A Supreme Test For The Biden Administration | Alito Not Surprised Over Backlash To His Comments On COVID-19 Restrictions
February 1, 2021
DON'T BE SHY
|Adam Liptak with The New York Times reviews the time in 2012 when CHIEF JUSTICE JOHN ROBERTS was annoyed at the Obama administration for taking a position in a case “disavowing a position taken by its predecessor.” Liptak notes the solicitor general’s office under Biden will soon have to decide whether to similarly disavow positions taken by the Trump administration. “In an office that prizes its reputation for credibility, consistency and independence, solicitors general of both parties have said they are wary of veering from positions staked out by their predecessors.” But attorney Michael R. Dreeben, who worked as the deputy solicitor general for years, argued in a law review article that the Biden administration shouldn’t be shy about asserting its views. “The court will understand that new administrations have new views, particularly coming on the heels of the Trump administration, which in many ways pressed a radical vision of its jurisprudential agenda on the court that a successor administration is entitled to push back on.”
PICK YOUR BATTLES
|In fact, the pending Supreme Court case on the Affordable Care Act could give the Biden administration its first chance to change course in front of justices. Former solicitor general PAUL CLEMENT told Mark Sherman with The Associated Press that the health care case is a good candidate for when a rare change may be warranted.
TWO FOR THE PRICE OF ONE
|Brent Kendall with The Wall Street Journal reports former PRESIDENT TRUMP’S judicial appointees stand to influence legal outcomes for decades to come. Take for instance the 9th Circuit that has a “longstanding reputation for liberalism” but recently handed down rulings that had conservatives cheering. Appointees of Trump were in the majority in those decisions. And the historically conservative 5th Circuit has gotten even more conservative thanks to Trump. Kendall writes, “The two courts illustrate the range of ways that Mr. Trump’s life-tenured appointees—three Supreme Court justices, 54 appeals court judges and 174 district court judges—could influence the law for years to come. They also underscore a central achievement of Mr. Trump’s four years in the White House: Thanks to Republicans’ focus on the judiciary, his impact on the courts was that of a president who served two terms.”
ED BOARD OVERTURE
|“Can a state collect income tax from nonresidents working remotely for in-state businesses? Massachusetts, New York and some other states claim they can, and now New Hampshire is asking the Supreme Court to protect its citizens from this tax grab.” The Editorial Board of The Wall Street Journal explains Massachusetts and other states are forcing nonresidents to pay income taxes even though they’re not using any public services because they’re now working remotely. The Ed Board argues, “If the court doesn’t intervene, remote workers who are unfairly taxed by other states will have no recourse for redress beyond biased state tax tribunals. States like California may copy the Massachusetts and New York playbook. The justices last week invited the acting Solicitor General for an opinion on the multistate tax brawl, but this looks a good case for the high court.”
NO SURPRISES HERE
|Over the weekend, JUSTICE SAMUEL ALITO shared in a statement that he wasn’t surprised by the backlash he received after his Federalist Society speech in which he shared concern over COVID-19 restrictions placing limits on individual freedom. John Fritze with USA Today reports, “Speaking to a group of conservatives and libertarians days after the bitterly fought presidential election, Alito let loose on what he described as previously ‘unimaginable’ state-imposed restrictions during the coronavirus pandemic – lamenting the ‘severe, extensive and prolonged’ lockdown policies he said amounted to a ‘constitutional stress test.’ With his flair for slicing to the core of an argument, Alito pointed to Nevada Gov. Steve Sisolak’s decision in May to impose less rigid attendance limits on casinos than churches, noting the Constitution doesn’t include a ‘blackjack clause’ to protect gambling the same way it protects religion. Alito said he wasn’t criticizing the policies – ‘I’m a judge, not a policymaker,’ he said – but said the restrictions raise profound questions.”