At the University of Chicago Law School in the 1960s, my constitutional law professor was Phil Kurland, a Buddha-like figure who clerked for famous Supreme Court Justice Felix Frankfurter. Kurland never was appointed to the Supreme Court himself, but he managed to set himself up as the oracle of the Supreme Court when he edited The Supreme Court Review, which analyzed critically the Supremes' decisions each year, after the Court's term ended in late June.
Kurland is long gone, but he was succeeded as Chicago's constitutional law professors by current Justice Antonin Scalia and future President Barack Obama, among others. As the student in Kurland's class who got the highest grade, I feel that it is appropriate for me to review some of the decisions of the Supreme Court for this term, even those which have not been decided yet.
ZIVOTOFSKY V KERRY. On June 8, the Supreme Court decided, by a 6-3 vote, to strike down a 2002 law that would have allowed American parents of children born in Jerusalem to obtain passports stating that the children were born in Israel. President Bush refused to enforce this law, because it "impermissibly interferes with the president's constitutional authority to conduct the nation's foreign affairs". President Obama, not surprisingly, agreed, and the case reached the Supremes. Justice Anthony Kennedy, often a swing vote on the Court, wrote the majority opinion, which has much broader import than just for this passport case:
"The president has the sole power to negotiate treaties, and the Senate may not conclude or ratify a treaty without presidential action. Congress, by contrast, has no constitutional power that would enable it to engage in diplomatic relations with a foreign power.
This decision strongly undercuts the logic of the 47 "traitor" Republican Senators who signed a letter recently to Iran's leaders regarding the nuclear weapons deal currently being negotiated, stating: "It has come to our attention, that you [Iran's leaders] may not fully understand our constitutional system". See my LAProgressive article on March 11, 2015 entitled "47 Traitors Undermine the President".
KING V BURWELL. Awaiting decision by the Court before July 1 is this case, which will decide whether or not Americans will retain or lose subsidies for Obamacare coverage depending on what kind of marketplace, state or federal, they used to buy their insurance. The case turns on the meaning and effect of these words in the Obamacare legislation, "through an Exchange established by a State".
If the Supremes decide that these words strictly mean that where states refused to create insurance exchanges there can be no subsidies, more than six million Americans who rely on these subsidies in 37 states will lose their health insurance. Many of these six million Americans are also voters, and the GOP (who have voted 58 times to repeal Obamacare) will take the blame for this disaster. Most of the states affected are in GOP states in the Rocky Mountains, the Midwest, and the South.
President Obama, putting on his constitutional law professor hat, has opined that:
"This should be an easy case. Frankly it should't have even been taken up… it's important for us to go ahead and assume that the Supreme Court is going to do what most legal scholars who have looked at this would expect them to. I'm optimistic that the Supreme Court will play it straight."
Most Court observers expect a 6-3 decision upholding the subsidies in those 37 states, with arch-conservative Justices Scalia, Alito and Thomas dissenting.
ARIZONA STATE LEGISLATURE V ARIZONA INDEPENDENT REDISTRICTING COMMISSION Arizona, like California, passed a proposition that took away from the legislature the power to redistrict state and congressional seats, and gave it to an independent commission. The Republican-controlled Arizona legislature wants this power returned to them. This decision could have ramifications on the similar redistricting done in California. A ruling in favor of the redistricting commission could empower other states to do the same; a ruling that the Arizona legislature has standing to sue could cripple this effort, and throw California's redistricting process into chaos.
OBERGEFELL V HODGES.This case involves the legality of same-sex marriages in four states, Ohio, Michigan, Kentucky and Tennessee. Proponents of same-sex marriage argue that the marriages are permitted throughout the country under the Constitution's Due Process and Equal Protection clauses; opponents believe that same-sex marriage eligibility should be determined by the voters of each state. This would create confusion regarding the legitimacy of marriages legal in one state but not in another.
GLOSSIP V GROSS. Several Oklahoma death-row inmates have claimed that the use of midazolam, an anti-anxiety medication, as a sedative during lethal injection violates their Eighth Amendment right to be free from cruel and unusual punishment. It is possible that the Court could address the legality of the death penalty itself in its decision in this case.
WALKER III V TEXAS DIVISION, STATE OF CONFEDERATE VETERANS, INC. The Sons of Confederate Veterans applied to have Texas's specialty license program authorize a license plate design that featured the Confederate battle flag. This case addresses the boundaries between government "speech" and free speech; the DMV refused to authorize this plate, ruling that it may do so when "the design may be offensive to any member of the public".
Many important decisions in this nation's recent history have been by 5-4 decisions, including Roe v Wade (on abortion), Bush v Gore (electing Dubya and all that caused), and Citizens United (allowing unlimited funding of political campaigns). Let's hope that when the Court rules on the legality of Obamacare, gay marriage, the death penalty, redistricting, and free speech, that it is not by a 5-4 decision, with one Justice casting the deciding vote on the legality of any of these important matters.
Think about how history would have been different if Justice Antonin Scalia had not sacrificed his legal principles to cast the deciding vote to elect George W. Bush president.