It is not lost on me as a resident of Virginia and a student of history that our state is once again on the wrong side of the U.S. Constitution and that it will again have to be dragged by the courts into doing what is right and just - although it is heartening that some state officials have recognized the invalidity of the discriminatory laws.
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This spring, the Supreme Court will decide—for the first time in our nation’s history—whether secular, for-profit corporations are entitled to invoke the constitutional guarantee of the free exercise of religion. The stakes are huge, as the justices will determine whether business corporations can claim a religious exemption from federal laws that protect the rights of their employees. You would think that corporations, which routinely jump in to protect their interests at the high court, would have weighed in on an issue of such significance. But not this time. Indeed thus far, the response of the business community has been near-total silence.
In his Jan. 30 op-ed column, “Obamacare’s lethal flaw,” George F. Will praised an Affordable Care Act “suit you probably have not heard about” that would bar tax credits to needy individuals seeking to purchase insurance on state exchanges run by the federal government, and thereby “blow [the ACA] to smithereens.” But Mr. Will omitted an important development in this story.
On Monday, Solicitor General Verrilli spotlighted this big-picture originalist perspective. He paraphrased and cited Federalist #51. In closing, he warned that if the Court accepted the challengers’ invitation to intervene in this inter-branch “political fight,” that would, antithetical to the founders’ design, “write the recess appointment power out of the Constitution,” and “disarm one side.”
This time of year, most of us are reflecting on the year that has drawn to a close and making resolutions for the new one. Over at One First Street, perhaps the Supreme Court’s justices are doing the same. But while the rest of us are vowing to get to the gym more often or eat more kale, the justices should focus on one simple resolution for 2014: Follow the Constitution.
This Supreme Court term is shaping up to be the biggest one for the environment since the Roberts court decided Massachusetts v. EPA in 2007. The court is slated to decide not just EME Homer this term, but also a challenge to the EPA’s recent efforts to regulate greenhouse-gas emissions. With the Obama administration pressing ahead with new regulations, this term may offer important clues as to where the Roberts court — and especially Justice Anthony Kennedy — will stand in key environmental cases moving forward.
When business owners create a corporation as the means of carrying out their business, they create a distinct legal entity with rights, obligations, privileges and liabilities that are different from the individuals who set up the corporation. This generally works to the benefit of the individual owners, which is why people choose to incorporate in the first place. And it means that certain rights specific to individuals do not carry over to the corporate form.
Even if the justices remain reluctant to lift their ban on cameras, there's no reason for them to block a live audio feed of their oral arguments. They already provide one for members of the Supreme Court Bar in the court's “Lawyers' Lounge.” Why not provide that same service to everyone else?
For decades, debates over the Constitution divided along familiar lines. Progressives professed faith in a "living Constitution," while conservatives claimed fidelity to originalism. In recent Terms, however, this dynamic has changed. The Court's progressive wing - led first by Justice John Paul Stevens and, since his retirement, Justice Ruth Bader Ginsburg, and aided by leading academics and practitioners - have begun to stake their own claim to the Constitution's text and history.