Justice Anthony Kennedy

Toxic News For ObamaCare? Will Curious Chemical Case Precedent Poison Law's Constitutional Claim Tomorrow?

The United States Supreme Court rarely shows unanimity in the cases it hears. But a 9-0 verdict in an obscure case about a chemically burned paramour from 2011 may provide an insight into how the court may rule tomorrow. The case, Bond v. United States sounds more like something from Boston Legal, or even The People's Court, than the Supreme Court. Here's what happened: Defendant Carol Bond discovered that one of her best friends was pregnant by her husband. In retribution, she sprinkled caustic chemicals on a mailbox, car door handle and door knobs. It worked: The home-wrecker suffered burns.

Federal prosecutors, however, didn't attempt a conviction under standard criminal laws. Instead, as if this case couldn't get stranger, tried Ms. Bond under a statute designed to implement the Chemical Weapons Convention. David Rivkin, perhaps the country's best appellate attorney and who successfully argued the first phase of the multi-state lawsuit against ObamaCare which the Supreme Court ultimately will decide tomorrow, takes it from here, in an op-ed published last year in the Wall Street Journal:

In defense, she argued that the law exceeded Congress's power because its violation required no link to interstate commerce or any other specific federal interest. The government argued that because the state (Pennsylvania) was not party to the suit, Ms. Bond could not defend herself by attacking that law on federalism grounds. The government prevailed in the Third Circuit Court of Appeals.

The Supreme Court disagreed. With an unusual unanimity, the court held squarely that individual citizens have every right to challenge federal laws on the ground that they exceed the limited and enumerated powers vested in Congress by the Constitution. The court stated without equivocation that "[b]y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When the government acts in excess of its lawful powers, that liberty is at stake."

Perhaps most frightening to ObamaCare defenders is a line from Justice Anthony Kennedy's opinion — the justice considered the court's swing vote, who, nevertheless, is committed to a dual state sovereignty system of federalism: "Fidelity to principles of federalism is not for the States alone to vindicate." More Rivkin:

For Supreme Court watchers, Bond is a profound reaffirmation of the centrality of the state-federal "dual sovereignty" system. That's why the decision is bad news for those who defend ObamaCare — the most extravagant challenge to that dual system in our history.

In enacting the ObamaCare law, Congress seized for itself the very type of power — the ability to regulate individual conduct regardless of any significant connection to interstate commerce or another legitimate federal regulatory interest — that the Constitution reserves solely to the states. In defending the law in court, the Obama administration has persistently sought to narrow the Constitution's federalism principles and to trivialize the Supreme Court's recent decisions supporting those principles.

What Bond makes clear is that those principles and cases are meant to be read broadly to achieve their original purpose: securing "the freedom of the individual" by allowing the states to respond "to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power."

For the rest of this insightful, short and very readable op-ed, click here. Prediction: By a 5-4 vote, the individual mandate is struck. The rest is allowed to stay but with reservations.

Big Week For Religious Liberty! (Or, Kaine And Stevens Cut From The Same Cloth)

Just two days ago, the U.S. Supreme Court rendered a 5-4 decision to uphold the display of a Cross on a World War I Mojave Desert memorial on what had been public property (once a national park, the land now is owned privately, yet a lower court ruled the Cross still could not be displayed.) In its majority opinion, the court stated:

The goal of avoiding governmental endorsement does not require the eradication of all religious symbols in the public realm.

The timing of the decision couldn't have been more fitting — the same day, Governor Bob McDonnell reversed the Kaine administration's discriminatory prayer policy that prohibited Virginia State Police chaplains from praying at public events according to their faith.

Religious liberty 2, ACLU 0!

This recent Supreme Court case, Salazar v. Buono, reversed the decision from a California lower court that ordered the removal of a Cross placed by the Veterans of Foreign Wars in the Mojave National Preserve in 1934 as a memorial to World War I soldiers (see California Catholic Daily). The circumstances surrounding the case, however, are far from simple.

The disagreement began in 1999 when a retired National Park Service employee sued saying that the Cross on public property constituted an unconstitutional establishment of religion. A federal court agreed and ordered that the Cross be removed. The decision was appealed and the U.S. 9th Circuit Court (the nation's most left-wing court) upheld lower court's decision. However, in 2003, before the Cross could be removed, Congress intervened and transferred the land in question to a private owner in an effort to side step the controversy.

Once again the lower courts and 9th Circuit weighed in and stated that Congress' maneuver was objectionable and did not solve the problem. In the meantime, plywood was used to cover the cross to prevent "any further harm." The U.S. Supreme Court then granted cert in the case to put the confusion to rest.

Justice Anthony Kennedy wrote the majority opinion and sent the case back to the lower court to be reassessed "in light of a policy of accommodation." The logical assumption is that the display of the Cross will now be allowed. Justices Antonin Scalia and Clarence Thomas agreed with the majority, but additionally argued that the retired park employee did not have standing to sue since the property had been transferred to a private owner. In addition, while the court did not specifically rule on the display of a Cross on public property, it certainly hinted that it would find such a display acceptable in some circumstances.

However, the written dissent truly was tragic. Justice John Paul Stevens, soon to retire,  wrote that the Cross was an improper and intolerable government endorsement of a specific faith. Similar to Kaine's discriminatory chaplain prayer policy, this opinion is yet another example of growing anti-Christian sentiment (see Huffington Post for anti-Catholic hysterics). Simply the fact that four Supreme Court justices could buy into this "logic" of censorship is proof that we must do more to protect our freedom of conscience. The Family Foundation will continue to keep a pulse on this issue and work on efforts to further protect religious liberty.

Quotes Of The Day

Poetically, from Associate U.S. Supreme Court Justice Anthony Kennedy:

Here one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.

And legally:

The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society. See Lee v. Weisman, 505 U. S. 577, 598 (1992) ("A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution"). See also Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 334 (1987) ("This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause"). Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework.