Scalia’s death raises the stakes but also the question of reforms

The presidential election campaign all of a sudden got more contentious, more exciting, and more important with the death of Supreme Court Justice Antonin Scalia, the leading conservative on the Court.

The voters on November 8 will now decide not only who occupies the White House after President Obama, and who controls the U.S. Congress, but also who, conservatives or liberals, will control the third branch of the American political system, the Supreme Court.

With Scalia gone, the Court is tied, 4 – 4, between conservative and liberal justices. An Obama appointment would almost certainly swing the Court to a liberal majority and, for the first time since 1972, the justices appointed by Democratic presidents would outnumber those appointed by Republican presidents. The change would be monumental.

The Republicans in the Senate led by majority leader Mitch McConnell have instantly made it clear that they have no intention to consider an Obama nominee, no what who that is. The decision to appoint Scalia’s replacement should be made by the next president. But Obama is not elected to a three-year but to a four-year term. He has almost a year left in office and he has, rightly, declared that he intends to nominate a new justice. So we are in for a big fight, a complicating, new factor in an election campaign already fraught with uncertainty and tension.

McConnell, who famously said during Obama’s first term that his primary political goal was to make sure that Obama was not reelected now wants to deny the president, who has already appointed two new high court justices, the chance to appoint a third. McConnell’s stern “no” could have serious election implications for the Republicans and their goal to keep their Senate majority, as NYT’s Nate Cohn outlines. We’ll see how this plays out.

The death of Scalia is also an important reminder of how totally unpredictable the system of appointing Supreme Court justices is. It’s time to change what’s been, rightly, called an undemocratic system by doing away with life time appointments and create more orderly nomination procedures with term limits and a retirement age. In Minnesota, to which I presently spend a lot of attention, the retirement age for the state’s highest court is 70. That’s a bit young, maybe, but why not 75? And why not a 20-year term limit? Or both?

Sadly, such reforms are seldom part of the American political dialogue. They should be, particularly as the politicization of the Supreme Court shows no signs of abating.


Yes, it was a remarkable week for Obama — and now on to gun control!

It was a remarkable week for President Obama, as the New Yorker’s David Remnick writes so eloquently: “What a series of days in American life, full of savage mayhem, uncommon forgiveness, resistance to forgiveness, furious debate, mourning, and, finally, justice and grace.”

Indeed, it was a remarkable week for America, capped by Obama’s eulogy over the victims at the AME Church in Charleston, South Carolina. It’s a must to see and to listen to, for all American. So go ahead!

Now, let’s now hope the Confederate flag really does come down from the South Carolina State House, and everywhere else where it might fly. And let’s hope the discussion about the Affordable Care Act and same-sex marriage is over. Because it is done. Finished. Let’s move on!

Sadly, however, most Republicans, including the “clown bus” of presidential candidates, seem reluctant to do so, holding on to something that has passed them by. That doesn’t seem to be a  winning strategy, and it is disappointing.

And let’s hope the Democrats, going against their own President on the Asian trade bill, will come to their senses. I come from a country ruled by Social Democracy for decades and where everyone belongs to a union. Still, it is a country that firmly believes in international trade, in an open world, in the globalization that we are all experiencing. There is no going back here either, so how could Nancy Pelosi and the great majority of the other Democrats go so wrong? It is not a winning strategy for America, and it is, also, disappointing.

Remnick’s article talks about Obama’s “resolve.” He is still the President for another year and half, so let’s hope he uses that remaining time to move forward on gun control. The curse of guns in this country must come to an end. Let’s hope.

Will President Obama finally take on the gun lobby?

”We’ll see what happens. Obama still has to do something other than speak”, writes Amy Davidsons today on her blog ”Close Read” in The New Yorker.  Exactly!

ObamainNewtownBut President Obama’s speech last night to the grieving citizens of Newtown, Connecticut, was not like his speeches in Tucson, Arizona; Aurora, Colorado; or Fort Hood, Texas — scenes of previous mass killings during his first term as president – it went further, maybe even a lot further. And it had a different tone, more impatient, sadder, but also more full of resolve, and — more political.

We can’t tolerate this any more. These tragedies must end. And to end them, we must change,”  he said and promised something he had not previously promised during his four years in the White House:

 ”In the coming weeks, I will use whatever power this office holds to engage my fellow citizens — from law enforcement to mental health professionals to parents and educators — in an effort aimed at preventing more tragedies like this. Because what choice do we have? We can’t accept events like this as routine. Are we really prepared to say that we’re powerless in the face of such carnage, that the politics are too hard? Are we prepared to say that such violence visited on our children year after year after year is somehow the price of our freedom?”

These sentences have resulted in the new hope that Obama, for the first time — finally, is ready to take on America’s culture of weapons and the country’s laws on weapons, or lack of laws. Can the tragedy in Newtown become the ”the tipping point?” We don’t know, but the pressures on the president to do something and fight for what he seems to believe in — to fight the “good fight” — even if that fight does not produce a victory against the gun lobby and its many supporters in Congress, have increased rapidly and markedly since Newtown.

What he can propose is well illustrated on the Washington Post’s “Wonkblog.” But the fight won’t be easy, regardless of strategy and proposals. There are no simple solutions, because the fight concerns a key issue for the American society. It’s about the “god Gun,”  as the historian Garry Wills writes on the New York Review of Books’ blog, which:

  • Has the power to destroy the reasoning process.
  • Has the power to turn all our politicians as a class into invertebrate and mute attendants at the shrine.
  • Has the power to distort our constitutional thinking. It says that the right to “bear arms,” a military term, gives anyone, anywhere in our country, the power to mow down civilians with military weapons. Even the Supreme Court has been cowed, reversing its own long history of recognizing that the Second Amendment applied to militias. Now the court feels bound to guarantee that any every madman can indulge his “religion” of slaughter.

Obama and Romney speak after Supreme Court ruling

President Obama and Mitt Romney both made statements after the Supreme Court’s ruling earlier today on the President’s health care reform.

Here is Obama’s statement:

Here is Romney’s statement:

The health care law is going to be a big issue, to say the least, in the remaining four months of the presidential election campaign.

Supreme Court hands Obama big health care victory

U.S. Supreme Court today presented President Obama with an historic victory when it declared his health care reform constitutional.

The victory came with smallest possible majority, 5 votes to 4, and it came, highly sensationally, by the very conservative Chief Justice John Roberts upholding the law when he sided with the four liberal justices. Usually, the role as the swing vote is played by Justice Anthony Kennedy, but this time Kennedy went hard against health care law and joined Samuel Alito, Antonin Scalia, and Clarence Thomas in the minority.

When the decision came down this morning, it quickly became clear that the major issue in the law– so-called individual mandate , i.e., that everyone must buy health insurance or pay a fine, was constitutional in that the mandate can be regarded as a kind of a tax, and Congress, of course, has the right to impose new taxes.

While the Democrats were jubilant, the Republicans, who were expecting a “no” from the Court, were deeply disappointed and the House Republican majority immediately declared to continue the fight to repeal the health care law. It remains to be seen how the Supreme Court’s decision will affect the presidential election in November, although the ruling seems to a big boost for Obama, and the Democrats, in general. A ‘no’ in the Supreme Court would have meant an enormous loss of prestige for Obama from which it would have been very difficult to recover.

The Supreme Court ruling is also a victory for America, the only major Western democracy without universal health coverage for its citizens. Obama’s health care reform does not institute universal coverage, but 30 million more American will now have health insurance so it constitutes a major step towards health insurance and health care for all Americans.

Here is the Supreme Court ruling with the warning that it is long, almost 200 pages!

Supreme Court decides fate of Obama’s health care reform

An expected decision in June by the U.S. Supreme Court will decide the fate of the Obama Administration’s health care reform, the Affordable Care Act.

All major issues in America in the end reach the country’s highest court. So the fact that the Supreme Court today decided to take the case was no surprise. The Obama Administration wanted it, wanted to have the final arbiter decide the law’s fate, and wanted certainty in order to move forward.

“We know the Affordable Care Act is constitutional and are confident the Supreme Court will agree,” said a White House statement.

But no one today dared to say with certainty what and how the nine justices on the Supreme Court will decide. In any case, a big battle is awaiting about the balance of power in the American political system, the extent of federal power, and the reach of Congress’ powers.

The June decision will come in the middle of the run-up to the presidential election in November. Whatever the outcome in the Supreme Court, its decision will be of great importance for the outcome of the election. A victory for reform, i.e., that it is consistent with the Constitution, will undoubtedly strengthen Obama and his chances in the election, while a victory for those who believe that reform violates the Constitution will be seen as a major setback for the president and greatly impair his re-election chances.

So much is at stake.

Lyle Denniston, veteran Supreme Court reporter, describes the thorny legal and constitutional problems on the SCOTUS blog and calls that which will now take place in the Supreme Court “an historic constitutional confrontation over federal power.”

The New York Times’ legal correspondent Adam Liptak wonders in today’s paper about how far the federal government’s power stretches and points to the many conflicting rulings in the lower courts that transcend all partisan political borders.

Obama’s health care reform gets encouraging support

America’s political system is unique in that many of its major issues are decided by the courts and often, ultimately, by the Supreme Court.

One of the biggest questions so far during President Obama’s two years in the White House has been his health care reform, to which the Republicans are strongly opposed. This highly, and most unfortunately, politicized issue now winds its way through the court system, ending up, most likely, with the nine in the Supreme Court.

The resistance to the law is based on its individual mandate, which opponents say is unconstitutional. In the lower courts so far, three judges, all Democrats, have said that the law is consistent with the Constitution while the other two, both Republicans, say the opposite.

This week, the U.S. Court of Appeals in Cincinnati, Ohio, handed the Obama Administration a narrow but unexpected and encouraging victory when it said that the Patient Protection and Affordable Care Act is consistent with the Constitution. Although the three judge panel was not unanimous, reform advocates rejoiced in the fact that one of the two judges who gave the law its support was a highly respected conservative judge, appointed by President George W. Bush. It was the first time a federal judge, appointed by a Republican president, declared the law constitutional.

Two, perhaps three other federal appellate courts are expected to issue verdicts this year on the constitutionality of the health care law, and then, maybe, the Supreme Court will take the case.

It’s sad that it has had to come down to this for this law, which takes a giant step towards recognizing something with all other Western democracies have long recognized, that health care for all is a fundamental right of each citizen. Let’s hope it prevails over these frivolous challanges. The health care law is long overdue for America.

“The Death of Roe v. Wade”

Slate’s excellent legal writer Dahlia Lithwick’s article “The Death of Roe v. Wade” is both interesting and frightening.

The famous and, for many, infamous Supreme Court decision from 1973 approving the right to abortion has long been an integral part of the American debate. It is praised and criticized and continues to play a leading role in every election campaign: “pro-choice” vs. “pro-life.”

Lithwick’s take is that Roe v. Wade is, in fact, already dead. It is no longer, in reality, the law of the land, even though no one, neither supporters nor opponents, say so out loud. She points to the many hundreds of new laws and regulations in the States all of which restrict abortion rights. Most of them are illegal, but the abortion opponents ignore this and continue to chip away at Roe v. Wade.

However, to pick a legal fight with all these new laws and measures is risky, according to abortion supporters, for what happens if this legal battle ends up in the U.S. Supreme Court, where the Court’s conservative majority could overturn Roe v. Wade? Is that risk worth taking?

Free speech upheld by Supreme Court

How would you have voted in the recent Supreme Court decision in the case between a grieving father and a church, whose hateful members regularly picket funerals and memorial services around the country – all in the name of their crusade against gays and lesbians in America.

“God hates fags” and “Thank God for dead soldiers” said some of their signs, reflecting their belief that America is being punished for tolerating homosexuality.     

For the Supreme Court  it seemed like an easy decision when it this week upheld the church’s right to use its vitriolic language during its members’ demonstrations, citing the right to free speech in the First Amendment of the U.S. Constitution.  It did so almost unanimously – only one of the court’s most conservative justices, Samuel Alito, dissented, saying that in this case the hateful verbal attacks by the church members violated the father’s right of privacy when burying his son, who had died in Iraq.

The case had reached the Supreme Court after the father had sued to church. The father, after losing, said that the eight justices had no more sense than a goat.

Is there a limit to free speech in America?  When it comes to this country’s public debate, the Supreme Court seems to answer that question with a “no,” in spite of the political differences on the Court and in spite of its obvious sympathies towards the father.   There was nothing illegal in the church’s action, it said. The demonstrators kept the lawful distance to the funeral, or about 1,000 feet, and they engaged in a debate through their signs and placards on public issues, such as homosexuality and gay rights.

It was the second verdict in a relatively short time that the Court had sided with free speech. Then, eight justices, again with Alito dissenting, declared that a law forbidding video films about extreme cruelty towards animals violated the first amendment on free speech.

Speech can inflict great pain, said Chief Justice John G. Roberts, but we “cannot react to that pain by punishing the speaker.”   Free speech, he added, protects “even hurtful speech on public issues to ensure that we do not stifle public debate.”     

The court’s decision in Snyder v. Phelps was correct, many seemed to say afterwards, for it continued to protect one of America’s most precious rights, freedom of speech.

The legal battle over healthcare reform is heating up

When Americans have problems, they get a lawyer and go to court. Everyone is sued, or, at least, everyone threatens to sue everyone, and often about the smallest of things.
The American system of separation of powers between the executive, legislative and judicial powers makes it unique in comparison to Europe. The result is that many of the country’s crucial issues, such as racial segregation in schools, the right for a woman to have an abortion or how election campaigns should be financed, are not finally determined by the president or Congress, but through the judicial process, from the lower bodies up to the nine members the Supreme Court.
Now, a momentous legal and constitutional battle looms. It is about President Obama’s healthcare reform that was approved by Congress in March last year. It’s a battle not easily understood by Europeans where every citizen is guaranteed healthcare. They say: of course, every American should be entitled to health care and health insurance, without exceptions. They also wonder about the role of the judiciary and the Supreme Court and the central position of the U.S. Constitution in the American political system.
“Obamacare,” as Republicans and reform opponents condescendingly call the new law, has certainly divided America. About as many Americans support the reform as oppose it, at least if you talk about the new law in its entirety. However, some of it went into force at the start of this year and many of these measures have proved popular – lower drug costs for retirees, tax breaks for small businesses seeking health insurance for their employees, children up to age 26 can now remain insured under their parents’ health insurance, no child can no longer be denied health insurance because they already sick – so called pre-existing condition, and no person can get his/her insurance revoked if falling ill.
The new Republican majority in the House of Representatives has already voted to scrap the entire healthcare law. The Republicans in the Senate tried the same thing, but the Democratic majority prevented that from happening. Obama and the Democrats have said they are willing to take a look at individual sections of the new health care law to see if these can be improved, but they will not touch the whole law as such. For the moment, at least, it seems that the fight over the healthcare law in Congress has reached a stalemate
It is here, where the legislative process seemed to have reached an impasse, that that the focus has turned to the courts. In a series of legal maneuvers opponents of the healthcare law now seek to have it declared unconstitutional.
Twenty six attorney generals – all of them Republicans — are suing the Obama administration. Their goal is for the U.S. Supreme Court to find the new law unconstitutional. In addition, four federal judges in the states of Virginia, Michigan and Florida have expressed their opinion on the healthcare law. Two of them, both Democrats, have said that the law is consistent with the Constitution. The other two, both Republicans, had objections and one said that the entire law is unconstitutional.
For the opponents, the central argument has focused on the fact that, starting in 2014, everyone must buy health insurance. Congress does not have the power to order such a thing. No one can be forced to do this, they argue. But proponents of the new law say that it is no different from the fact that people have to buy car insurance or home insurance. Congress has this power. Choosing not to participate will make the system unfair and eventually so expensive that nobody will be able to afford insurance.
Much of the present debate is now focused on the date when the healthcare law will reach the Supreme Court. That it will reach the highest court seems a foregone conclusion, although no one knows when that will happen . One year? Two years?
Meanwhile, legal experts on all sides are lining up, pro and con. In recent articles in the New York Times and the New York Review of Books, Harvard law professor, Laurence Tribe, and Georgetown University law professor, David Cole, both regarded as liberals, are surprisingly optimistic about the Supreme Court’s future decision on the healthcare law. Both argue that the law is based on well-established praxis and that there are enough precedents for the Nine on the Court, in spite of their ideological differences, to uphold the healthcare law and thereby declare it consistent with the U.S. Constitution.
We’ll see if they are right when the time comes. If so, it will be a decisive step for America in its gradual transition to a country where everyone has the right to health insurance. If not, it’s back to square one.