while conservatives tend to limit it. The Roe v. Wade decision is literally a textbook case of judicial lawmaking. Conservatives lean toward deference to lawmakers.
Even the president has little power compared to the federal courts. Talk about an aristocracy. They dress in robes and sit on thrones. They insist on being addressed as "Your Honor" and you must beg their permission to approach them. They are appointed for life. Their very word is law.
You think Donald Trump has power? Any federal judge can overturn any thing he does. And they do. All the time.
The worst thing is that the judges were never given this power. They just took it. And there's no getting it back.
3
Another question that Ms. Greenhouse should consider: when SCOTUS rules against the Trump administration, what will happpen when the Trump administration refuses to comply with the ruling? If you think that won't happen, you're sadly disillusioned.
Muleman, of course the Trump administration will comply with the ruling.
The concept of an apolitical Supreme Court is ludicrous. Roberts tried to tell us there are no Dem or Repub judges, just judges. Gorsuch tried the same tack a few months ago saying he had not been subject to a litmus test of his ideology.
These people are either fools or liars.
Roberts had tried for decades, since his time in the Reagan Administration, to gut the Voting Rights Act . He did the deed as soon as he became an SC justice - pure politics.
And no one had to give Gorsuch a litmus test because he had reliably followed his indoctrination by the Federalist Society to follow all their ultra right wing dogma in all his decisions. Indeed, even now he unethically goes to the Federalist Society functions in order to indoctrinate other would-be judges in the ways of ultra right wing fanaticism. People claim he is a smart guy, but he seems to be clueless that he was chosen specifically because of his full indoctrination into the cult of the ultra right wing and is seen as a very reliable ultra right winger - something he has proven in his short time on the court. He is a pure political animal - gleefully taking a stolen seat as his own. He is, in fact, unethical to his core.
2
Because judges are individual actors, there is no legal doctrine that cannot be perverted to fit the desired outcome of a case or even all subsequent cases. As Ms. Greenhouse shows so clearly, standing is such a doctrine, especially because its three criteria are general enough to allow for a wide range of rationales. Yet for centuries American courts, with notorious exceptions like Dred Scott and Bush v. Gore, have largely ignored or resisted litigants’ efforts to act as partisan tools.
What stands between the rule of law as an essential part of democratic self-government and the corrupt political use of judicial power is a court’s ability to show the public that its decisions follow from a reasonable reading of the law and the Constitution; that they are grounded in long-standing precedent; and that litigants in similar circumstances can expect similar outcomes (equal justice).
When the Supreme Court overturns precedent, it will appear arbitrary or political unless the decision, like Brown v. Board of Education, can be seen to necessarily follow from the Constitution and principles embodied in the social contract that led to that founding document which remain widely accepted to this day. Because the Roberts Court has issued a number of majority opinions overturning precedent that serve political interests and lack convincing basis in enduring foundational principles, it has greatly eroded confidence in the judiciary to be the protector of constitutional government.
4
I have always wondered; If the ACA is struck down as being unconstitutional, (which I don't believe it will be,) how will those plaintiffs, who are probably on the receiving end of ACA benefits, pay for those benefits? Might a hazard: Government!
1
The dissenting judge, Carolyn Dineen King, objected, arguing that in the absence of any penalty for violating the mandate, “the individual plaintiffs will be no worse off by any conceivable measure if they choose not to purchase health insurance.”
In other words, it's fine to break the law if you know you're not going to get punished.
Wow.
2
Trump has managed to pack the Supreme court (and many federal judgeships) with the most corrupt insane right-wing crazies imaginable. It is the fault of Fox propaganda and his GOP followers. It is truly frightening.
8
Again, surprised?
Why did she need to win? This is why she really, really needed to win! Eventually, we’ll flush Trump but the smell of a radically partisan judiciary won’t go away...
1
"Who Will Be Left Standing in the Supreme Court?"
I am wondering "Who Left Will Be Left Standing in the Supreme Court?"
"Remarkably, the brief fails to cite Singleton v. Wulff, the 1976 decision recognizing doctors’ third-party standing."
Not remarkable at all. The last thing an ultra right wing lawyer wants to do is point out a case that makes his argument moot. Just par for the course for these corrupt lawyers. Of course their corruption is easily exposed by any first year student.
2
The overarching theme of the party in power is, ‘by whatever means possible.’ While the White House and Senate majority plows through rules and precedent on a daily basis, they then exploit precedent and formality in the courts to their advantage. While the public face of the Trump coalition looks like a gang of fumbling fools there’s a machinery in the background changing the heart of the country in ways that will be felt for generations. The genius of it is admirable but the effect is anything but.
2
I recall more than a few of Ms. Greenhouse’s “analyses”, barely concealed editorials, where she has questioned the court had jurisdiction or whether the plaintiff can truly have been harmed in cases she felt had no merit. Now she complains when someone uses the same tactic in cases she wants to move forward. If her complaint is about the tactic, her attitude is hypocritical.
2
All anyone needs to know is that the Federalist Society made the people they indoctrinate -all those put up for Federal judgeship, sign a promise to always follow the Federalist Society ultra right wing dogma when deciding cases. When this came to light the utter corruption of the Federalist Society and the Republican party, which will only nominate Federalist Society indoctrinated people for judgeship's was in put out in plain sight for all to see. This is really how un-American the Republicans are now.
1
The two anti-ACA plaintiffs claim they are harmed by being forced to buy insurance. But if they choose not to insure themselves, then all of us will eventually be harmed by the cost of providing them with medical care, which is all but inevitable and for which they very likely will be unable to pay. They might also have to resort to bankruptcy, which harms all their creditors.
If a harm results from either course, surely the courts should favor the option causing the lesser harm, which just happens to be the course of personal responsibility. Don't Republicans claim a devotion to personal responsibility?
1
Some Republicans consciously choose politics over the Law,
some don't know the difference between politics and the Law,
some use politics as a way to avoid following the Law.
All Republicans wind up letting their politics overrule the Law.
The challenge of the next decade is to remove Republicans from positions of authority.
5
When courts, whose members have been appointed by presidents and governors and who were elected by a minority of voters, winning elections by virtue of an unrepresentative electoral college or gerrymandered districts, then engage in what the late Justice Scalia referred to a legal "jiggery pokery" to pervert justice, the "standing" of the judicial system in the country is undermined. We now have a Supreme Court, five of whose nine justices, were nominated by Republican presidents who received fewer popular votes than their Democratic opponents, and were confirmed by Senate majorities also achieved by a minority of popular votes; so too in the appellate and circuits courts. And this disparity doesn't even reflect the unlawful blocking of many Obama nominations, including Merrick Garland, by Senator McConnell, leading a bare Senate majority, elected by millions fewer voters across the country. This kind of partisan political warfare is rending the country more than at any time since the Civil War. McConnell will take his place in history alongside Justices Taney and McReynolds, Senators Breckinridge and McCarthy, Newt Speaker Gingrich, and others whose have perverted our government and laws over the long history of our republic, (if we can keep it).
4
@Robert Levine: As far as I'm concerned, Gingrich's "Contract On America" is still working.
SC is another political group and we Americans have no confidence it is designed to actually be fair and use the law as its guide. The Politicians know this and all plans are to get things to the SC so they can rubber stamp the "law' they want.
You do a case in a state, lose, appeal, then lose and appeal then get to the SC and win. Its the new justice system.
7
I have been unable to find a case in Clarence Thomas’s 28 years on the bench where he didn’t:
- rule for the white over the minority
- rule for the man over the woman
- rule for the corporation over the individual
- rule for the Republican over the non-stated party or Democrat
- rule for the non-stated party over the Democrat
Now that’s a judicial record you can set your watch by!
168
@Steve This is not an attempt to contradict your point, but it should be remembered that Justice Thomas was pivotal in 2002 as the Supreme Court upheld the Virginia law making cross burning a crime. There was some question about whether the law might be struck down on First Amendment grounds, until Thomas unexpectedly declared during arguments that cross burning could only be seen as a historic tactic of terror and intimidation directed at the black community. This removed cross burning from potentially being considered protected speech, in a very rare case where Justice Thomas was in full-throated agreement with his liberal colleagues.
30
Thankfully he makes his decisions on the rule of law versus identity politics.
9
Steve, you haven't looked very hard. None of the justices on the Supreme Court, left or right, are rigid ideologues. Their votes on some of the hot-button issues are pretty predictable. But it may surprise you to find that Clarence Thomas, like his brethren and sisters on the Supreme Court, has been wiser than you think.
6
I sometimes feel that these editorials are “preaching to the choir.” NYTimes readers, more well off and better educated than the typical American, likely significantly, grasp the importance of the Court, and why the 2016 election was so critical.
Merrick Garland and another sensible justice v. Gorsuch and Kavanaugh for life.
Sadly, those who were and will continue to be most affected by these calamitous Supreme Court decisions did not vote. Remember, only 50 percent of eligible voters cast a ballot in presidential elections.
Readers, rather than commenting about their frustrations here, but be better helping this country drive turn out.
115
You can do both and good comments can motivate.
17
@Eagles Fan
Those eligible voters couldn't get time off work, or get a ride to the polling place, or were denied the right to vote because of legal obstacles put in the way. The level of voter obstruction has reached a historic high where almost half of voters are prevented or discouraged from attempting to vote. Voting drives will not make these obstacles go away and they will not prevent the misinformation campaigns targeted by computer to trick voters in many ways. Everyone in this country already knows who they will vote for in 2020 and how they will overcome the obstacles if possible. The people are already motivated and ready, it is the system that is designed to produce a minority vote winner that is the problem.
13
You are equating being well off and well educated with having good judgment. There is no relationship between these. If there were such a relationship we would never have heard of Monica Lewinsky. Wisdom has nothing to do with being well off and/or education.
7
When seeking the possible motivations of Mr. Hurley and Mr. Nance for making a legal case that they will be harmed by the Affordable Care Act and its individual mandate, even though it no longer carries any non-compliance penalty, I was unsurprised to find that both men are strongly supported by libertarian institutions like the Cato Institute, and that the unmarried and childless Mr. Hurley believes that a plan like the ACA which makes it mandatory for health insurers to provide older and sicker Americans with coverage as well as the young and healthy, means that he must pay more for his own coverage than he should.
How sad to see individual citizens like Mr. Nantz and Mr. Hurley lending themselves to a legal challenge to the ACA which, although imperfect has brought healthcare to millions of their previously uninsured fellow citizens.
147
@Susan
The wealthy have always used divide and conquer to control the rest of us.
I expect to both men get something emotional and social and possibly financial from their dealings with the mentioned f=groups.
6
@Susan
Obamacare brought free insurance to 10 million able bodied childless adults and defunded SCHIP which was covering children, without providing for those children who had been previously covered. [Sick and injured adults were already covered by Medicaid.]
Obamacare brought Obamacare policies to 10 million individuals. The policies were so expensive that 80% of the participants required federal subsidies to cover their premiums and many, after paying the subsidized premiums, still did not have access to care until after they paid their $1500 to $12000 deductibles.
There is a difference between providing access to "affordable" insurance premiums and providing access to health care. Democrats structured their scheme to make sure hospitals would get paid their inflated costs, rather than increasing access to health care for Americans.
It is rational to want Obamacare repealed, which was always nothing more than a gift to big medicine. It is not equivalent to wanting to reduce access to health care.
But as Gruber said to the laughter of his academic buddies, there is no limit to what you can sell to Democrat voters.
1
@ebmem
Democrats gave in to Republican demands in the hope of getting some Republican votes, and then those Republicans betrayed them by unanimously voting against the ACA. And I'm sure you know that.
6
I do not understand how this objection to the requirement to buy insurance is still an argument. It is literally no different than requiring a driver to have auto insurance.
6
Well...yes, it is different. You can choose not to drive and therefore don’t need to purchase car insurance. However you do not have that choice with Obamacare.
2
The more partisan the court, the more willing it is to stretch judicial doctrine in order to reach a desired verdict. To grant the plaintiffs standing in the latest Obamacare case will require the Supreme Court to stretch the doctrine past the breaking point. And if the high court affirms, as the Trump administration hopes it will, that Obamacare violates the Constitution, the damage to the court's reputation will be irreparable. It will also mark a fatal blow to the rule of law in the United States, because everyone will know that the Supreme Court is no less partisan, no less unprincipled, than the political branches controlled by the GOP in the era of Donald Trump.
180
@Stephen N
Bush v. Gore prooved to me that the Supreme Court is a political animal using doctrinal rather than legal prescriptions to reach decisions. I have not expected a disinterested decision from them since.
46
@Stephen N The Court has no reputation to protect after Bush v. gore and Citizens United. We know very well that the so-clled 'conservatives" are political warriors and part of the cult of authoritarians now in power
41
@Stephen N - we have seen the political nature of the Supreme Court since Bush v. Gore. I expect the worst from them.
32
The federalist society judges have come up with all of this legal mumbo jumbo -- "originalism" "textualism" "strict construction" and "standing." All of this is something to provide cover when the justices decide cases. The justices decide cases based on their political ideologies and biases; then they use the "legal mumbo jumbo" to dress it up and make it sound as if their decision was based on "deeply held legal principles."
256
@Aubrey
With a court packed enough we will have an inevitable conflict between legislation from Congress and legislation from the court. Congress will have the people on its side as well as access to funds and manpower that can be brought to bear to enforce its will. The court will have a minority on its side and a few red state legislatures with their own law enforcement. Eventually differences in state law that are this profound (what is legal in one state is murder in another) will cause conflict between armed men. At that point the issue will slip out of the grasp of the court and into the crucible of history and we will see how far a partisan court can really go.
7
@Aubrey
No sign of common sense, I see. I guess nobody can make money on that.
1
@Bobotheclown
This sounds like an NRA heroic fantasy, or fear.
It takes a lot for people to start killing their neighbors. Americans don’t hate each other as much as you think. What happened when o the Ammon Bundy “uprising?”
1
Stacking the federal courts with right wing ideologues has outcomes like described in this article.
Continuing this stacking is why the GOP Senators are sticking up for DJT.
11
Though I usually find your columns exceptionally well written
I found this one to rather unclear, Ms. Greenhouse.
2
Sorry folks but the "Supreme" Court has been bought already by Mitch and the boys. Kavanaugh was the latest entry to manipulate
so-called US justice. For "life" for heaven sake. What a horrible error.
It is up there with the 17th century concept of an Electoral College. Will it ever be rethought? Unlikely!
On abortion: Easy to define. A woman's right. Between her and her doctor.(i.e. no men, no Pope etc) First trimester proven by ultrasound. There are places in the world where this is possible
without strident religiosity.
9
Like the other branches of government, our court system has to assume some degree of good faith by all parties in order to function. Yes legal opponents may have sharply diverging views and will argue vigorously for them, but an underlying principle of basic fairness in access to the courts and their rulings has to apply.
Similar to their behavior in our elections, Republicans are out to erase this principle. Just as their electoral strategy now hinges on voter suppression and extreme gerrymandering, their legal strategies are wandering farther and farther from the Constitution and the law. Rather, the idea is to appoint as many judges as possible with extremely conservative views, and then try to give them any excuse to rule in certain directions regardless of the intents or merits of our laws.
McConnell’s theft of the Supreme Court seat now occupied by Gorsuch was a watershed moment. That act of preventing Democrats from fairly participating in the judicial branch deeply tarnished the reputation of the Court and our faith in its decisions, which are now correctly viewed as simply partisan. That faith won’t be easily or quickly restored, and never can be while the representatives of an anti-democratic GOP rewrite our Consitution on a 5-4 vote.
11
David, "theft of the Supreme Court seat"? Barack Obama nominated Merrick Garland to the Supreme Court in March of 2016. The presidential election was less than 8 months away, and hearings would take most of that time.
Letting the voters decide whether the Supreme Court seat would be filled by a Democrat (which looked likely) or a Republican (which few imagined) was hardly theft. It made sense to many, up until Hillary Clinton lost.
And it's not the conservatives who have rewritten our Constitution. You can thank the liberals for that, Roe v. Wade being the prime example.
3
I am not a lawyer, or a legal scholar. But as a citizen who cares about our democracy, I always read your column, Ms. Greenhouse, because I always learn something. Thank you. This op ed helps confirm the wickedness of the current administration and the efforts of court conservatives to curtail our civil rights. That makes me sadder than before because I feel helpless to stop them. But at least I now better understand the devious ways they are defeating me and others who love our country and are patriotic believers in the Constitution and the Bill of Rights.
9
Standing, as the author knows, is a threshold issue in all litigation so given a colorable argument that a plaintiff lacks such status one would be remiss not to raise the issue. This is no more weaponizing of a doctrine than occurs routinely in every manner of such disputes.
6
This article assumes that there is still some legitimacy to the Federal Court system, especially to the Supreme Court itself, that can be further undermined by upcoming decisions of standing. That's a flawed assumption. Bush v. Gore alone was sufficient to destroy any residual legitimacy the institution may have had and subsequent decisions such as Citizens United, Hobby Lobby, and partisan gerrymandering have only confirmed that truth. We now live in a "might makes right" nation, under the rule of might instead of law. Mitch McConnell and his fellow Republican leadership regularly says, "so what if it's against the law, I'm doing it anyway because I can, stop me if you can, I'm betting you can't." The Roberts court will confirm that the same is true for the Judiciary.
26
@Jack
You're absolutely right.
If the doctor, as a representative of abortion clinics/patients, does not have third party "standing", then I would argue that lawyers, representing the federal government, do not have standing to argue their case. I know their are legal beagles that will correct me, but it seems like a sound arguement.
11
So it’s ok to mandate that impregnated women (and their partners) bear and raise children but not that citizens buy health insurance? What a country.
39
@Steve Cohen Steven, not what a country, but what an administration!
And there goes law and precedent flying out the window, just like reality and facts in our tainted post-truth world. That Noah Francisco is still a licensed attorney after raising standing and omitting the case on point is chilling. The law is the last bastion of goodness and truth in this Trump/Republican era, but it, too, is crumbling.
8
@Sherry Some of us were aware that Chief "Justice" Roberts was lying during his confirmation hearing when he promised to honor precedent. No events since then have changed that fact.
13
What we are seeing is the break down of law and order which will lead to the demise of our democracy. This has been an ongoing battle by Republicans, specifically the Conservative right wing that now leads the party to keep women and minorities in their place since the civil rights movement began in the 70's. With Trump as their poster boy they have stacked the government, courts and the Justice Dept with partisan players while not only close minded often unqualified.
Look no further than the charade of an impeachment trial led by McConnell where phones calls, texts, and testimony have all been dismissed as lies. When the President can say to the nation "I can do anything I want" and the Senate lets him do it the Rubicon has been crossed.
I can only hope I am wrong and that the Senate will do their duty and remove this unqualified inept and corrupt President from power. If I am not, than I hope to see civil protests and strikes that would make us all proud to be Americans again
25
@M Vitelli - It's inapt to call Trump inept. He did scheme to win the office for some time, whether he believed he would or could is moot now, he's there. All his judicial appointees are there, now and will remain even if he is removed, in large part due to the Senate.
1
What hasn't the White House "weaponized"? This is a 100% corrupt administration. More and more evidence is coming to light.
17
The only thing with standing anymore is money.
19
Typical TRUMP tactics. Use both sides of the argument to make your case. The ACA plaintiffs where harmed because they felt they had to spend money because they are law-abiding individuals. LOL. Then they say: No need to rush a decision because there will be no harm to anyone.
It's important to note that TRUMP and REPUBLICANS do not want this case settled before the 2020 election because then they will be blamed for killing Obamacare causing millions of people to loose their health insurance. Unconscionable, deplorable, dishonest and just plain mean-spirited. VOTE ALL REPUBLICANS OUT OF OFFICE. Peace.
16
@Tom Walker: The average Trump supporter or Republican hates "Obama Care" but loves the "Affordable Care Act." Just don't tell them that the two names are for the same health care program.
5
"....Neill Hurley and John Nantz, the two men who object to being told to buy health insurance."
So sorry guys. Now, if you can sign an affidavit promising that you will never, ever, never, ever no how suffer a medical problem that costs more than your personal wealth will pay for, you're fine. You're on your own. If you can't, that mean when, not if, when you incur medical expenses well beyond your means, I and others will be footing the bill for you. We'll - all the rest of us - will be paying increased premiums and increased prices and fees for medical equipment procedures etc. because you thought it was fair for you two to be freeloading parasites.
15
BANANA REPUBLIC ALERT!!!! This sounds like what a 3rd-rate, semi-illegal 3rd world dictatorship would do when things don't go exactly the way it wants: interfere with the country's judicial system in order to get its way. This is a complete travesty, and one of MANY examples of the Trump regime trying to destroy the independence and effectiveness of the country's justice system. Appointing hundreds of highly partisan justices is their main long-term strategy, but in the meantime they are doing whatever they can to illegally or semi-legally exert their will over all aspects of the federal government, including those which are supposed to be independent - like the Fed, independent regulatory bodies, and most importantly the judicial system of the nation. If these thugs get re-elected in November, the damage they have so vigorously begun, will be consolidated to an extent that it would take generations to fully undo. PLEASE, dear readers of the NyTimes, DO NOT LET THIS HAPPEN!! If you are not involved in the political system now, please do so - get out the vote efforts, campaign assistants and the like: they NEED your help in this most pivotal election since the Civil War. Just do it - your children and grandchildren will benefit more than you might imagine.
10
Only extreme, white, male Christian ideology has power now. As this article points out, the law itself has no standing. Our democracy is careening off into the dark ditch of fascism.
14
Addendum to my comment: Clarence Thomas deserves special mention as a Supreme Court justice who brings his conservative Christian beliefs to work.
4
The United States Supreme Court lost all respectability when it voted along party lines to install W. Bush as president because of voting irregularities in Florida
The subsequent 03 invasion of Iraq sealed the deal.
The Republicans are running a fascist dictatorship at this point. The Court is worthless.
When McConnell illegally blocked the hearings for the Garland nomination the county should have stood up and rose against this.
The Republican Party is out of control and using the Court to send us to the gutter
15
Although Greenhouse doesn't mention it, AG Barr has told the SCOTUS no need to rush a decision on the ACA as that can wait until after the election. And that pure hogwash. Barr wants to spare little Donnie Trump any guilt over taking away healthcare from over 10 million Americans---so don't do that until after the election. So pleased that Trump's unknown acquaintance Lev has now indicted not only Trump and Pence but Barr as well.
11
In my own personal experience, a hyperindulged judge in Massachusetts blew off my motion to dismiss a lawsuit brought by an extortionist on the grounds the court lacked jurisdiction and the plaintiff had been obliged by the contract to go to arbitration, not the courts. She blew that off without explanation and diddled with this case for nine years before retiring and sending the case to another court, because her court lacked jurisdiction.
There is no supervision of these people, and everyone is scared to death of them.
4
This is nothing more than crime boss, bully, right-wing tactic of when you can't fight the cause on merit than you attack the people. Trump, like his father, has practiced this for a lifetime.
You get rid of the people, but whatever means.
6
Virtually nothing about the Trump administration is a pretty picture.
Trump and his enabling Republican Congressmen are a cancer on the soul of America.
Be active in the voting process and definitely vote Democratic in the 2020 elections as though your life, your children’s lives, and your grandchildren‘s lives depend upon it......because they do!
10
Yet again Ms Greenhouse shows us what great journalism looks like.
6
Clarence Thomas... relentlessly inflicting his early childhood traumas on the rest of America. He's got to be one of the most rigid thinkers amongst legal intellectuals.
3
@Barbara
You give Clarence Thomas far too much credit. He is not a thinker at all; he is a chair-filler.
Oddly dry??? Naw. You go girl. It's Thursday in January and no law students are yet studying for their finals. Someone will read this
2
God help us!
2
Nobody is even allowed standing to challenge the most blatant defiance of law specifically applicable to lawmakers in this otherwise badly flawed scheme of liberty to enslave: "Congress shall make no law respecting an establishment of religion".
There is no constitutional basis to force women to bear children on the grounds that God implants the human soul via the sperm that fertilizes her egg.
9
Everyone is aware that Clarence Thomas is a partisan of little mind. He is unworthy of the robes he wears. He is an insult to affirmative action.
10
The real issue here is the partisan nature of the court that twists and contorts to serve it conservative masters. Justice be damned.
8
It is no puzzle that the basic premise of standing comes into dispute after the decades-long avalanche of questionable suits raised by those whose either pocketbook or ego has been pricked by the consequences of living in a society where we struggle to balance law and common sense.
Charles Dickens offered the most insightful commentary on 'standing' from a legal context and perspective via one of his characters.
'If the law supposes that' said Mr. Bumble, squeezing his hat emphatically in both hands.The law is an ass---a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law, is that his eye may be opened by experience---by experience.' from 'Oliver Twist'
See 'Marbury v. Madison; Dred Scott v. Sandford; Plessy v. Ferguson; Shelby County v. Holder; Citizens United v. FEC; Burwell v. Hobby Lobby.
3
As long as the justices do not accommodate the administration and wait until after the election to rule.
Delay serves Trump. He continues to claim he supports coverage of pre-existing conditions even as his Justice Department undermines Obamacare.
8
@Occupy Government
He will "say" anything that he thinks will help him. Truth is not even part of the calculation.
3
To function properly the Supreme court must do more than give the appearance of impartiality, it must defend the general constitutional principles that have been recognized by the court in the past. Legal issues therefore should revolve around the specific issues of a case and not whether the law should be changed to suit the partisan whims of the day.
But we all know where the court is going on these issues, it has a political goal in mind, and that is to impose by judicial fiat what the Republicans have not been able to impose through democratic legislation. But the court is not a Congress and nine judges are not a government even when they decide to act like one. History shows us the consequences when this clear fact of separation of powers is violated. The Dred Scot decision of 1858 in which the Court effectively took the issue of slavery out of the control of Congress by granting the legality of slavery in states which had abolished slavery through their own legislative process. This effectively gave American citizens no more ability to address the question politically because it was now a settled constitutional issue. With no more ability to decide the issue through Congress the country had no choice but to go to war. We are again nearing the point where the ballot box is being negated by an unelected few and the last alternative of bullets is raising its head. Lets hope the justices have read a history book.
9
Nothing new here.
President Trump and the Republican Party decided a long time ago that the 65,853,514 people who voted for Hillary in 2016 are undeserving of standing or a voice or even a how-do-you-do in all matters, big, small and in-between.
8
Not to be a cynic, but from what I can tell, the purposes of the newly and unlawfully constituted Supreme Court are four-fold: 1. to support the extremely wealthy; 2. to support large corporations; 3. to support extremist so-called "Christians"; and 4. to support extremist right-wing Republican ideology and ideologues.
12
The Trump attorneys have not invented the inappropriate elimination of standing. The Supreme Court has been throwing plaintiffs out of court for decades now, using every possible excuse they can find. Employees are almost entirely shorn of standing because of the Arbitration Act or the nearly universal enforcement of contracts of adherence. Private antitrust lawsuits have been reduced to a small fraction of what they were due to standing obstructions. And so on. In America today, the message is that if you're a victim of injustice, don't look to the federal courts for help.
11
As many have pointed out in the past, the market is not the economy. It’s true Trump seems to be getting credit for the economy, mostly by people without a clue on how little he’s had to do with any positive aspects of it.
4
On the ACA standing case:
Delaware proudly has no sales tax which helps the malls along I-95 ant Rt 202. (They do have a Gross Receipts Tax which is much more consumer friendly and is less than 1% of the price.) The fact that Delaware does not have a sales tax does not make such a tax unconstitutional in DE or anywhere else.
All taxes are discretionary on the part of the government imposing them. A few, such as a Poll Tax may be specifically banned, while the Income Tax is specifically allowed. But no state nor Congress is Required to impose an income tax. The federal government is not Required to impose tariffs. A person who does not own a car is not Required to have car insurance.
Would SCOTUS rule that since folks in DE do not pay sales taxes while many others do that sales taxes are unconstitutional everywhere? To quote my sainted mother, "Horsefeathers!"
7
The "mandate" to have health insurance is still important -- because other than readers of this column, most people probably think it still applies. The big problem is that a majority of the Supreme Court will likely agree that there's no constitutional basis for the rest of the law's mandates. There's an easy way to fix this (but Republicans won't). That would be to change the mandates to incentives: If you buy health insurance with specified coverage, you'll qualify for federal subsidies.
4
It strikes me that in spite of the nuances of legalese, one needs to be a millionaire or have the support of millionaires in order to pursue one of these lawsuits.
How does that provide legal rights to the rest of us? We can't afford all the legal wrangling and, in fact, anyone who ends up in court has already lost because of the cost of affording a competent, dedicated expert attorney.
If you look closely, that is much of the story of Donald Trump's career. It isn't a question of obeying the law, it is a question of launching appeals in such a way as to make plaintiffs against him run out of money.
14
For an administration that has successfully convinced gullible voters that it is for the working man, the Trump administration has a funny way of showing it. On the heels of the age discrimination case and now these questions about standing--it's so obvious that the guys in charge--emphasis on guys--don't really care about individual rights.
17
Citing Harry Blackmun in this article to vindicate abortion rights is pretty shaky ground. Even (especially?) strong supporters of abortion rights generally wish that Roe had been drafted by some other justice and along some other line of reasoning and law. His work on the topic was almost totally untethered from Constitutional or statutory history.
@Rex Nemorensis
It is false to say that abortion rights were untethered from Constitutional history. It was based on the right to privacy of families and in particular the right to use contraception. At that time it was the most relevant and widely recognized precedent on which to base the decision.
Unless you are saying that the contraception decision was also wrongly decided, which wouldn't be surprising, because the rightwing extremists are making inroads on that right, too, in their opposition to contraceptive methods like the morning after pill, and the IUD which prevents the implantation of a fertilized egg.
14
@Rex Nemorensis, I'm wondering why doctors wouldn't have standing in the particular case discussed. Surely they are affected by a law that requires them to have admitting privileges at a hospital?
9
@Sherry Blackmun relied basically on the similarly sketchy Griswold case (yes, the contraception case was also wrongly decided) and a personal field trip to do medical reading at.the Mayo Clinic library - he ultimately did the abortion rights support group not nearly the favor he meant to do. Shoddy work in a cause that I mostly support is still shoddy work. There is no constitutional "right to privacy of families...to use contraception" and it doesn't take a scholar to see that in the plain text of the Constitution. Keep in mind that you are, I think, referring to me as a "rightwing extremist." I think that at least 90% of abortions ought to be lawful and I vote for Democrats over 90% of the time over the last 25 years. You may benefit from wider experience of people in America if you hope to build a strong coalition.
1
I have the strong impression that in recent decades right wing judges and justices have used standing as a way of trying to close off access to the courts. To some degree this appears to be based on irritation with the amount of litigation going on, but mainly it seems to be a conscious attempt to deny access to the courts to people who can't afford to hire the sorts of attorneys whose legal creativity can "manufacture standing", so to speak. I think the two issues tend to combine for some jurists, in a feeling that only "important" people suing about "important" cases ought to be in court, where importance is conflated with wealth, influence and, disproportionally, whiteness and maleness.
16
You've got to hand it to conservatives. They've been patient enough to play the long game, and they've found a way to exploit every possible legal loophole.
Even if inevitable demographic shifts render the Republican party toothless in elections, we may still be fighting the stain of the Federalist Society and Mitch McConnell for generations.
25
@JB Given the way they've packed the judiciary these past three years, we certainly will.
4
@JB
When you have money you can play the long game. When you are starving and out of work you have to focus on short term solutions.
1
That Americans might be denied standing and thus access to federal court is not a dry topic. In law school we learned how easily the federal courthouse doors could be barred to vulnerable people thereby denying us our Constitutional rights.
These cases are a warning that we cannot trust lawyers and judges on the right to protect us. We must pay attention and when we see extremists judges trying to lock doctors out of federal court preventing them from protecting the Constitutional right to privacy of pregnant women and girls we must vote those who appointed those judges out of power.
Otherwisewe will become a Christian Shariah country where little girls and poor women will be forced by the police state to carry every pregnancy to term.
14
What I've never understood is how the Justice Department has standing to challenge (either directly or as amicus curiae) a law passed by Congress.
5
@Don Feferman Just because a law is passed by Congress, signed by the president, and in place for several years without complaint does not mean it is Constitutional (see Judicial Act of 1789 or Missouri Compromise for famous examples). The Justice Department, which is part of the Executive branch, can claim standing by asserting that a law passed by the Legislative branch alters the intended separation of powers, even if a previous president (mistakenly) signed it. I'm not saying that applies is these cases but, technically, only an amendment can alter the powers of the various branches.
Donald Trump once famously, and likely accurately, said he could shoot someone on Fifth Avenue and he wouldn't lose any voters. For those same voters, if the Supreme Court held he could also never be prosecuted for that murder, the Court would be praised.
Once-upon-a-time, the Supreme Court would at least occasionally uphold the rights of the powerless. Nowadays, that seems inconceivable as Justices retreat into their tribal corners. To me, after Bush v. Gore, Citizens United and so many other cases, it's also inconceivable that the Court maintains any respect.
25
The long-standing politicization of the SCOTUS has never served America well, but the hyper-politicization of it by the GOP in recent times and by Trump the last four years directly imperils democracy and America’s constitution itself. The only question, after decades leading to this juncture, is whether it can be changed when the problem is precisely the most powerful legal institution in the nation?
16
Does the author here realize that Trump is a conservative? So of course he opposes abortions, and support other conservative causes. If Obama was in office, his administration would take the opposite view. To quote Obama, elections have consequences and the most consequential is the appointment of conservative judges by Trump to the Supreme Court. If he is re-elected, he will likely have the opportunity to appoint two more. Given the resistance movement propensity to take any and all Trump initiatives to court, It is essential for Republicans to fill as many vacant seats in the federal courts with very conservative judges. It’s ironic that Trump, who has been so disparaged by his opponents, as an incompetent president, should be so successful in restructuring the federal courts. More importantly, at a time when neoliberal philosophy is challenging foundational constitutional principles, like freedom of speech and presumption of innocence and are promulgating initiatives like open borders, re-distribution of wealth and government censorship of disinformation, appointment of conservative judges should be this administration’s top priority. The more intoxicated that liberals become with the failed socialist political paradigms of the past, the more our democracy requires a judiciary that defends the principles embedded in our Constitution.
2
@Raul Campos
Trump is not a conservative. In fact most so-called conservatives today aren't conservatives either, but that is another comment. Trump is a opportunist whose only principle is expediency.
It is not Trump who was "so successful in restructuring the federal courts", it was Moscow Mitch who sat on Obama's nominations and simply refused to fill the vacancies leaving many open for Trump who chose the ones handed to him by the radical right interest groups.
There is no such thing as "open borders" and there really should be no such thing as "conservative" judge which means "a judge with a political agenda" in the way you describe them.
Trump loves to use socialist moves such as "eminent domain" and to socialize costs while privatizing profit.
Of course the greatest redistribution of wealth from the 90% to the 10% is advancing at record pace under Trump.
8
@Raul Campos, you can thank McConnell for the judges, not Trump.
5
@Leonard
Thank you Mr. McConnell!
All attorneys are ethically obligated to fully and robustly prosecute their case. However, with clear injury, direct causation by another party, and direct relief from a favorable decision, arguments against standing become ethically questionable. Having been involved in issues of standing, I have observed litigants challenging standing of their opponent frequently have the weaker case under the law. If we are a nation of laws and not of men, there should be a substantial consequence for bad faith challenges of standing.
5
Obviously, every administration does its best to oppose lawsuits that are at odds with their interests at every court level, so that's not any surprise. It's only when the liberals are being challenged does the Times see a problem. With all aspects of daily life now in the hands of government, no one should be shocked that the court will now increasingly be involved in all manner of disputes that lawmakers have taken sides in and where government funds are at stake. It would be refreshing if government would keep out of the peoples business, allowing for the maximum of personal freedoms and responsibilities.
3
@sob
"It would be refreshing if government would keep out of the peoples business, allowing for the maximum of personal freedoms and responsibilities."
I agree with you almost down the line, except I have a really strong feeling that you and I would disagree what "allowing for the maximum of personal freedoms" means. Does that mean that the government should restrain its attempts to control women's access to abortion? If it does not then I disagree with you emphatically. Let each decide these issues for themselves and then God (if you believe) will judge when the time comes. I personally think abortion not to be a moral choice, but I also don't intend to attempt to stop someone who disagrees with me from having one.
1
The political bias you describe is equally likely to occur if and when courts are led by judges appointed by progressives. That outcome would seem to be a reflection of human nature. The real question is, are there any mechanisms that could be used to bring some balance of political views to the courts. Term limits perhaps? Larger numbers of justices could make for an even bigger problem of ideological packing.
2
Another interesting column. You’ve got one thing right- it’s a dry topic. And I have to agree with some of the comments, it’s an area used by all sides. But one comment had me imagining, numerous Supreme Courts.
Restructuring our court system so that all the, dry, initial questions are immediately appealable, with a short time frame for resolution. Standing, jurisdiction, an appropriate ‘class’ for class actions- right up the line before anything else. To a ....Basics Supreme Court. Once decided there, the case then moves on. Other substantive issues, during trial, appeal, may fast track to a Second Supreme Court....different time frame, but once resolved...the case moves on.
Specialty courts seem to be a trend (drug courts, and the older juvenile court systems), maybe time for specialty appellate systems. We should be past demanding only nine people decide all these issues, sometimes way late in the process. Justice shouldn’t take 5 years.
I’d like to see you do a series of articles, with your much-closer view of the courts, on possible reforms, changes. If you could wave a magic wand, what would you change?!
9
I never realized that Joseph Heller's "Catch-22" was a non-fiction work until I read this article with the Department of Justification's arguments.
Libraries everywhere will need to re-classify the book and place it more appropriately in the legal section next to John Yoo's Opus work on "Torture Revisited, an old Idea Whose Time is Now," or the Supreme Court's Citizens' United decision that "Corporations are People" and their ruling that the Voting Rights Act was outdated and therefore unconstitutional.
14
Don't put too much hope in the decency of SCOTUS judges to make the right decisions on standing. There is simply too much ideology involved. The only way to address this issue is to vote and get a Democratic President and Senate majority elected next November. A new Solicitor General who then would apply common sense to the issue of standing vs. the current incumbent who uses it as a weapon plus the appointment of judges who follow the constitution and precedence instead of being driven by a desire to do the business of the old white men establishment will make the difference.
13
After hearing opening statements in the Clinton impeachment trial, Senator Robert Byrd moved for dismissal of both articles of impeachment for lack of merit. The motion to dismiss failed on a party line vote of 56–44, with one Democratic senator voting against dismissal. The Senate then voted on whether to call wittinesses. They voted go call three witnesses.
In the Trump impeachment trial, there will likely be a motion to dismiss immediately following the opening arguments. If the senators vote along party line as they did in the Clinton impeachment, the articles will be dismissed by a 52-48 vote, with one Republican voting against dismissal.
4
@William Case So by bringing up an old case about sex (a gotcha moment rather than something important to Americans), is your point that standing doesn't matter since Republican lawyers are only interested in outcomes, not the law?
8
Specific legal doctrines rapidly are losing all relevance in the modern American legal system.
They Supreme Court of the United States has been delegitimized by Republican majorities that all but shredded the Constitution in patently partisan, immoral and unprincipled decisions in numerous jurisprudentially specious decisions, most notably:
Bush v. Gore (2000)
Heller (2008)
Citizens United (2010)
Holder (2013)
Rucho (2019)
Corrupted by Federalist Society elitists, the U.S. judiciary now is little more than an agency of the Republican Party. Their decisions no longer are entitled to obedience, respect, or even deference.
The "social contract" has been broken and America is a lawless, failed state ruled by imperium, not authority.
182
@Been There No, not "been there" nor "there," but "heading there" would be a fair comment. It's true that the Supreme Court rendered decisions based on personal preferences rather than law in the cases you cite, and that's very unfortunate. But they are, as of now, exceptions to the norm. We've had such Supreme Courts before, and the Rule of Law has largely survived. I also object to your angry rhetoric. Of course we're angry about these things. But anger hardly persuades anyone of anything except the angry person's inadequacy.
6
@Been There Agree! The Federalist Society has replaced the ABA as the most important endorser of judicial appointments. Some young recent appointments were rated "not qualified" by the ABA. Our courts are comprised for the duration of their life.
23
@Lawrence
The ABA is not an unbiased arbiter of justice. It is the trade organization that represents 10% of practicing attorneys, heavy on ambulance chasers.
They did rate Kavanaugh as well qualified. Of the hundreds of judicial appointments, there have been three or four who the ABA rated unqualified and most of those nominations were withdrawn.
The ABA is biased in favor of activist judges and the Federalist Society is biased against activist judges. They should have equal advisory positions. The president nominates and the Senate confirms.
We are overcoming eight years of Obama. Democrats are likely to get their chance after eight years of Trump.
In this, as in a great many things, Trump is leaving the U.S in shambles.
19
Excellent article, thank you.
7
Get it straight and report accurately:
Congress DID NOT - I repeat DID NOT - repeal the tax penalty for not having health insurance. Congress DID NOT have the authority to do that in a BUDGET bill. Instead, they set the tax to $0. What that means is that any future congressional budget bill can set that tax to another amount.
12
@Gusting I didn't realize this, thank you
2
As we edge closer to the becoming the conservative religious caliphate the Federalist Society demands, we'll have no choice but to remake the Supreme Court completely, and expand the number of federal judges as well. The tyranny of minority rule in American ends this November.
26
@Markymark
It ends if the Russians wish it to end.
The Trump doctrine is governance by fiat through the elimination of any mechanism to challenge the tyrant. By narrowing standing to the vanishing point, the Trumpists are destroying the fine balance of the separation of powers by arrogating all power in the Executive. Squelching Congressional oversight and Judicial review is a sinister strategy to establish a dictatorship.
11
It goes both ways.
The University of California sued the Federal Government on behalf of DACA people (AKA, illegal aliens).
Did the University really sustain an injury in that case ?
It seems a legal stretch.
3
The piece seems to be asking "Who Will Be Left Standing by the Supreme Court?", not "Who Will Be Left Standing in the Supreme Court?" There is no immediate prospect of change in the makeup of the Supreme Court.
3
Conservatives will give a collective yawn to legal arguments and the Constitution because they prioritize power and their own version of morality.
10
The first principle of any legal action is that everything applies, if the lawyer can find some words to argue it. It may not work, but it can be attempted.
The second principle is that nothing is neutral, everything is subject to personal ideology and prejudice. Combine that with the first principle an you have today's Federal Court system.
Why else would Mitch McConnell spend so much time and effort packing it? Or discard the Constitution to deny Obama a nomination?
268
Well put. I recall years ago being involved in a rather contentious divorce proceeding and having my lawyer tell me, matter-of-factly, “Run it up the flag pole and see if anyone salutes.” That would be Principle 1.
By extension, Principle 2 involves making that flag look vaguely familiar to the intended audience...Confederate stars-and-bars, perhaps?
22
@Cathy, It simply does not follow from "nothing is neutral" that "everything is subject to personal ideology and prejudice."
Of course judicial decisions stem from values and affirm or reject values. But despite Mitch McConnell's circus in the Senate, senators will soon swear an oath to adjudicate impeachment charges impartially, according to whether presidential actions have endangered the nation and abused executive power -- value judgments!-- and to decide such questions without regard to their political biases, their "personal ideology" or "prejudice."
Can the senators decide impartially? Of course they can. Will they do so? It's less likely they will do so if the public considers it normal or unavoidable that they will decide according to their political biases. 'Ought' entails 'can.' If they cannot avoid prejudice, how can they be held to account for a biased decision?
Judges, like legislators, have an obligation to adjudicate on the basis of values manifest in law and in the foreseeable consequences of their decisions. And we need to hold judges and justices and senators who neglect this obligation to account.
3
Sadly the reason for Courts is justice, seeking the truth and avoiding harm. Justice in America has been sold to money interests and therefore Federalists that will comply only with rulings that benefit the money class as well as pleasing the Evangelist voting bloc. But in reality, real Americans are being harmed by stupidity, such as Little Sisters, the Baker, and the coup d'etat Citizens United. Yes, they are seriously looking to overturn Roe v Wade, the ACA, as well as other pesty standing decisions.
These cases you cite all lack credence as well as honesty, they are just convenient to advance an agenda. Therefore we know the ruling. The Courts will lay polluted and destroyed, such as the Legislature.
5
I Just want to say thank you Ms. Greenhouse for columns taking on seemingly abstruse subjects that have hugely important obligations. They are challenging to read, even for a fairly sophisticated reader like myself. This is not the first column of this sort. Anyway, keep up the work; we learn much that is useful here.
10
We have an AG, William Barr, who is an unabashed Republican political operative. He doesn’t care about the law. He doesn’t care about justice. He cares only for the zealous evangelicals and the ultra right Christians who are a crucial part of his client, Donald J. Trump’s, base. He is a right wing Christian whose religious views dictate his official policy. And on the Supreme Court we have Kavanaugh, Alito, Gorsuch and Roberts who also are influenced by, and perhaps at least to a degree captive to, their similar religious backgrounds. This is a toxic situation for a “justice” system which is supposed to be free from religious influence. While we can’t and shouldn’t expect members of the judiciary and justice systems to be irreligious, we should expect them to check their religion at the door. Too sadly, this has not happened.
12
Of course, the most notorious problem of "standing to sue" was Dred Scott, who the US Supreme Court ruled had no standing to sue in SCOTUS because, as a slave, as property, he was not a human being and had no right to sue for his freedom in the Court.
The prisoners of the US government at Gitmo have, presumably, no rights because they are being held in a space beyond the borders of the US, so habeus corpus, the Bill of Rights does not protect them--these are not "core values" but simply administrative rules as far as SCOTUS is concerned.
5
Many of my friends and neighbors voted for Trump primarily because he promised to appoint pro-life judges. Their pastors told them this was the most important issue because it was akin to preventing many murders. Maybe you disagree, but this is a valid moral viewpoint.
My neighbors have no idea that the conservative judges are also restricting coverage for healthcare, indirectly closing a dozen of Alabama’s rural hospitals and causing thousands of deaths. They have no idea that the conservative business decisions are weakening union and workers’ rights, thereby suppressing wage growth. And they have no idea that decisions like Citizens United are allowing the wealthy to set their own tax rates at absurdly low levels, while the rest of us try to hang on in our subsistence economy.
If all your information comes from Fox and Christian talk radio, it’s hard for actual facts to break through. Although I support Bernie, bless Steyer and Bloomberg for buying ads in our market and trying to educate voters. Don’t give up on us. We’re not stupid, just misinformed.
12
@BamaGirl
Misinformed - well said.
How to fix it?
2
@BamaGirl , I just sang the Messiah in December. The lyric "all we like sheep, have gone astray" has stayed with me as I continue to explore the fissures in the de-united states. As to your "sheep-like" neighbors: they are stupid if they do not understand that their pastors should not be telling them how to vote. And if they try to do so, the parishioners should walk out. I had many friends in CA who told their Catholic priests to stop preaching in support of the 2008 state amendment to outlaw gay marriage. When the priests refused, my friends stopped attending the church, some forever. As to the churches themselves: when in charge,the Democrats really need to consider the fairness of extreme religious political organizations getting tax free status, as if they were an a-political non-profit, such as the local PTA. As to We the People: most Americans no longer belong to or attend church. We need to insist that our elected politicians stop their deference to church people. Doing so violates the Constitutional separation of church and state. Doing so contributes to the tyranny of the minority-- churches and their flocks--over the secular majority.
2
Only Linda Greenhouse could make the issue of "standing" interesting. Thanks for the eduction.
10
Easy peasy. Anyone advocating a Republican supported issue will have standing. The rest need to sit down and "get over it."
4
John Roberts and his court will live in infamy in history if we survive to have a history. He and it wil be remembered as tools of the republicans. Perhaps he can sit with Kavanaugh and watch their father win his nomination. What an uplifting and proud moment to share. Or talk with Gorsuch about his stellar nomination to the corut by the overturning of the Constitution by moscow mitch. Robert's legacy is so tainted it will live in perfidy.
5
Good lord this is depressing! The drumbeat of a conservative takeover of the federal court system continues to increase in tempo and volume.
10
Where does the fight against women end?
It only leads to women being locked up until they give birth.
There is no other final conclusion.
Ask your GOP Congressmen where they stand on that.
Demand an answer.
5
Our current “administration” possibly views, as stated in many reports, as Congress and the courts as impediments to the grand scheme(s) of Trump. We see in one report today that Trump wanted to unilaterally erase the Foreign Corrupt Practices Act-the anti bribery law-that possibly stifles his personal business dealings.
Now we see the Trump administration attempting to do an end run around plaintiffs who may be acting contrary to the wishes of Trump and his cronies-business and the toxic extremist religion interests.
We the people have lost control of our government. We abdicated our role as the people that choose the government that in theory works for us.
So, given that Congress, and Trump, knows that we the people have given up that role we are now governed by an ineffective Congress, a cabinet made up of self-dealing Trump toadies, an appellate court made up of more toadies and Trump himself, the stable genius, who would like to be our despot.
2
Do you think it's just a coincidence that standing is a favorite issue with Chief Justice Roberts?
5
The problem of standing is ancient, and very important. Way back in 1771 Lord Chief Justice Mansfield granted standing to escaped slave James Somersett in London, heard the case, and decided that "the black must go free" because English law did not enslave him. In Dred Scott v. Sandford Chief Justice Roger B. Taney denied standing to Scott on the ground that no black person within the United States had rights that a white person needed to respect, and Scott remained enslaved. Silencing people who come to court seeking justice under the law means denying their right to seek it.
113
@Ed
Thank you, Ed. Ms. Greenhouse calls the topic "dry." but to me that would apply to all the basements, foundations and infrastructure that hold up our world. Back in my law school days, my successful moot court argument was on an issue of federal standing and constitutional law was by far my favorite subject because of its foundational role. It came up during my career regularly and not on fancy federal cases, but most involving fundamental everyday rights. I even love the word"standing" since it signifies planting yourself in a firm position to protect your rights.
12
In a democracy, law should depend on the will of the people. But once you get the courts involved, it becomes vulnerable to legal tricks and subject to manipulation by lawyers, who are an elite group.
1
I agree with Ms. Greenhouse, standing is an issue that has corrupted too many cases and really has to be addressed separately from the whims of justices.
However, if Ms. Greenhouse believes an abortion doctor (or clinic) has standing in abortion cases, then the hangman should have standing in capital punishment cases.
I don’t think it will be the Supreme Court who will prevent abortions from occurring in Louisiana or any other state in the country. It has been various pro life groups who have been able to close abortion clinics across the country. They have been successful by conducting quiet vigils in front of Planned Parenthood facilities and other abortion clinics. There has been strength in numbers and the growth of the movement by dedicated people. I wish it was the Supreme Court who could affect the decrease and eventual ending of legal abortion but I am not too optimistic.
Tomorrow will be the Washington March for Life which will be attended by hundreds of thousands of people from all over the country. Young and old, men and women march for the rights of the unborn. This important march started in 1974, a year after Roe v Wade was passed. I will be among the many hoping to change the minds of women to choose life. We in the pro life movement have been instrumental in convincing women to give birth. We have made great strides but our work is not done. We will continue for as long as it takes. We have already witnessed over 60 million abortions in America and want this to cease. We will not give up and we will be the ones to make a difference.
@KMW If one is truly an "originalist", and wishes to march for the principle that a fetus is a person with rights, then pray tell must you not march against those who masturbate, killing billions of LIVE sperm? Take me back to Catholic school with Nuns very explicit about the evils of masturbation. Consistency in right to life doesn't begin with a fetus, but with spermatozoa. Imprison the masturbators or you are inconsistent with who or what deserves to live & die BEFORE THERE IS BIRTH.
4
Perhaps the doctors could argue that they have standing because they are being deprived of the income that they would get from performing the procedure.
In that case, they might have to sue under their own name but it would surely give them standing.
3
@mlbex
Abortionists don't want to talk about how much money they are or aren't making. They prefer the image of "abortion providers" serving women.
@Charlesbalpha They're not doing it for free, so it gives them standing, regardless of what you think about them or the service they provide.
2
The abortion problem can be greatly reduced by giving all women birth control and teaching boys and girls sex education.
But the pro-life people have been fighting for 40 years instead of working together to get women birth control.
We could have reduced unwanted pregnancies and abortions by maybe 80%? Wouldn't that be great.
And every pro-life and evangelical I have talked with have all used birth control.
But the right doesn't want to fix the problem. Just continue the fight and so all these people vote for Republicans.
Then Republicans cut taxes for the rich and increase deficits and debt.
To be paid for by us, our children, and grandchildren.
30
@Independent And I've known some who had abortions.
4
@Maggie
"There's a reason nothing has come to market by Big Pharma over the last 70 years to facilitate inhibition of sperm."
BUT: When males need something to keep them pumping out that semen, Big Pharma is right on it.
1
Justice is no longer Blind. We will see if Justice Roberts makes some decisions that highlight the politicization of our our formerly high integrity Justice System.
When Justice becomes Ad Hoc and Whimsical; what comes next?
8
Why doesn’t Rule 11 of the Federal Rules of Civil Procedure apply to frivolous standing defences raised by Trumpo’s lawyers with the financial and ethical consequences violation of the Rule entails?
Under the Rule attorneys and their clients are exposed to financial liability for bringing frivolous claims or asserting frivolous defences to a legitimate claim.
Lawyers violating the Rule are also subject to disciplinary proceedings in the state and federal jurisdictions in which they are licensed to practice.
13
@winthropo muchacho
I'm curious to know what standing Trump has to get involved in these cases in the first place. Maybe the Court could solve this problem by declaring that the president has no standing in a judicial case unless the case involves him ( like hiding his tax returns)
3
Once again, thank you for clearly explaining the consequence of Supreme Court cases and actions. It is mystifying how doctors may be excluded from having standing regarding abortion restrictions, but two guys who don't want to be forced to purchase insurance or pay a fee are no longer required to do either, and yet persist in their suit. These right wing justices seem to lack all logical thought.
20
When it comes to politics, everything is politics. The courts appear to make sensible decisions in most cases that I read about that don't involve politics, but when it comes to political cases the judges seem to have made their decision beforehand. Particularly in the case of the Supreme Court appointees we see that the president and senators seem to know the politics of the nominee beforehand. How ? It must be the judges previous decisions record: the politics of the judiciary is so ingrained that their prejudices hugely affect their decisions. So one has to ask: "why do we have political trials at all, aren't they a waste of money since the judges have made their decisions beforehand ?". Ok, there's the problem, where's the solution ? Here's a suggestion: eliminate political issues from the docket of the Supreme Court, just let the party in power decide the case. Apply the money saved to food stamps or wall-building depending on the party in power.
4
When either side forgoes a standing argument, they fail to fully litigate their case. And so both sides argue standing when it benefits their cause. Dems and Republicans act similarly. And they are similarly justified. There is nothing wrong about arguing standing when there is a chance of prevailing on the issue. Both sides do it and they are similarly justified in doing so.
1
This article reminds me of the divisive nature of this nation with the Courts as the only means of possible resolution.
The issues that confront every aspect of life is apparently a legal matter, like it or not, this is where we are.
The pursuit of any matter of freedom is now litigated, no matter the gravitas or simplicity of the matter.
2
Who is better qualified in an abortion case than a doctor to declare standing? The doctor and patient are partners in the treatment and both share in a courts finding.
The contrived standing by these two men against the ACA denies the rights of millions to the benefits of the ACA and is a red herring to undo the law. Trump will rue the day that he undos the ACA as the suffering will bring to light the failure of Trump to present anything of value to replace it.
As for the the standing of a town to address the Wall who is better placed to see its implications of a project that is being jammed down its throat.
26
I was glad to become better informed about the legal issue of standing and how it has become weaponized in our federal, and state, legal systems. But this seems to only be part of a longer thread of moving raw politics into our courts. Already SCOTUS looks very little different than the US Senate on all but the most arcane legal points: any issue with a thread of political content is decided by the political majority 5-4, over and over and over. The legal "opinions" are laughable, and almost insulting. There is a SCOTUS political whip, and the members of the majority party fall right into line. Now we have the rest of the federal appellate system behaving the same way. They can use standing, which we now see is the current strategy, and they will evolve to other tactics as well. We see the chipping away at confidence that the federal judiciary will use the law, when the requirement for lifetime appointment is now political purity.
20
@Not Rushed to Judgement
The court did lose most of its respect in 2000 with the Bush v Gore ruling. But who cares? The court does not want respect, it wants political power. Justices do not run for election and they are not concerned with the reaction of the people. That is why the court was targeted to become a third legislative branch. It has always had more power in certain areas than Congress and it is simply expanding its view of what those areas are. The Democrats should have also been playing this game for decades and because they did not they created another political vacuum that the conservatives filled. One wonders what Democrats think about in Congress because they don't seem to be doing any politics anywhere.
1
In the ACA case it seems that the Solicitor General's brief says it all -- "all parties agree" that the plaintiffs have or will have suffered no injury as a result of the law. It will be a travesty if this case is not dismissed.
13
With political paths increasingly blocked, loss of standing in courts increasingly means no voice. Taking it to the streets is seeming more important every day.
15
Over a decade ago, I sued the federal government over some rules the FCC issued pursuant to the Telephone Consumer Protection Act. The act provides statutory damages for a common law tort of printing an advertisement on someone else's property without consent (also called a "junk fax"). The act had been amended to provide an exemption for businesses the fax owner had an "established business relationship" with. Which is fine: the law can manage statutory damages however it wants. Yet the common law tort of conversion is still there regardless of any statutory damages or established business relationship.
But the FCC issued regulatory language that essentially said that businesses were now "permitted" to print ads on customers' property.
So I sued on behalf of my own company, which was being harmed by tons of junk fax spam. The government can't affirmatively permit third parties to take your property, I argued. The Supreme Court has already decided this, in a case called Loretto.
But the D.C. Circuit Ct. of Appeals tossed my case for lack of standing, even though I provided affidavits of the constant and imminent harm of regular conversion of my private property.
The court could have decided the case on constitutional principles re property rights, but it would have upset the TCPA apple-cart big-time. They could have said I had standing, like persons harmed by pollution.
They ignored my evidence of harm, and punted to clear their docket.
Oh well, I tried.
11
@Doug McKenna I applaud your effort. I finally just unplugged my fax machine!
3
Many NYT readers who write to say they do not support Trump but won’t vote for a progressive Democrat really need to read this column and think about its implications. Four more years of Trump will negatively impact the courts for decades. Progressive Democrats whose political vision is narrowly focused on presidential candidates also need to think about this. Paul Krugman’s labeling of the GOP as a cult that no longer cares about country or Constitution succinctly describes the situation, and control of the judiciary is the real prize. Too narrow a focus on the executive branch fails to see the forest for the tree.
53
@Richard Frank
The eventual result of continuous minority rule is revolt. The people have a voice and it will be heard one way or another. Our system was supposed to allow all voices to be heard and for the minority to hold sway on most issues. Imposing legislation through the effect of a nine person panel will not overrule the voice of a majority of the people and their legislators. What it will eventually do is cause war.
1
@Maggie
Somehow Bernie is standing there and you don't see him. He has the biggest poll results today and he will have even bigger when he wins the primary. Why not get on board with the authentic progressive and leave the retread "used to be Republicans" behind?
Here I thought it was called a "sitting" Court, as the Justices are required to sit and get things done.
The Judicial branch is not UFC, as are the Legislative and Executive branches who are still tearing out one another's throats.
Let's all hope the Judges sit down and get their work done, blind to outside influences.
4
The original breakdown of the Supreme Court occurred when the court agreed to weight in on Gore v. Bush. In so doing, the court became a political institution that stepped out of the checks and balances of power by actually acting to shape it’s own future. From that point on, we have watched the slow decay of principle, replaced with partisan decision-making.
What is ‘Originalism’? Answer: An excuse for financially healed white men to pull rulings out of thin air in the name of their own preconceived notion of historical precedence. These ruling progressively reflect the opinions of a shrinking, yet empowered, minority.
At this point the Supreme Court needs to be neutralized. A fifth liberal judge (Garland for example) needs to be added to the court, thus creating a 5 by 5 impasse. This needs to be done on a temporary and transitional basis with ground rules for moving to an eleven member court. Term limits need to also be applied to the court.
By neutralizing the court, the justices will only be able to rule in cases in which consensus building occurs. Otherwise the court will be blocked from making historical decisions that do not reflect past precedence and are also unpopular with a majority of Americans.
26
@Bob
I agree. Bush vs. Gore was the pivotal moment. And Mitch McConnell’s defiance of President Obama over Merrick Garland’s appointment sealed the overthrow of any neutrality. The court should have risen up in defense of the right of Mr. Garland to a hearing. We now have two unlawfully appointed justices.
9
@Bob
To do that would require both a Democratic president and Senate. We have seldom had that kind of power distribution and the last time it existed (Obamas first two years) Obama did essentially nothing with it. So we really need more than a Democratic president, we need a true New Deal progressive president. The only one on the horizon is Bernie and the clueless Democratic party has been trying to sabotage him for years.
I remember reading Singleton v Wulff in law school. It made sense then and it makes sense now. If that case gets overturned by the court built by McConnell, anything can happen. I think they’re one right wing judge away from overturning Roe v Wade.
14
Principled Democrats should reject Ms. Greenhouse’s argument as disingenuous. Both Democrats and Republicans consistently raise standing arguments when they serve their interests. Ms. Greenhouse is correct about the cases she mentions. But she ignores Democrat standing arguments in Second Amendment cases, cases attacking Obama’s immigration policy, and cases attacking Obamacare.
Democrats and Republicans use standing arguments in a nakedly partisan way and they are similarly biased.
2
When a group of environmental organizations sued to prevent Con Edison from building a pumped-storage plant on Storm King Mountain, a project that would have marred forever the beauty of the Hudson River, "America's Rhine," it was argued that they lacked standing because they would suffer no concrete injury. They replied that their injury would indeed be grievous, and moreover, it was their responsibility to protect the countless others living near the river, as well as all those who visited to delight in its beauty. The Supreme granted standing, blocked the project and opened the door to many many subsequent lawsuits that have defended our environment against countless and ongoing threats. Standing matters!
58
@Thomas As I recall the granting of status only blocked construction until a massive environmental impact study was completed and the results presented in court. By that time ConEd determined that the project ceased to be economically feasible.
2
I recall vividly during the 2016 election lobbying family and friends to vote for Hillary Clinton, even if it required holding one’s nose, for the singular reason that the multi-decade future of the Supreme Court and federal judicial system hung in the balance.
How many of them listened? I’m embarrassed to say.
33
@David Walker
I agree, Gorsuch and Kavanaugh will be felt for many, many years.
Same for all the judges McConnell is appointing to the lower courts.
6
@Independent Why can't Kavanaugh be impeached for lying during his confirmation hearing?
3
In the references to court decisions it would be informative to know how Republican and Democratic appointed judges on a panel voted. I assume judge King was appointed by a Democrat but the article seems to avoid the issue of political bias in the judiciary. Given the number of Trump appointees this seems crucial and perhaps worth a future article.
9
The Alliance for Justice (afj.org) maintains an extensive database on judicial appointments. AFJ is left of center but the stats are accurate.
Not being a lawyer, the issues discussed in this column strike me as somewhat arcane, but the decisions clearly have real world consequences for the lives of large numbers of people. This disconnect between court decisions and the ability of laymen to understand or evaluate these judicial actions helps illuminate, I think, the frustration that many Americans of all political persuasions experience with our system of law.
In the current environment, liberals are the most vocal critics of the Supreme Court, largely because they fear the impact of of some of its key decisions. In the 1960s and 1970s, conservatives led attacks on an "activist" court which interpreted the Constitution in ways they considered harmful.
In both periods, lawyers employed their expertise to explain the flaws in the reasoning behind controversial decisions. However plausible these analyses, they often did not enlighten the typical layman, who had to evaluate the decisions based on the outcome she preferred.
In Roe vs. Wade, how could most people judge the validity of a decision that discovered rights in the Constitution not spelled out in the text? Popular reaction depended on how each of us felt about a woman's right to have an abortion. Similarly, in the case involving campaign spending, did it make legal sense to declare that money was a form of speech?
Greenhouse explains these issues better than most scholars, but a problem remains which affects trust in the rule of law.
15
@James Lee
Perhaps the loud criticism reveals how political zealots, of all types, feel when the court pushes back, and tries to enforce some semblance of legal process and constitutional grounding.
In any case, consistent logic is not a common human trait.
1
@James Lee "trust in the rule of law" It appears that the GOP want no such thing. if we trust the law, we have less trust available to surrender to the mob of authoritarian cultists who are aseeking to undermine and weaponize it for their own political ends (and self-enricchment)
2
MS. Greenhouse writes: "The only current justice to have questioned doctors’ standing is Justice Clarence Thomas, who raised the issue, seemingly out of nowhere, in his dissenting opinion in 2016 in Whole Woman’s Health v. Hellerstedt, the case in which the court struck down a Texas admitting-privileges law identical to the Louisiana law the Fifth Circuit subsequently upheld."
Thomas obviously didi not raise the issue out of nowhere. He is a card-carrying member of the Federalist Society, which manages a farm team of conservative, anti-abortion lawyers and lower level judges who may someday be called up to the big leagues (SCOTUS) to replace retiring liberal justices. The Soeciety's number one issue, with which it is supported by a wide range of right wing pressure and lobbying organizations, is to overturn Roe v Wade and, if possible, eliminate all abortions for whatever reason.
Standing, as Mrs. Greenburg writes, is a seemingly minor legal restriction, but one that is now being used to stymie any court case that is filed on behalf of individuals directly affected by restrictive legislation enacted in red state legislatures. Her column today describes how standing is being used in unprecedented manner by the Trump Administration; she clearly didn't want to suggest Justice Thomas' inherent bias; I will.
53
Help me understand how being mandated to have health insurance is any different that of my being mandated to have car insurance in my state and other states. Both only apply if you are going to use the opportunity to drive or to use health services. Insurance is not only for your protection but also for the "Common Good" (addressed in the Preamble to the US Constitution). The common good being protection from financial loss do to uninsured drivers, or in the case of health insurance the protection form financial loss in the form of higher health insurance premiums, or taxes in the case of medicaid. Additionally in both cases the loss of productivity in the economy.
I agree that the type of mandated insurance, whether private or public should be left up to the individual. Many of the hospital charges I have seen on invoices are astronomically higher than those in other western nations, where medical coverage for all is the norm. I believe that we get lost in the idea of "me only, on my terms" which flies in the face of human needs for belonging, group involvement, instincts to compassion, and the communal care of the young that our species has exhibited over thousands of years. Where is our sense of community, belonging and the care of one another? I see it usurped by class separatism, racism and the deciding words, not mo but other.
59
@Vicki From Vermont: In an affluent post-industrial economy, many people may be employed for only one third of their life span. Such an economy needs institutions that fund people's lives when they aren't working.
25
@Vicki From Vermont FYI, the distinction relied upon by the courts that you do not see between mandated car and health insurance is that you have the choice whether or not to own a car (i.e., no car, no insurance needed). But you have no choice of whether or not to be yourself (no you, no insurance mandate is not a real choice).
I don't agree with that distinction and you probably don't either. I think it is a distinction without a purpose specifically contrived by ACA opponents to give them a wedge and bought by the courts. Nor do I believe that the issue really played out in the open before the courts, but that like-minded lawyers and judges worked it out in advance behind the scenes - probably at the Federalist Society; and then went looking for plaintiffs who made another improbable assertion to get standing that though there was no penalty for not buying insurance, they believed in following the law. Huh? What a set-up.
16
@Vicki From Vermont: One caveat to your good points - if you don't buy health insurance and suffer a grievous injury or contract some serious disease the hospital still treats you. They just pass on the costs to insured people to pay. In a real way, uninsured Americans do damage their community.
17
Ms. Greenhouse, your opinion is spot-on and timely, thank you.
I have been watching the Federalist Society, a political party tool born of the Reagan revolution, bend, twist, and pervert the law since the 1980s. The federal court system, including SCOTUS, has been corrupted by a Senate that is willing to approve unqualified, party loyal, politicians for seats on the bench because the right people benefit — corporations, the wealthy, and the Christian right.
I rue the day Joe Biden and his cronies granted the likes of Clarence Thomas a seat on the Supreme Court.
Nothing is safe, from a legal and law and order point of view, because five members of the Supreme Court are current or former members of the Federalist Society — John Roberts, Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, and Samuel Alito.
To make matters worse it has become evident that far too many lawyers in this country view ethics and the rule of law to be quaint concepts that can't be allowed to get in the way of acquiring wealth, power and advancing the interest of those who benefit from a corrupt political system and government.
Move over Russia the United States is poised to become the most powerful kleptocracy on earth.
174
@old soldier: Failure to enforce "Congress shall make no law respecting an establishment of religion" is the most outrageous failing of the Supreme Court.
13
At least four justices will agree with the Trump Administration in EACH one of these cases. The fifth may also agree, even though so-called conservative justices are supposed to respect precedent. These four -- or five -- justices are owned by the Republican National Committee and will do whatever the RNC wants them to do.
60
Why is it that in trying to achieve justice a point is reached where lawyers become more adept at tangling wording of justice into Gordian Knots do nothing but justice a vague ideal that can never be reached. Justice becomes more of a game played by privileged people than an attempt to a wrong right.
16
Any hope of an impartial SC in the US went out the window with Gore vs Bush.
No more lifetime appointments. Does 15 years seem long enough? Beats me, but lifetime appointments seemed about right when life expectancy was much shorter then today.
One person. One vote.
90
Given that the Constitution, the supreme law of the land, states, in Article III Section 1, “The Judges, both of the supreme and inferior Courts, shall hold their offices during Good Behaviour...”. That means that it will take a constitutional amendment to enact a term limit on judges. That is extremely unlikely, given anything like the current political climate.
5
@Rob Brown
It would take a constitutional amendment, but 18 year terms for SCOTUS with staggered appointments would give each presidential term two appointments. Barring death, voluntary retirement or impeachment of a sitting justice, every president would have the same opportunity to impact the makeup of the Court, thus depoliticizing to the extent possible the effect of presidential elections on SCOTUS.
5
@Rob Brown
A lifetime appointment can be very short in time of civil war.
1
I would assume that Republicans never get abortions as this is a bedrock issue for them and of course their moral standing is beyond reproach. Wouldn’t overturning Roe vs Wade, then, certainly pave the way for a yuuuuge number of additional new young Democratic voters starting in 18 years + 9 months?
I don’t understand why the GOP wants to make itself extinct
19
Roberts may struggle for a while yet to maintain his own reputation while the other conservative justices fail to defend the reputation of his court. But he will end up following rather than leading them. As punishment for past disloyalty, Trump may tag him Chief Justice of the Thomas Court.
17
@Jeff Atkinson By the end of Trump's 2nd Term, 6 out of 9 Supreme Court Judges will be Koch Bros and their Consortium Acylites. Expect a deus ex machina in the 2020 Presidential election.
2
@Jeff Atkinson Indeed -- utter selfishness -- Me before millions --is a requirement to be Republican now nd imagined offences are political weapons
2
The issue of standing is also important to the Harvard admissions case brought by Blum on behalf of a loose coalition of Chinese parent groups.
Key to Blum's initial loss was that they did not produce a single Harvard applicant that had been harmed. Judge Burrows noted that in her decision. Because Blum is obsessed with eliminating affirmative action, the judge understood correctly that the case was just another battle in his war.
I don't think Blum's lawyers can do much about it unless they produce at least one, or more than one, directly affected applicant.
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Not a lawyer here, but has anyone tried to sue a local, or state government for child costs for not allowing rights to maintaining their health and life. Like, make the government pay a living cost for government infringement.
Maybe the government must pay a woman $25,000 a year for a first child and $7,500 for each additional child only because that government interferes with a woman’s right to choose when she wants to start a family. Convoluted I realize, but are there remedies for a woman’s lost right?
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@Dave Brown
Not a chance. Women “choose” whether to get pregnant or not. The argument is that the availability of abortion is not a right, so nobody’s rights are being infringed if it gets banned. I don’t agree with any of that, but that’s why your argument would fail.
@Dave Brown It would certainly catch conservatives attention as nothing is as important as their money--Oh- and their right to tell everyone else what to do.
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@Peter
Women choose to get pregnant and women choose to have an abortion. Its a free country and women choose a lot of things. What's your point?
Do Republican politicians really want Roe overturned? Without it, they lose a huge issue to maintain their base.
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@DMS Yes, as with the demand thta Ukraine publically announce investigations into the Bidens as opposed to actually doing them, the GOP needs the issue of publicllay opposing Roe as opposed to actually voiding it and losing it as a weapon
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I am not a lawyer, but the issue of standing is, at the basics, easily understood. In recent Court activity, relating to immigrants and in the case argued about the shooting of a Mexican boy in Mexico by a Border Patrol agent on the US side of the border, standing has been of critical importance. The second principle relating to standing is actual harm. Courts have a terrible problem with potential harm, so many current issues are left unresolved or actively discarded because the bad news has yet to strike. Among the reasons for creation of law, rules and regulations, there are the classes that I call (a) rules to allow social order and (b) rules to prevent harm. Examples include federal regulations about how to split up the broadcast spectrum of frequencies for (a) and regulations for management of research on dangerous things, such as viruses, for (b). Although one can comment on laws and regulations through testimony and through the Federal Register, once these rules are in place, it is hard to sue to remove or revise regulations until the rules themselves have caused a problem. The issue is establishing standing. In the case of abortion clinics, it comes back to the fact that we need to prove that the rules caused clinics to close, not just that there was the potential to cause closure. We physicians know that the rules requiring hospital privileges are a sham, but it is hard to prove, hence the lawsuit in Louisiana.
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@Jeff: Courts are instruments of harassment in the US. One their worst abusers is president of this continental scam.
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The issue of standing, while usually in the background, has always been an important factor, and far from being apolitical. As a gay man, I remember the issue of standing being prominent in Hollingsworth v. Perry. I remember my outrage at the notion that ordinary citizens could claim to be harmed by state recognition of same-sex marriage. We can go back to Dred Scott, in which SCOTUS held that people of African ancestry (whether free or not) were not United States Citizens, and therefore lacked standing to sue. Standing can be a potent weapon to preempt cases that might otherwise lead to adverse rulings.
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@syfredrick: Standing and jurisdiction should be resolved at the motion to dismiss level of litigation. Cases drag on for years in irrelevant courts under the fake justice system of the US.
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We live in divisive times. Abortion is one of those issues that implacably divides people in the U.S. But given the strong support among a large majority of the public for abortion, the conservative Justices know they have to be careful. They can't outright ban abortion.
Most likely they will render a decision that will allow each state to decide whether abortion is legal or illegal in that state.
A decision like that will contribute to the "geographical segregation" among the people of this country that has been occurring for several decades. Conservative people are gradually moving away from the western and eastern coastal states while more liberal people are continuing to settle in those states. The cultural divisions in the country will, thereby, continue to grow and fester and become more and more mirrored in geographical division.
Ultimately, the U.S. will become like two different countries. There will be the gun-totin, anti-abortion, pro-death-penalty, keep-the-missus-barefoot-and-pregnant, come-to-Jesus, lets-fight-another-war, the-market-fixes-everything states in the south and upper and mid-west versus the east-west coastal states.
Deep cultural divides coupled with parallel geographical divides does not bode will for the future of the Union. Will the country stay together or break up over the next 2 to 3 hundred years? That could be the unintended result of conservative, minority, control of U.S.
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@HipOath Very interesting comment.
Economists say that there is getting to be more and more difference between the largely rural (South, Plains, upper Mid-West) and the urban (East Coast, West coast). Urban areas have vibrant economies while many rural places are stagnant or in decline economically.
I would expect that the country could split in say 50 or 100 years. If it does stay together, most important issues will be settle on a state by state basis leaving the feds to only deal with foreign policy and economic issues. That is practically the case now.
Under President Obama and The Donald, the congress has been largely dysfunctional so we have government by executive order and government by the Supremes. That is if the Supremes determine that the plaintiff has standing.
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@HipOath Your optimism is refreshing. I am less sanguine. Looking ahead two or three hundred years to the future of the Republic? I'm worried about the next year leading to the irrevocable breakdown of our government. Peaceful separation into two countries? How about civil war? Goodbye, reasonable discourse? Worse. Welcome to one party, Soviet-style politics courtesy of the Roberts Court.
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@Martin Veintraub
Civil war? Please.
As soon as someone gets a bad cut on their finger, it would be over in a minute.
Some talk tough, some carry those rifles over their shoulders, but most are just not up to the task of a real fight. We are not the rugged self-sufficient folk of yesteryear. Who could fight on without all modern conveniences? Trench warfare?
We are too busy trying to live to even consider getting organized for 'civil war'.
I believe that a natural disaster or nuclear detonation is the only thing that will settle us all down enough to focus on what is important.
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I hope the "standing" of these 2 plants IS upheld, and the case goes swiftly to the Supremes. I love the idea of law-and-order republicans getting behind the argument that obeying the law is only necessary when there is an immediate penalty. And striking down the ACA will be just the earthquake that makes all its beneficiaries in those rural districts realize just how bad the GOP really is for their health and welfare...
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@dave
I'm curious -- did those two guys really want to bring down the ACA? Or were they only concerned about their own participation, only to become pawns in Trump's obsession with ruining his predecessor's greatest accomplishment?
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@dave
Nope, it'll still be the fault of the liberal boogey(wo)man of the moment. These people don't learn.
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@dave I have a friend that lives in the Midwest he (was) on the affordable care act and blames the Democrats because his health care was costing him so much, a Trump guy all the way now he has terrible insurance with a five thousand dollar deductible and dose not make the connection this all happened after Trump was elected not to mention Trump has done nothing good for we the people and healthcare, it would seem hopeless. The term law and order with Republicans is a oxiemoron.
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Another interesting piece from Ms. Greenhouse. She suggests she is going to be an unbiased narrator by stating, rightly, that legal standing is not a neutral, value-free determination by the courts. "It’s easy to lull people into assuming that the question of standing embodies some kind of neutral principle, divorced from ideology." (Indeed, there is nothing humans do that is value free). She then discusses pending cases in a manner that indicates that one side is simply in the legal right, the other is imposing its value judgments on the cases. This is a fine example of legal writing: to take a position and then to describe it as if it was the inevitable outcome of logic, history, or "right reasoning". Legal argument is rhetoric. This is not a criticism by any means, just an observation. Ms. Greenhouse is a very knowledgeable observer and excellent writer and I always read her column with interest.
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@Robert
One should understand, with respect, that one can state a view, point to truths, without being biased. 2 + 2 = 4 is a truth. To point it out, speak about it, etc., is not to be biased, it is to acknowledge the truth of it, the logic, and the reasoned understanding of it.
That is the challenge of law, and often the where the deficiency lies, even in the illustrious Supreme Court.
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@Robert
Your argument is cynical. It supposes that adherence to logical or objective truth is not also a value. But the fact that two sides disagree does not necessarily mean that both sides (or either side, for that matter) have valid points.
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One thing that makes Trump a capable politician even while burdened with a shocking level of incompetence on so many levels is his ruthlessness in pressing every political advantage.
Many Evangelicals and Catholics don't care about legal arguments- they KNOW abortion is murder although are mostly unwilling to call the women who receive them murderers. They KNOW that once a fetus is created that it is God's will that it be nurtured to birth.
This is so much more important to them than any other issue they will invest their vote in whoever backs their belief system.
This issue is singularly the most divisive in U.S. politics and has been used like an assault rifle by the GOP to obtain and sustain power.
Evangelicals were not historically a powerful partisan force until the passage of Roe. and subsequent efforts by GOP politicians to use the issue to pull voters who would otherwise vote for Democrats.
It is a strategy that has served Republicans well and just like gun regulations, these single issue voters are valuable GOP assets even though their positions on these issues are not in line with the majority of American voters, which would seem to be counter-intuitive as a political strategy.
The conservative Evangelical voter is as loyal to Trump as if he was an angel sent to earth by God and the fervency of these voters and their concentration in rural America multiplies their influence.
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@alan haigh Good comments.
That is why I doubt that the politicians in the GOP want to get rid of Roe or to settle the abortion issue once and for all. That issue has been powerful as a fundraising tool and a get out the vote tool for the GOP.
They want to nibble at Roe but leave abortion as an election tool for the future. They want to continue talking about abortion forever.
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@alan haigh This is why Republicans will never actually abolish abortion. Because once they do and that litmust-test issue is off the table, the public will have to turn to other policy issues--such as health care for their children and their elders--to make their electoral choices.
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@La Resistance
Good comment. I feel that if abortion is taken off the table -- the GOP will double down on immigrants, the drug war, and law and order. Those three issues involve blaming the dark-skinned for the country's ills and making life tough for people with dark-skins. AG Barr is already blaming "liberalism and secularism" for the country's problems.
The country should deal with health care -- but the GOP will do everything they can to avoid it.
It would be a good issue for the democrats to run on but can they get their act together?
Best wishes.
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When we lose Ruth Bader Ginsburg and possibly one other justice, Trump will establish a so-called conservative majority.
I fear such a court will make a historically bad decision like Dred Scott.
The GOP is dedicated to removing Roe and the ACA for example.
Remember that the Court helped to get us into a civil war in the 1800s.
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@Dave Davis
I do believe that we already have a Supreme Court with a conservative majority. It is not so-called, it actually is.
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@Andy Jay
True, but Chief Justice Roberts occasionally goes against prevailing conservative attitudes, siding with the more liberal justices to maintain a fig leaf impression that the court isn't entirely hard over to the right, such as the ACA case allowing a 5-4 decision to keep it going.
Imagine another forty something hard right justice joining the Alito/Gorsuch/Thomas/Kavanaugh team, with an eventual younger replacement for Thomas. No fig leaf, and nothing Roberts could do about it.
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@Dave Davis
>> I fear such a court will make a historically bad decision like Dred Scott.
It already has. See Citizens United.
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