The Limits Of The Law

Today the International Court of Justice, the highest court in the United Nations hierarchy, ruled by a vote of 13-2 that “the Russian Federation shall immediately suspend military operations that it commenced on 24 February 2022 in the territory of Ukraine.” (The Russian and Chinese judges dissented.) The majority opinion concluded that there was no evidence substantiating Russia’s stated reason for the invasion, which was that Ukraine was committing genocide against Russian-speaking peoples in eastern Ukraine.

Under the UN Charter, the Court’s rulings are binding on the parties, and the Court has stated that they create “binding legal obligations” on the parties. The article linked above notes, however, that Vladimir Putin is nevertheless “unlikely” to abide by the order and cease the murderous invasion of Ukraine, and the Court has no standing army it can hurl into the fray, or any other means of enforcing its ruling. It’s entirely predictable that the Russians will ignore the order and undoubtedly will issue propaganda seeking to undercut the credibility of the Court and depict the judges as stooges of the imperialist West.

Presumably everyone understood this at the outset, and the Ukrainians nevertheless thought that the effort was worth it, if only to further evidence the barbaric and lawless actions of the Putin regime. I’m not sure that the decision is a very positive thing for the ICJ, however, because it is not good for courts to issue orders that they know will never be enforced or enforceable. A record of unenforceable orders undercuts the credibility of the court and can only serve to encourage noncompliance with other orders in the future. The Russian actions in the Ukraine are so heinous that the ICJ apparently decided to go ahead and issue the order, regardless.

The situation reminds me of an incident I learned about in law school. In 1832 the U.S. Supreme Court, in Worcester v. Georgia, issued a decision about Georgia’s rights with respect to Cherokee tribal lands. President Andrew Jackson strongly disagreed with the decision and famously stated: “John Marshall (the Chief Justice of the Supreme Court) has made his decision; now let him enforce it.” Because both the President and the state of Georgia basically ignored the ruling, it had no effect, and the terrible “Trail of Tears,” in which Cherokees were forced to relocate to Oklahoma at the cost of thousands of Native American lives, was the ultimate result. It took decades for the Court’s credibility to recover to the position it now occupies, where the public outcry if an American President ignored a Supreme Court ruling would quickly make the President’s position unsustainable.

Unfortunately, Russia is not the United States, and the ICJ does not have the same implicit authority in Russia that the U.S. Supreme Court has in our country. The ICJ’s ruling today is undoubtedly correct, and it provides another reason to steadfastly oppose Vladimir Putin’s egregious activities in the Ukraine–but it will be up to history to determine whether the impact of Putin’s flouting of the order on the International Court of Justice’s credibility, and on parties’ compliance with its future orders, was worth it.

Reining In Excessive Fines

Yesterday the Supreme Court ruled that the Eighth Amendment to the U.S. Constitution — which states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” — imposes limits on the abilities of state and local governments to seize assets and property and impose financial penalties.  And the Court’s ruling applying the “excessive fines” clause of the amendment to state and local governments was a unanimous one, which is a welcome development in our era of increasingly divided politics.

The case involved an Indiana man who was arrested for selling several hundred dollars’ worth of heroin, had his $42,000 Range Rover seized as part of the process — even though the maximum fine for his crime was $10,000 — and sued to get his car back.  The Indiana Supreme Court ruled that the “excessive fines” clause of the Eighth Amendment did not apply to the states, even though the “excessive bail” and “cruel and unusual punishment” clauses have long been applied to the states.  The Supreme Court, in an opinion written by Justice Ruth Bader Ginsburg, disagreed.

The decision yesterday addresses a significant real world issue — namely, how far can states and local governments go in imposing monetary penalties and seizing property from people who violate the law . . . or, in some cases, are only accused of violating the law.  Because raising taxes isn’t popular with voters, state and local governments have increasingly looked to aggressive forfeiture practices to fund part of their operations.  Briefs filed in the Supreme Court noted that more than half of municipal and county agencies who participated in a survey said reliance on forfeiture profits was a “necessary” part of their budgets, and that, in 2017, 10 million people owed more than $50 billion in criminal fines, fees and forfeitures. And the aggressive penalties aren’t limited to drug offenses.  One brief in the Supreme Court, for example, described how a $100 ticket for a red-light violation in California results in another $390 in fees.

In holding that the excessive fines clause applies to the states and local governments, Justice Ginsberg noted that “[e]xorbitant tolls undermine other constitutional liberties,” and added:  “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies. . . . Even absent a political motive, fines may be employed in a measure out of accord with the penal goals of retribution and deterrence.”

Now that the states know that they can’t impose excessive fines, it will be up to the courts to determine whether the aggressive property forfeiture and fining practices, like the seizure of the Range Rover, are “excessive” or not.  We’ll have to see how that works out, but for now it’s nice to know that Americans have another constitutional protection against potentially overreaching governmental actions.

No DOMA Nation

Yesterday the Supreme Court struck down a key provision of the Defense of Marriage Act, a 1996 federal law that denied rights and benefits to same-sex couples, and rainbow flags flew from sea to shining sea.

The Court’s decision was one of two rulings yesterday that addressed gay marriage.  In the DOMA decision, a 5-4 majority of the Court concluded that the statutory provision violated the right to liberty and to equal protection for legally married gay couples.  The ruling means that the thousands of gay couples who are legally married under the laws of certain states will be able to take advantage of federal tax and pension rights and other benefits that are available to other married couples.  In the other ruling, the Supreme Court held that proponents of California Proposition 8, which prohibits gay marriage, lack standing to defend the law.  That ruling leaves a lower court ruling that struck down Proposition 8 intact and therefore allows California to resume with state-sanctioned same sex marriages.

The Supreme Court decisions are not the last word on the subject, because gay marriage is not legal in a majority of the states and the DOMA decision did not address a provision of that statute that provides that states are not required to recognize gay marriages performed in other states where gay marriage is legal.  Opponents of same-sex marriage say they will continue to advocate on the issue.

I’m in favor of same-sex marriage, and I’m thrilled for my gay friends whose legal marriages are now given all the rights and benefits available under federal law.  I’m also hoping that the Supreme Court’s decision helps the United States to put this issue behind us — as opposed to becoming the lightning rod on a bitterly contentious social issue, as happened with the abortion rights decision in Roe v. Wade.  It’s time for this country to stop focusing on issues that divide us, and to start focusing on how we can work together to solve our problems.

Should You Be Able To Patent Your Genes?

The Supreme Court hears cases of constitutional import that make front-page headlines, but also wrestles with issues that make you stop and think about how the world is changing.  Yesterday the Court heard argument in a case in the latter category, and the issue is whether human genes should be patentable.

The case involves the legality of a patent that one company, Myriad Genetics, holds on genes that can identify an increased risk of breast and ovarian cancers.  Myriad uses the patents to test women for mutations that can indicate risk and charges thousands of dollars — typically paid by insurance — for the tests.  Opponents of the Myriad patent, and other human genetic patents, say there is no inventive process involved and the patenting of human genes has impeded research, medical progress, and access to testing.  Myriad and its allies argue that the process of identifying and isolating the genes satisfies the inventive requirement and that disallowing patents on genes would affect billions of dollars in investments and patents on useful things like genetic tests and biotech drugs and vaccines.

At yesterday’s oral argument, the Court’s questions indicated some skepticism about the patentability of human genes and whether they really involve the inventive process that is the focus of patent rights — although lawyers will tell you that drawing conclusions from judicial questions is a risky business.

The issues are intriguing.  If we can target human genes that will allow us to detect and avoid fatal diseases like cancer, we’d like to think that such discoveries would be used for the benefit of all mankind.  At the same time, however, what companies are going to spend billions of dollars going through the laborious process of identifying those genes without some assurance that they will be able to recoup those costs, and a profit besides, through the protections afforded by patent law?   And how much invention should be needed to secure a patent, anyway?  If genes can be patented, should we all pony up the patent application fee and try to patent every gene in our bodies, just to be on the safe side?

The Court will try to answer these questions before this term ends in June.

In Line For History

Usually, we associate people camped out in lines for days with hot rock concerts, or huge basketball games, or Black Friday special sales.  In Washington, D.C., however, people have been waiting in line since Friday for seats to watch the U.S. Supreme Court.

This week, the Court will hear argument on two cases that may — and I emphasize may — resolve the constitutional status of same-sex marriage.  On Tuesday, in Hollingsworth v. Perry, the Court will address Proposition 8, a state constitutional amendment banning same-sex marriage that California voters passed in 2008.  On Wednesday, in United States v. Windsor, the Court will examine the federal Defense of Marriage Act, a 1996 statute that prevents same-sex couples from enjoying benefits, such as filing joint tax returns, that are available to “traditional” married couples.

Proponents of gay marriage hope the Court will use the cases to declare that different treatment of same-sex marriages violates the equal protection clauses of the Constitution.  As is often the case with Supreme Court cases, however, procedural issues may be decisive.  In the California case, a threshold issue is whether the conservative groups seeking to defend Proposition 8 have legal “standing” to do so, which will require the Court to consider whether the groups have a real stake in the outcome or are officious intermeddlers who won’t be personally affected by resolution of the dispute.  Another key question is which “standard of review” the Court should apply, with much tougher scrutiny being given, for example, to laws that discriminate on the basis of race than to laws that simply regulate economic activity.  The Obama Administration is urging the Court to apply a heightened level of scrutiny to laws that address gender orientation.

Lurking below are the “big picture” notions that only the Supreme Court can truly consider.  Should the Constitution be read strictly, according to “original intent” and the social mores that prevailed at the time its amendments were adopted, or is it a more flexible document that can evolve to encompass cultural changes?  If the latter approach is taken, how do you keep the Constitution from being read with such elasticity that it loses any intrinsic meaning and simply becomes whatever a majority of nine justices might declare?  And if you conclude that the Constitution does protect “gender orientation,” can you write your opinion in a way that would allow courts and legislators to draw principled distinctions between same-sex marriage and other forms of personal commitment between consenting adults — such as polygamy?  Often the Court decides cases narrowly precisely to avoid have to address these kinds of broad and difficult questions.

There’s a reason people are willing to endure days of the blustery late-March weather in Washington, D.C. to get a seat for these arguments.  This week, history will be made in the solemn Supreme Court oral argument chamber.

Silent Justice

In a loud and loquacious world, Supreme Court Justice Clarence Thomas has earned a reputation for his silence.

During oral arguments before the Supreme Court, Thomas almost never speaks.  In fact, his statements during oral argument are so rare that, when he does ask a question or make a comment, it becomes news and is covered even on overseas websites like the BBC.  That’s what happened this week, when Thomas made his first statement during an oral argument since February 22, 2006.  In short, he hadn’t spoken at an oral argument for almost seven years.  On Monday, his comment apparently was a joke about lawyers from different law schools that caused some of the other Justices to laugh.

Thomas doesn’t think he needs to ask questions during oral argument to do his job — and he’s right.  He reads the briefs submitted by the parties, votes on whether cases should be accepted for review by the Court, writes majority opinions, concurrences, and dissents, handles the other duties of a Supreme Court Justice, has developed a very consistent (and very conservative) judicial philosophy . . . and gives an occasional speech, besides.  The other Justices bombard the attorneys who argue before the Court with questions and, many legal scholars believe, pose the questions not to hear the answers, but rather to communicate with and attempt to persuade other members of the Court.  Thomas thinks that lawyers should be able to present their arguments without constant interruptions, so he stays silent during oral argument.  Who’s to say which approach is the right one?

I admire Justice Thomas for his willingness to buck the prevailing trend and follow his own approach.  I also respect anyone who, in our texting, talking, e-mailing, communication-saturated culture, somehow manages to keep his own counsel.

An Election About Something Concrete And Fundamental

I haven’t yet read the Supreme Court opinions issued on the constitutionality of the “health care reform” act.  From news reports, I understand that the 5-4 majority characterized the individual mandate as a tax and therefore within Congress’ constitutional power.

Because I haven’t read the opinions, I can’t comment on their merits.  One result of the Court’s action, however, is that the stakes for the upcoming election will be both heightened and sharpened.  Almost immediately after the ruling, I received emails from the Democratic Party and its candidates lauding the decision and the act it upheld.  From the Republican side of the aisle came commitments to repeal the statute and expressions of concern about the increasing role of government.

Since the days of the Revolutionary War, American history is full of debates about fundamental questions that were resolved through the political process and at the ballot box.  I’d rather have the focus of this year’s election be on the role of the federal government and the merits of the “health care reform” statute than on ginned-up issues like the investments made by Bain Capital when Mitt Romney worked there.

Voters now know far more about the “health care reform” statute than we did when it was being pushed through Congress in a process characterized by hastily written language, backroom deals, and votes cast by members who hadn’t even read the bill before them.  We’ve seen actual actions taken by the federal government pursuant to the statute — including the regulations that have upset the Catholic church and other religious groups — and we know the funding mechanism for the statute is properly viewed as a broad tax.

As a result, the debate to come will be far more concrete than the debate that occurred several years ago — and the voters will decide who wins that debate.  That is a good thing.

Waiting On The Court

Deep in the marbled chambers of the majestic Supreme Court building, members of the High Court and their clerks are hard at work on the opinion — or more likely, opinions — to be published when the Court decides the constitutionality of the “health care reform” legislation.  The opinion(s) will be issued within the next week or two as the Court wraps up its work for the year.

The issues swirling around President Obama’s signature legislative achievement have dropped off the public’s radar screen recently, but you can bet that they remain front and center at the White House, the Romney campaign headquarters, and on Capitol Hill.  Whether the Supreme Court upholds the statute, or strikes it down in whole or in part, its decision will be like a bomb going off in the middle of the presidential campaign.  I can’t remember another situation like this, where the Supreme Court will decide the constitutionality of major, controversial legislation — and do so only a few months before a presidential election in which the Court’s decision itself will almost certainly be an issue.

The timing of the Court’s decision will be interesting for two reasons.  First, both carefully scripted campaigns will be knocked off message, for a few days at least, and will be required to respond on the fly to the Court’s decision and the stated rationale for that decision.  The unpredictability of the Supreme Court’s decision means we might just get an honest, candid reaction from a candidate or a Congressman for a change — before the talking points get drafted and everyone adheres to the accepted party line for their side.

Second, and more important, Supreme Court opinions are serious documents written by serious people.  The Justices know their opinions will be carefully read and critiqued, for their intellectual and legal merit, immediately and for decades to come.  They will be working to make those opinions as persuasive and carefully reasoned as possible.  The opinions will address fundamental issues about the structure of our government and the extent of federal power, taking into account the language of the Constitution, the history of our republic, and the decisions of prior Courts.  They will grapple with those issues in a sober, respectful manner, with the majority and dissenting opinions acknowledging, and responding to, each other.  What a refreshing change from the shouting, bullet point blather that passes for political discourse these days!

This will be an exciting time for our country and our Constitution.  It’s another reason for us to step back, admire the foresight of the Framers, and see that our 225-year-old Constitution still works, and works well.

Who Wrote Happy Birthday?

Spring is the time of birthdays in the Webner family.  Today is the birthday of one very special person, and Happy Birthday will be sung with gusto.

Everyone knows Happy Birthday and has sung it hundreds of times — for family members, schoolmates, co-workers, and friends — but who wrote it?

The melody for Happy Birthday comes from the children’s song Good Morning to All, written in 1893 by American sisters Patty and Mildred Hill.  Patty was a school principal in Kentucky, and the song was designed to be sung by schoolchildren.  The lyrics were:  “Good morning to you, Good morning to you, Good morning, dear Children, Good Morning to All.”  It’s easy to imagine a classroom of rambunctious turn-of-the-century kids singing that song at the start of the school day.

At some point lost in the mists of time — but probably not too long after Good Morning to All was first sung — someone substituted the familiar lyrics of Happy Birthday.  The combination of lyrics and melody apparently first appeared in print in 1912.  Happy Birthday was copyrighted more than two decades later, in 1935.  The validity of its copyright has been the subject of legal commentary and even a mention in the dissenting opinion in the Supreme Court case Eldred v. Ashcroft, but the copyright issue has caused filmmakers whose movies include a birthday scene to either pay a royalty or substitute For He’s A Jolly Good Fellow instead.

Most people consider Happy Birthday to be the best known and most frequently sung song in the world.  It’s fun to belt out, too.

Balance Of Powers 101

Last week’s oral arguments before the Supreme Court about the Affordable Care Act — and the questions from Justices that suggested skepticism about the law’s constitutionality — seem to have caught some people off guard and caused them to make some very odd statements about how our government works.

Today, for example, President Obama said:  “Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”  He added:  “And I’d just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example, and I’m pretty confident that this court will recognize that and not take that step.”

I’m confident that the President — who graduated from one of the country’s best law schools — can’t possibly believe those statements, because they reflect a profound misunderstanding of the balance of powers that exists under the Constitution.  For more than two centuries, it has been well established that the Supreme Court is the ultimate arbiter of whether a law violates the Constitution.  And, since a federal statute becomes a law only if it has passed both houses of Congress and been signed by the President, declarations of unconstitutionality necessarily will occur only after a “majority of a democratically elected Congress” — and often a “strong majority” at that — has approved the law.

Indeed, the whole idea of judicial review is that the democratically elected members of Congress and the President might be swayed by the popular passions of the day, and therefore only judges appointed for life who are removed from politics should determine whether a statute contravenes the Constitution.  To be sure, it’s not a power the Supreme Court has used routinely, but over the last two centuries the Court has not hesitated to strike down statutes that are found to be unconstitutional.  The Court’s power to do so therefore is, quite literally, not “unprecedented.”

Obviously, the President hopes the Court will rule that the Affordable Care Act is constitutional and enforceable.  However, he does our system a disservice by suggesting that the Supreme Court would be overreaching if it decided to the contrary.  If the Supreme Court takes that step, it is simply exercising one of its constitutional powers — just as President Obama and Congress did in enacting the law in the first place.  That’s how our system is supposed to work.

At A Supreme Court Oral Argument

I’m glad people are paying attention to the arguments to the Supreme Court about the constitutionality of the health care law, and I think it’s great that some people waited in line for days to sit in the seats reserved for the general public.

I’ve had the privilege of watching oral argument to the Supreme Court on two occasions.  It is an awesome experience, from the long walk up the front steps and through the towering pillars to get into the building to the post-argument post mortem that begins as soon as the lawyers walk down those same front steps, debating the potential meaning of the questions posed by the Justices.  In the majestic chamber where arguments are presented, the Justices appear from behind a curtain to take their seats at the long bench, with the Chief Justice seated in the middle.  The lawyers present their positions, the members of the Court ask their probing hypotheticals — often jousting with each other in the guise of questioning the advocates — and the lawyers respond as best they can.  The entire process occurs with great dignity and solemnity, befitting the role of the highest court in the land.

After the arguments on the various legal issues presented by the health care law are concluded later this week, we’ll hear pundits talk about which side gave the better presentation, and we’ll know how the Court rules by the time its term ends in June.  For now, however, I hope people appreciate the marvelous nature of the process.  The fate of a hugely significant and hotly debated law will be decided by unelected judges based in part on oral arguments presented in measured tones in a quiet chamber that is open to all.

I wish more people went to see a Supreme Court argument when they visit Washington, D.C., because it tells you something very positive about our government and the central role of the rule of law in our country.

A Supreme Building

On my brief visit to Washington, D.C. I stopped by the Supreme Court building and took this picture of its familiar entrance on a sunny afternoon, with the flag snapping in the breeze.

If, like me, you are a lawyer, a visit to the Supreme Court building is both a pilgrimage and an inspiration.  I’m sure there are those who object to the colossal nature of the building, with its huge Greek pillars, its massive statuary, and its classical facade.  For me, however, the building aptly captures the majesty of the law and our judicial system.  The law has played, and continues to play, a monumental role in our free society, and any building that houses our Supreme Court should reflect that monumental element.  This building does.

Up To The Supremes

The U.S. Supreme Court has decided to accept one of the appeals addressing President Obama’s health care statute, and thereby has set the stage for one of the most anticipated legal rulings in years.

In its order accepting the case, the Supreme Court identified four issues for the parties to brief and set aside five-and-a-half hours for oral argument.  Five and a half hours!  It’s an extraordinary amount of time, but why not?  The issues presented are titanic and unprecedented and could have far-reaching consequences.  Can the federal government require everyone to buy insurance?  If not, should the entire statute fall?  Should the Supreme Court even decide those issues on their merits, or should it wait for the law to be fully implemented?

Many people will focus on the political impact of any Supreme Court ruling on the health care statute, but I think the legal issues are of the most interest.  In many ways, the statute tests the outer limits of Congress’ power under our Constitution — if in fact there are any limits left.  The Supreme Court may well decide that issue come June.

To All Webnerhouse Readers

I think that Bob would agree with me that one of the fun things about the family blog is that even when I am not blogging I like scrolling down through the comments that readers take the time to make. A special thanks goes out to Elroy Jones and Mike N who have made the bulk of the comments on Webnerhouse.

Our longest comment was from Mizuno Girl who took the time to make the following comment to Bob’s blog on the Supreme Court deciding whether or not the Healthcare Reform Act is or is not constitutional –

I’m a huge fan of the Healthcare Reform Act and I actually do wish that much of Obama’s healthcare policies had come to pass. You see I am an emergency room nurse and I see patients each and every day who have no access to healthcare. They attempt to use the emergency room for all sorts of things. We can help many of them, but a guy came in the other day who had a sore throat for four months and it turned out to be a tumor. Unfortunately we can’t treat a tumor in the emergency room. Of course he had no insurance and said he would have gone to the doctor much sooner had he been able to. Had he done so the tumor would have been much smaller and probably quite easy to treat.

So we see this which is disheartening and then we are required to see people who arrive complaining that their left toe has been hurting for ten minutes. I sure would love it if we could try to make healthcare more affordable and accessible for all. I am not sure why it has to be such an inflammatory issue. I mean we are supposed to be an advanced country aren’t we ? I think I would rather pay a bit more in taxes to support affordable healthcare, but I suppose I am in the minority. As Americans I know we are said to give generously to charity, but at times we sure can be selfish.

Thanks Mizuno Girl for taking the time to put down your thoughts in writing and giving us some food for thought – we very much appreciate it !

The “Health Care Reform” Law Hits The High Court

It is looking increasingly likely that Supreme Court will hear an appeal of the ever-controversial “health care reform” law, and soon.

Both sides to a lawsuit — the Department of Justice in favor of the law, and 26 states and the National Federation of Independent Businesses in opposition — have asked the Court to accept an appeal and decide whether the law should be upheld or struck down as unconstitutional.  The Supreme Court has the discretion to decline the appeal, but the fact that the appellate court declared the law unconstitutional, and the fact that both sides to the case are seeking review, should increase the chances the high court will hear the case.

Stripped of its partisan baggage, the appeal poses a fascinating legal issue:  how far does Congress’ power to regulate interstate commerce extend?  In prior cases, the Court has articulated an expansive view of that power.  However, opponents of the new law argue that this case is different because Congress — through the “individual mandate” provision that requires all citizens to buy health insurance — is for the first time assuming the power to compel unwilling citizens to engage in commerce.  Proponents of the law respond that, when it comes to health care, every living American is already affecting commerce, because those who don’t have insurance and then need health care are imposing economic burdens on the rest of us.  A Supreme Court decision on this issue would go a long way toward defining, once and for all, the full extent of Congress’ power to regulate the daily lives of Americans.

If the Supreme Court takes the appeal, it would be likely to rule in the summer of 2012 — just before a presidential election where the wisdom of the “health care reform” law is likely to be a very hot topic.  And the decision will come against the backdrop of a recent report that shows a sharp increase in health care costs, which undoubtedly will cause Republican candidates to blame the unpopular new law and redouble their attacks on it.