The U.S. Supreme Court; It’s a Wrap!

June 27, 2016

On Monday, June 27, the U.S. Supreme Court issued decisions in Voisine et al. v. United States, No. 14-10154; Whole Woman’s Health v. Hellerstedt, No. 15-274; and McDonnell v. United States, No. 15-474. With these decisions, the oddest Term in this writer’s memory is a wrap!

On the odd part, on February 12 or 13 Justice Antonin Scalia died suddenly at a hunting lodge in Texas. Senator Majority Leader Mitch McConnell announced within an hour of the confirmation that Justice Scalia’s death that the Senate would not vote on any nominee put forward by the sitting President of the United States. (Senator McConnell controls the Senate calendar, and is also the man who will not say whether the candidate he has endorsed for POTUS, Donald J. Trump, is qualified to serve as President of the United States.)

Nineteen weeks later, Judge Merrick Garland has been the nominee to replace Justice Scalia for 104 days. There’s no likelihood as of today that his nomination will be considered before the November 8 presidential election, or after that date. (Deep divers should read The Garland Affair: What History and the Constitution Really Say About President Obama’s Powers to Appoint a Replacement for Justice Scalia by Robin Bradley Karl and Jason Mazzone for the New York University Law Review Online. It provides the real history about the hijacking of the Constitution by Mitch and his Merry Men and Women.)

On to the cases. In Voisine a 6-2 majority held that reckless domestic assault qualifies as a misdemeanor crime of domestic violence under 18 U.S.C. § 922(g)(9). The federal statute prohibits gun ownership by individuals convicted of a misdemeanor crime of domestic violence. The case turns on how the federal statute applies to state domestic violence statutes which, from state to state, differ. Complicated stuff, beyond the scope of this post and frankly, the writer’s knowledge of criminal law.

Six justices got to the meat of the matter. Bad guys with guns are a bad thing. The dissenters—Justices Clarence Thomas and Sonia Sotomayor, an odd pair if ever there was one—focused on the fact that the federal statute does not by its terms clearly apply to all domestic violence crimes. Bottom line? Fewer people—mostly men, of the sort who hit women—will own guns lawfully. Good on that!

Hellerstedt tossed a Texas law which required that abortion clinics meet standards for surgical centers, and that doctors performing abortions must have admitting privileges at a hospital located within 30 miles of the abortion clinic. A 5-3 majority—the expected split, with Justice Kennedy joining the majority—held that the Texas statute placed an undue burden on women. By doing so it violated the plain language of Planned Parenthood v. Casey, No. 91-744. Casey mandates that states not place “substantial obstacles in the path of a woman seeking an abortion.” The analysis in Hellerstedt reaches the conclusion that the Texas requirements did in fact place an undue burden on women seeking abortions.

This writer lives in the “safe, legal, and rare” camp which Hillary Clinton inhabits when it comes to abortion. That said, he believe in the rule of law. The Texas law fell apart at the oral argument, when Notorious RBG aka Justice Ruth Bader Ginsburg eviscerated counsel for the State of Texas. (Go to 36:25 – 38:19—page 36, line 25, etc.—to see read the blood on the floor.) For non-clickers, the Texas crocodile tears for women were obvious!

Finally, in a unanimous decision the Court set aside convictions against the thoroughly odious former Virginia Governor Bob McDonnell and his equally disgusting wife, Maureen. This couple had wealthy, generous friends who wanted favors. Lots of gifts; lots of favors. Alas, the Court held that providing the favors and receiving the gifts did not constitute a crime. Readers with criminal law knowledge, please jump in. For now, though, it seems like a public official can be bought and paid for, just so long as there’s no written contract which provides details.

Mixed feelings tonight. Some good decisions, but a failed term, on balance. Good riddance to the 2015-16 Term, with little hope that the Court will be back to what ought to be normal in time for the 2016-17 Term.

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