Boots & Sabers

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Tag: Supreme Court of the United States

The rise and fall of the Supreme Court

My column for the West Bend Daily News is online. Here it is:

The Supreme Court issued a series of bad rulings last week that indicate this court has lurched from being an austere arbiter of the law to a highly partisan legislative body. Unfortunately for the American people, it is a legislative body that consists of members appointed for life and not accountable to the people. In no case did the Supreme Court belittle itself more than in the case of King v. Burwell — the case about the Obamacare subsidies.

This was a case that was about the plain reading of the English language. The Obamacare law gave each state the ability to create a health care exchange, but if a state chose not to do so, the federal government would create one. The Obamacare law also clearly states in several places that the federal government would provide a means-tested subsidy for participants in the state Obamacare exchanges, but only for participants in the state exchanges. The law specifically excludes giving a subsidy to participants in the federal exchange.

The purpose for the law’s language on subsidies was obvious and clearly stated by advocates of the law in the press and in official Congressional debates. The advocates of Obamacare wanted the states to create the Obamacare exchanges so that the states, and not the federal government, would bear the brunt of the cost of Obamacare. In this way, Obamacare could be sold to the public without having to disclose its actual, and enormous, cost to the taxpayers. The subsidies were used as a political cudgel to incent the states to create Obamacare exchanges under the calculation that no state would dare to turn down “free” subsidies to their citizens.

The law did not play out the way the Obamacare advocates planned. Many states, including Wisconsin, wisely saw through the game they were playing and refused to create a state exchange. This left President Barack Obama a political disaster with the prospect of millions of Americans being forced into the federal Obamacare exchange without a subsidy. So, Obama and team did what they have always done: They ignored their own law and issued subsidies to participants in the federal exchange anyway.

This is what King v. Burwell was about. Does Obamacare say what it actually says — that the subsidies only apply to participants in the state exchanges and not those in the federal exchange? The Supreme Court ignored the plain language of the law, the context in which it was written and the purposeful intent for why it was written. Instead, the court ruled that the law means whatever Obama and team want it to mean. The Supreme Court has officially sanctioned arbitrary rule.

Chief Justice John Roberts admits as much in the majority opinion. He writes, “If the statutory language is plain, we must enforce it according to its terms. But oftentimes the meaning — or ambiguity — of certain words or phrases may only become evident when placed in context.” Brown & Williamson, 529 U.S., at 132. So when deciding whether the language is plain, we must read the words “in their context and with a view to their place in the overall statutory scheme.”

In other words, it does not matter to Roberts what the actual words mean. He and his fellow legislators in black robes will give the words whatever definitions they choose irrespective of the clear meaning of words in the English language.

As usually happens, Justice Antonin Scalia perfectly eviscerates the majority’s bad decision in his dissent. He says, “… the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites. I dissent.”

As do I.

Owen Robinson is a West Bend resident. Reach him at

SCOTUS Blocks Voter ID in Wisconsin


MADISON — The U.S. Supreme Court on Thursday blocked Wisconsin from implementing a law requiring voters to present photo IDs, overturning a lower court decision that would have put the law in place for the November election.

The 7th U.S. Circuit Court of Appeals declared the law constitutional on Monday. The American Civil Liberties Union followed that up the next day with an emergency request to the Supreme Court asking it to block the ruling.

On Thursday night the U.S. Supreme Court did so, issuing a one-page order that vacated the appeals court ruling pending further proceedings. Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented, saying the application should have been denied because there was no indication that the 7th Circuit had demonstrably erred.

Here’s the text of the order:

The application to vacate the September 12, 2014 order of the United States Court of Appeals for the SeventhCircuit presented to Justice Kagan and by her referred to the Court is granted and the Seventh Circuit’s stay of the district court’s permanent injunction is vacated pending the timely filing and disposition of a petition for a writ of certiorari respecting case Nos. 14-2058 & 14-2059. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court
JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.
There is a colorable basis for the Court’s decision due to the proximity of the upcoming general election. It is particularly troubling that absentee ballots have been sent out without any notation that proof of photo identification must be submitted. But this Court “may not vacate a stay entered by a court of appeals unless that court clearly and‘demonstrably’ erred in its application of ‘accepted standards.’” Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 571 U. S. ___, ___ (2013) (slip op., at 1) (SCALIA, J., concurring in denial of application tovacate stay) (quoting Western Airlines, Inc. v. Teamsters, 480 U. S. 1301, 1305 (1987) (O’Connor, J., in chambers);some internal quotation marks omitted). Under that test, the application in this case should be denied

As I understand this, SCOTUS blocked the implementation of Voter ID pending a decision on whether they will take the case or not. If they decide not to take the case, the law will immediately go into effect. Their concern is that the implementation of the law this close to an election may be problematic for those to whom absentee ballots were already sent. There is no indication as to whether or not the court will accept the case.

Voter ID will eventually be implemented in Wisconsin, but not for this election.



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