ARM' A GETTIN' READY
The 9 eminent enemas that make up the Supreme Court finally issued some opinions today (four in total), including a per curiam 4-page opinion on employment law that was remarkable in that one wonders why the Court the case in the first place, only to resolve it (somewhat favorably to the employee!) the way it did! In another case, freedom of religion was upheld against the "unitary executive's" attempt to encroach upon it, 8-0, no less.
More important than the cases that were decided, though, were the cases the court decided to take up on certiorari. I am still on a self-imposed media blackout (I have not gone to any news website since Feb. 10th so as to avoid inadvertently viewing the results of any Olympics event I have not yet watched - not to worry, though, I still have a rough idea of what's happened in the world since the 10th), but it didn't take consultation of a website for me to understand what case was at issue with respect to the first caption on the cert list: "Gonzales v. Carhart"
Gonzales, of course, is Attorney Genitorture. Back in 2003, President G.W. Bush signed the Partial-Birth Abortion Ban Act (an act that exceeds Congress' power under the commerce clause, under the standards enunciated by the most ardent proponents of the Act, naturally), with ten men and not one woman standing by his side for the photo-op. Immediately, suits were filed in District Courts in California, Nebraska and NY challenging the constitutionality of the Act. The suits alleged that the Act was unconstitutional because it failed to provide a health exception for the health of the mother; three years earlier; the Supreme Court held that a virtually identical law passed by the state of Nebraska (and challenged by the very same Respondent as in the present case - Dr. Leroy Carhart) was unconstitutional because, under Casey, it imposed an undue burden because it failed to provide for a health exception. The 2000 case was Stenberg v. Carhart (Stenberg was the AG of Nebraska); the Court found that the record contained sufficient medical evidence that in some (albeit not many) instances, a so-called "partial-birth" abortion (the kind of abortion that the Nebraska law wanted us to THINK it was banning, not the abortions the law actually could be read to ban - i.e. perfectly legal ones) was necessary to preserve the mother's health.
Congress, undeterred by this holding, began hearings in 2001 with an eye toward passing a federal law that bans "partial-birth" abortions (the term is Manichean and medically imprecise, just like the term "death tax" is financially imprecise, which is why Republicans love it so much). Many times, Congress understandably is confused about whether a bill it passes will pass constitutional muster, given that Supreme Court pronouncements regarding principles implicated by the bill made recently before the bill was passed seem ad hoc and contradictory (see, e.g., Garrett, Lane and Hibbs - three cases with wildly different outcomes based upon wildly similar facts - even if Congress WANTED to pass anti-discrimination laws permitting monetary relief to be exacted from a state, given the amorphously variant holdings of these three cases, why should it bother, in a sense?)
However, there are some times when Congress, which is presumed to be aware of what the Supreme Court has said, cannot possibly be confused as to the import of an opinion. In 1989, the Supreme Court held, 5-4, that a Texas statute prohibiting burning of the flag other than in a manner prescribed by law, was an unconstitutional violation of freedom of speech. So the idiot yabo crowd in Congress, within months, passed a federal anti fag-burning (excuse me, flag-burning - we're talking 1990 here) law. The only difference between the Texas law and the federal law was that the federal law prohibited flag burning that "brought the flag into ridicule and disgrace." The Court, 5-4, found that the two laws were essentially the same - both were content-oriented and did not survive either intermediate or strict scrutiny.
Congress, in the present case, has acted with even bolder inanity. In 2001, it heard testimony to the effect of this: in some cases, "partial-birth abortion" is medically necessary. However, when Congress passed the bill, it, by fiat, declared, in the "findings" portion preceding the actual text, that the procedure was never necessary. This is legislative ledgerdemain at its finest.
Three district courts (3 judges) struck down the law. The Courts of Appeals covering each of those courts struck it down. In total, 8 Courts of Appeals judges said the law was unconstitutional; only one did not. 11-1. Each judge that struck down the law made a point of noting that Congress cannot choose to ignore findings made in the context of legislative hearings, a previous Supreme Court litigation, findings that have already been accepted by a state supreme court, a federal court of appeals, and the Supreme Court of the United States - for while, as the old saying goes, "every man is entitled to his own opinion, no man is entitled to his own facts."
Yeah, right. Tell it to the judge - or judges, I should say. Just five will do.
More important than the cases that were decided, though, were the cases the court decided to take up on certiorari. I am still on a self-imposed media blackout (I have not gone to any news website since Feb. 10th so as to avoid inadvertently viewing the results of any Olympics event I have not yet watched - not to worry, though, I still have a rough idea of what's happened in the world since the 10th), but it didn't take consultation of a website for me to understand what case was at issue with respect to the first caption on the cert list: "Gonzales v. Carhart"
Gonzales, of course, is Attorney Genitorture. Back in 2003, President G.W. Bush signed the Partial-Birth Abortion Ban Act (an act that exceeds Congress' power under the commerce clause, under the standards enunciated by the most ardent proponents of the Act, naturally), with ten men and not one woman standing by his side for the photo-op. Immediately, suits were filed in District Courts in California, Nebraska and NY challenging the constitutionality of the Act. The suits alleged that the Act was unconstitutional because it failed to provide a health exception for the health of the mother; three years earlier; the Supreme Court held that a virtually identical law passed by the state of Nebraska (and challenged by the very same Respondent as in the present case - Dr. Leroy Carhart) was unconstitutional because, under Casey, it imposed an undue burden because it failed to provide for a health exception. The 2000 case was Stenberg v. Carhart (Stenberg was the AG of Nebraska); the Court found that the record contained sufficient medical evidence that in some (albeit not many) instances, a so-called "partial-birth" abortion (the kind of abortion that the Nebraska law wanted us to THINK it was banning, not the abortions the law actually could be read to ban - i.e. perfectly legal ones) was necessary to preserve the mother's health.
Congress, undeterred by this holding, began hearings in 2001 with an eye toward passing a federal law that bans "partial-birth" abortions (the term is Manichean and medically imprecise, just like the term "death tax" is financially imprecise, which is why Republicans love it so much). Many times, Congress understandably is confused about whether a bill it passes will pass constitutional muster, given that Supreme Court pronouncements regarding principles implicated by the bill made recently before the bill was passed seem ad hoc and contradictory (see, e.g., Garrett, Lane and Hibbs - three cases with wildly different outcomes based upon wildly similar facts - even if Congress WANTED to pass anti-discrimination laws permitting monetary relief to be exacted from a state, given the amorphously variant holdings of these three cases, why should it bother, in a sense?)
However, there are some times when Congress, which is presumed to be aware of what the Supreme Court has said, cannot possibly be confused as to the import of an opinion. In 1989, the Supreme Court held, 5-4, that a Texas statute prohibiting burning of the flag other than in a manner prescribed by law, was an unconstitutional violation of freedom of speech. So the idiot yabo crowd in Congress, within months, passed a federal anti fag-burning (excuse me, flag-burning - we're talking 1990 here) law. The only difference between the Texas law and the federal law was that the federal law prohibited flag burning that "brought the flag into ridicule and disgrace." The Court, 5-4, found that the two laws were essentially the same - both were content-oriented and did not survive either intermediate or strict scrutiny.
Congress, in the present case, has acted with even bolder inanity. In 2001, it heard testimony to the effect of this: in some cases, "partial-birth abortion" is medically necessary. However, when Congress passed the bill, it, by fiat, declared, in the "findings" portion preceding the actual text, that the procedure was never necessary. This is legislative ledgerdemain at its finest.
Three district courts (3 judges) struck down the law. The Courts of Appeals covering each of those courts struck it down. In total, 8 Courts of Appeals judges said the law was unconstitutional; only one did not. 11-1. Each judge that struck down the law made a point of noting that Congress cannot choose to ignore findings made in the context of legislative hearings, a previous Supreme Court litigation, findings that have already been accepted by a state supreme court, a federal court of appeals, and the Supreme Court of the United States - for while, as the old saying goes, "every man is entitled to his own opinion, no man is entitled to his own facts."
Yeah, right. Tell it to the judge - or judges, I should say. Just five will do.
posted by EnterCenter at 10:04 AM
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