Legal Times
During the past year, practitioners, academics and former state chief justices have weighed in on a range of legal issues in these pages. The U.S. Supreme Court's ruling on the Affordable Care Act figured prominently, as did other hot-button issues now before the court, such as same-sex marriage, affirmative action and the Voting Rights Act. Other topics tackled included the election and the state of the profession. Here are some highlights.
SUPREME COURT VOTING RIGHTS ACT
ILYA SHAPIRO
Senior fellow in constitutional studies, The Cato Institute (February 27)
The U.S. Supreme Court was surely correct last month when it unanimously overturned the Texas electoral maps a San Antonio federal district court drew because that court did not use the "appropriate standards" in drawing them.…Fair enough, but this reasonable-sounding decision belies larger issues: The Voting Rights Act has served its purpose but is now outmoded and unworkable — and is thus itself now unconstitutional.…
Section 5 was a valuable tool in the fight against systemic disenfranchisement, but it now facilitates the very discrimination it was designed to prevent.…The law, most recently renewed in 2006 for another 25 years, is based on deeply flawed assumptions and outdated statistical triggers, and it flies in the face of the 15th Amendment's requirement that all voters be treated equally.
SAME-SEX MARRIAGE
ERWIN CHEMERINSKY
Dean and distinguished professor of law, The University of California, Irvine School of Law (March 5)
Justice Anthony Kennedy faces a simple choice with profound consequences: When the U.S. Supreme Court considers the issue of marriage equality for gays and lesbians does he want to write the next Plessy v. Ferguson or the next Brown v. Board of Education?…[E]veryone expects that Kennedy will be the deciding vote.…
In light of this, Kennedy has to know that a Supreme Court opinion rejecting marriage equality will be regarded in hindsight as misguided as its infamous ruling in Bowers v. Hardwick, which held that states could criminally prohibit private adult consensual homosexual activity. Kennedy wrote the opinion in Lawrence v. Texas, overruling Bowers. In fact, there have been only two Supreme Court decisions in history advancing rights for gays and lesbians — Romer v. Evans in 1996 was the other — and Anthony Kennedy authored the majority opinions in both.
AFFORDABLE CARE ACT
DAVID ORENTLICHER
Samuel R. Rosen Professor of Law, Indiana University Robert H. McKinney School of Law — Indianapolis; adjunct professor of medicine, Indiana School of Medicine, (July 2)
It would have been ironic indeed if the Supreme Court had struck down the individual mandate to purchase health care. Opponents of the mandate objected to what they saw as an unjustified effort by Congress to expand the power of the federal government. But in fact, the Affordable Care Act's mandate represents a weaker assertion of federal power than occurred when Congress enacted Medicare in 1965. …
In the end, Chief Justice John Roberts Jr. was true to his understanding of the Supreme Court's role at his confirmation hearings. With his decisive vote, the court rejected the invitation to roll back 70 years of constitutional precedent. Instead, the opinion reflects the more modest role for the court that Roberts described upon his nomination in 2005.
ROBERT MUISE
Co-founder and senior counsel, American Freedom Law Center (July 2)
This is a shocking decision, one that should concern all Americans. Prior to today, it was absolutely clear that there were structural limits upon the federal government's power to regulate private conduct. As the dissent points out, today's decision makes "mere breathing in and out" the basis for federal regulation and thus grants the federal government the power to regulate virtually all spheres of human activity. This is a sad day for America and for our constitutional republic.
SUPREME COURT LEAKS
TODD C. PEPPERS
Henry H. and Trudye H. Fowler Professor of Public Affairs, Roanoke College, and visiting professor of law, Washington and Lee University School of Law (August 20)
In the weeks after the U.S. Supreme Court announced its ruling in the "Obamacare" case, as much attention was paid to the leaks surrounding the decision as to the decision itself. In a report that stunned official Washington, CBS reporter Jan Crawford revealed confidential information about the internal deliberations of the justices regarding the pending case — information that detailed not only Chief Justice John Roberts Jr.'s last-minute decision to join his liberal colleagues in upholding the constitutionality of the legislation, but also the lobbying efforts by the conservative justices to win back the chief justice's vote.…
Subscribe to The National Law Journal
