Tag Archives: Anthony Kennedy

Give the President What He Wants—-and Give It To Him Hard!

English: The United States Supreme Court, the ...

English: The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. (Photo credit: Wikipedia)

The decision by the US Supreme Court upholding the Affordable Care Act mandate as a tax was a stunning surprise to many.  Probably no one was more surprised that President Obama.  He has seemed apprehensive that his signature legislative accomplishment was about to be thrown out.

What was also surprising was that the swing vote in the 5-4 decision was Chief Justice John Roberts.  Most speculation had focused on Justice Anthony Kennedy.  And equally surprising was the realization that Roberts could have taken then entire health care act down 5-4 had he sided with the conservatives who, in their dissents, said flatly that the mandate was unconstitutional and the rest of the act had to fall with it as an unconstitutionally broad overreach in the commerce clause.

But why did Chief Justice Roberts side with the President in this case?

And did the Chief Justice just pin the target on the President’s chest instead of having it pinned to his own back?

The beauty of this decision is the ruthless efficiency with which the Chief Justice has made the Affordable Care Act the central political issues in the November 2012 election instead of taking the burden on the back of the Court for undermining the President and Congress.  The decision protects the Supreme Court from being dragged into the political debate over the wisdom of the law while forcing the proponents of the law to defend it all over again in the court of public opinion.

The decision of the Chief Justice seems to follow the advice from two of the three Appeals Court decisions that were taken on review.

The 6th Circuit Court of Appeals in Cincinnati and the D.C. circuit Court of Appeals said in their decisions that while the law is intrusive it is within Congress’s power to enact.  The Washington Post quoted from the opinion of Senior Judge Laurence Silberman, a Ronald Reagan appointee, who said:

“It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.”

In deciding the case by upholding the law as a tax and limiting Congress’ power under the commerce clause, Chief Justice Roberts has sidestepped the political debate that will rage and fixed the accountability for the political wisdom of the act where it belongs—on the President and Congress.

‘GET OUT OF JAIL’ CARD: Brown vs Plata

United States criminal justice system flowchart.

American Criminal Justice System Work Flow via Wikipedia

In a 5-4 decision in Brown versus Plata the US Supreme Court upheld a lower court injunction ordering California to release about 46,000 convicted felons over the next two years to relieve overcrowding.

The decision split the court along its traditional liberal versus conservative lines with Justice Anthony Kennedy, often the swing vote between these blocks deciding in favor of the proposed sweeping release of prisoners.  The conservative justices lead by Anton Scalia were scathing in their criticism of the majority decision saying the courts had overstepped their power and put themselves into a role of supervising the California prison system that was beyond their skill and authority and having failed at that they now propose to solve California’s overcrowding problem by letting the criminals out of jail.

That California prisons are a broken institution is not at issue.  The prison system has been swamped by laws like three strikes, determinate sentencing and mandatory minimums aggressively incarcerating people in response to public outcries over violence, drugs and gangs.

But this is not just a California problem.  The Pew Center on the States reports that more than one in every 100 adults is now confined in an American jail or prison.  The Pew Public Safety Performance Project tells us what we know all to painfully that soaring costs of failed criminal justice systems are hitting the states hard when they can least afford it and worse those policies and systems are not solving the problem of crime, violence, drugs and gangs in any meaningful way.

But there is a worse demographic outcome even than these.  We are wasting a generation of people who could have been productive members of society. One in 30 men between the ages of 20 and 34 is behind bars, for black males that number is one in nine. Men statistically are 10 times more likely to be in jail, but the rate of women being jailed is rising much faster than for men with the rate for black women in their 30s now 1-in- 100. Overall, 1 in 53 people in their 20s is in jail, and 1 in 837 of those 55 and older is in jail or still in jail.

The other problem is politics.  Demand for action against crime is an easy way for politicians to pander to the voters, but the soaring costs of keeping all these people in jail longer and turning them out more hardened criminals isn’t working.   The prison guards union is very powerful in California politics and often has been an obstacle to changes in the prison system.   The problems facing California prisons today are not new but that does not make them easier to solve.

The question is whether releasing 46,000 felons over the next two years to comply with the court order will do anything to solve the fundamental problem causing this high incarceration rate as a consequence of a failed set of social policies, family relationships, and the corrosive influence of drugs, gangs and guns in our civic life.

We know the answer to that question don’t we?  We just don’t know how to solve the real problems.