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Archive for the ‘judiciary’ Category

This has not been a good Supreme Court term for the Obama administration. Damon Root (Reason) has a quick and delightful overview of some of the key decisions. The most recent defeat—the Hobby Lobby decision—can be viewed as a loss for the administration, but it may provide some political benefits with respect to fundraising and continuing the “war on women” meme, as Byron Tau (Politico) explains:

Shortly after the court’s 5-4 decision in Burwell v. Hobby Lobby, which said for-profit employers with religious objections can opt out of providing contraception coverage under Obamacare, the liberal fundraising emails went flying. Democratic candidates and liberal groups were seeking to collect scores of new email addresses and bank last-minute cash contributions in advance of the monthly FEC deadline at midnight Monday.

As Megan McArdle notes in the conclusion to her interesting discussion of the decision (Bloombergview):

Presumably, the administration hates this ruling–but at the same time, it has to love the passion that it has engendered. This is going to be fundraising gold for Democrats for the next two years. In a politics that cares more about symbolism than substance, that too was predictable. And it’s hard to avoid the conclusion that this was the prediction that mattered more. Politics may not be rational, but it still has its own remorseless logic.

Jeremy Peters and Michael Shear (New York Times) argue that this was also a decision that the conservative movement can run with: “The ruling comes as social conservatives have suffered setbacks on another high-profile social issue, same-sex marriage, and leaders predicted Monday’s decision would infuse Republicans with energy as they fight to take control of the Senate this year and reclaim the White House in 2016.” Their analysis suggests that the decision could contribute to a revivification of the culture wars that defined much of the politics of the past few decades.

I hope that Peters and Shear are wrong. Any efforts of Republicans and Democrats to reignite the tiresome culture wars will threaten to draw attention away from the far more pressing issues of late, e.g., the ongoing growth of executive power, long-term fiscal instability, the failure of immigration policy, targeted killings abroad, and the expansive violation of civil liberties in the name of national security. These are the kinds of issues that sizable parts of both parties and the public should agree are of sufficient importance to avoid any of the short-term tactical appeals offered by the culture wars.

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From the former head of the Harvard Law Review and sometimes professor of constitutional law (via CNN transcript):

Ultimately, I’m 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.

And I’d just remind conservative commentators that for years what we’ve 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 – this court will recognize that and not take that step.

I don’t know what I find more interesting: (1) the belief that the Court overturning a law would be unprecedented; or (2) the attack on the justices as “an unelected group of people.”

Perhaps the next step will be the Judicial Procedures Reform Bill of 1937 2013.

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In the latest issue, The Economist gives a startling look on the dire situation of courts in America. Budget cuts and, at the federal level, political obstruction have fostered delays and case backlogs. Some of the dire consequences:

  • In California, uncontested divorces now take a year to obtain.
  • One circuit court in Georgia has stopped civil adjudication (traffic offenses, etc.) altogether.
  • Courts in 14 states are closed on some work days.
  • One municipal court in Ohio stopped accepting new cases because it could not afford to buy paper.
  • New York judges’ pay has been frozen for a dozen years, even as their caseload has increased by 30%.
  • In Florida in 2009, according to the Washington Economics Group, the backlog in civil courts is costing the state some $9.8 billion in GDP a year.

And so on.

As a libertarian, I believe that the judicial function is a core function of government, and that government should fund it properly and do adjudication well. Judges should be highly paid and courthouses well staffed and efficiently run. Private arbitration is all well and good, but arbitration contracts ultimately depend on enforcement by the public courts. States should be increasing, not cutting, judicial budgets, even if they have to raise taxes or cut more severely other programs in order to do so.

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