Standing Your Ground From State to State

Friday, April 06, 2012

Emily Bazelon, senior editor and court watcher at Slate, continues the conversation about the President Obama's conflict with the 5th Circuit over the Affordable Care Act Supreme Court case. Plus, she'll discuss Florida's Stand Your Ground Law and how gun regulation varies from state to state.

Comments [22]


@Jeff Park Slope , "The first amendment was created to guarantee the free flow of political speech and ideas. Speech costs money."

Why should speech cost money? In that case, only the rich can have their views disseminated broadly. That's as anti-free speech as one can possibly imagine. One day we will move away from the silly expensive hand-holding that elected officials must do to get re-elected and have them transmit their messages and hold debates via free or very low-cost media.

Apr. 06 2012 03:40 PM
Jeff Park Slope

meatwnyc and art525: Please explain why the Citizens United decision was politically and not constitutionally based. To me it seems clear cut but I'm not a lawyer. The first amendment was created to guarantee the free flow of political speech and ideas. Speech costs money. How can we prohibit anyone or any type of entity from saying or publishing political speech? Whose speech should be restricted? How much is too much? If you are concerned about too much money flowing into political campaigns, then maybe you should vote for candidates that want to reduce governmental influence over large areas of the economy. As long as government does things that affect people, people will want to influence the government (ADM and ethanol come to mind. Remove farm subsidies and ADM will spend their dollars elsewhere.) With respect to Bush v. Gore, I may be wrong but I thought that the primary dispute was about the proper role of the Florida Supreme Court in regard to the recount. Was your concern that they ruled on it at all or that they ruled incorrectly?
I never heard the story about the Russian judges so can't comment. I have heard the one about Justice Ginsberg recommending that countries seeking a constitution look elsewhere, not at ours. I may not understand the context of that statement but it does seem odd that she should say that.
As to whether the CU case will be revisited or resulted in a bad outcome, I haven't heard about revisiting it. The outcome is strictly speaking, I think, not the court's concern, the legislature can react accordingly.

Apr. 06 2012 03:27 PM
PJ from NJ from New Jersey

I find it both hilarious and disturbing when people think that just because something has become a societal norm that it is actually correct.

I’m not sure if Emily Bazelon went to law school, but her self-righteous giggling over whether judicial review is legitimate makes me think that she did, as most lawyers are brainwashed, Clockwork Orange-style, to believe that judicial review is constitutionally legitimate. Brian’s, yes it is, ‘duh’ moment was equally disturbing as was the letter written by Attorney General Holder.

The Supreme Court does not have the authority under the Constitution to strike down laws passed by the legislative branch and signed by the executive. If anyone can point out where it explicitly states or even reasonably implies this in the Constitution, I’d be more than happy to admit by ignorance.

Marbury vs. Madison was, quite simply, an attempt by the weakest of the three branches of government to increase its power and stature. With this landmark case, our nation was faced with a constitutional crisis in its infancy. Instead of recognizing the crisis, debating both sides, and making a definitive statement as to the Court’s authority (like, say, passing a constitutional amendment declaring that the Court has the power of judicial review), all parties decided that it was more expedient to, for lack of a better phrase, kick the can down the road. Of course there was some outrage, most notably in the form of Thomas Jefferson’s ‘constitution is a mere thing of wax’ letter to Spencer Roane, but even Jefferson was willing to let the Court’s unconstitutional action go largely unchallenged.

We need to stop kicking the can down the road and have the long overdue debate as to whether the Court should have the power of judicial review. I oppose giving this power to nine unelected officials, but as a strong supporter of the voice of the people, I will gladly accept the Court having this power if it is ratified by three-fourths of the states through the amendment process. But to continue along the path set forth in 1803 by Chief Justice Marshall is a ridiculous notion for a nation based on the rule of law.

Apr. 06 2012 01:37 PM
art525 from Park Slope

Oh andJeffParkSlope then there was that Bush v Gore decision. When the preident was selected not elected. Shorttly after that ruling the Supremes hosted a group of Russian jurists. They were invited to get a tour and to get an education on how the American legal system worked. The Russian jurists were flummoxed about how the Bush decision reflected a democratic election and sincerely asked questions about it. The Supremes sat there stonefaced unwilling or unable to answer their questions.

Apr. 06 2012 12:23 PM
art525 from Park Slope

JeffPark Slope- The Supreme Court is in fact creating policy as in the Citizens United decision. That can only be seen as the court trying to enact conservative policy. And now that we have seen what a disaster it is I have heard some say they think the court might go back and revisit it. If it was correct in terms of the constitution how could they justify a new interpretation and a new ruling? It is disingenuous to pretend that the court is not pursuing a political agenda.

Apr. 06 2012 12:18 PM

re Jeff:

If mandated Health Insurance in unconstitutional than Social Security and Medicare probably are too. Perhaps the difference is the government is forcing you to go out and get it for the former and providing it via taxes for the latter two. Which would bring up back to the idea on the left that what we really should of had is a push for a one payer public option, which was obviously blocked by the right and corporate interests.

I don't think liberals want a court that legislates and makes policy, but they feel that is what they sort of already have. Citizens United would be one well known example.

Apr. 06 2012 11:10 AM
Kate from Astoria

Doesn't imperfect self defense just mitigate murder to manslaughter?

Apr. 06 2012 10:59 AM
Jeff Park Slope from Park Slope

Judicial activism is not the same as judicial action. The court is in place for a reason. Judicial activism is when the court makes policy. The legislature makes policy. The job is not to make policy, as much as progressives would like this to be the case. The job is to determine if a law is consistent with the US Constitution. Not international norms, not what we would like because we are intelligent liberals, but based on the Constitution. The Constitution can be changed via the amendment process. If it is overruled without being formally amended, then it has less meaning over time. It will mean what the justices want it to mean, which for some is based on what is in their hearts. I for one, would prefer to live in a country of laws, not a country of whims. Clearly I am not liberal. Would you as liberals want a court with a very conservative majority to actually create policy?

Apr. 06 2012 10:56 AM
Will Miles

For Brian to glibly say that Obama's comments to the Supreme Court were really aimed at only Justice Kennedy is so myopic. There are 9 justices and there should be no reason whatsoever that the ultimate vote by this Court should not be 9-0 in favor of upholding the Healthcare Reform Act. We should not allow the partisan, conservative rhetoric (and activity) to numb our otherwise thoughtful commentary. I.e., just because the Justices often split along similar lines does not mandate that they will do so in this case. Right?

Apr. 06 2012 10:49 AM

The protection of minority rights against the 'tyranny of the majority' IS NOT the Supreme Court's job!

These protections are guaranteed to each of us in the Constitution. Our entire government should protect and defend the Constitution. As final interpreters of what the Constitution means and balancing the impact of laws against the Constitution, SCOTUS' role is often seen as the last protector of minority rights. We hope they always choose individual rights but they often don't - Dred Scott leaps to mind, but it is our collective belief in the sanctity of the Constitution that gets the job done.

Apr. 06 2012 10:49 AM
art525 from Park Slope

Oops I was wrong. Chase was not impeached. Sorry.

Apr. 06 2012 10:48 AM
amalgam from NYC by day, NJ by night

You should bring Mr. Vandenheuvel back onto your show...

Apr. 06 2012 10:46 AM
art525 from Park Slope

Salmon Chase was impeached but acquited. It's time to try it again. These guys really do need to be impeached.

Apr. 06 2012 10:42 AM
art525 from Park Slope

That judge is a pompous self important ass.

Apr. 06 2012 10:41 AM
Amy from Manhattan

Maybe the judge wanted the letter single-spaced to save paper!

And I may have missed something in the clip--what was the example being set that Pres. Obama referred to?

Apr. 06 2012 10:38 AM
art525 from Park Slope

@chuzzleguy- because the Supreme Court is guilty of the judicial activism that the right have howled about for years.
Bush v Gore and Citizens United come to mind. They are phonies, a bunch of right wing zealots, politicians not judges.

Apr. 06 2012 10:38 AM
Ben from Westchester

Here's a questions for our SCOTUS watching friends.

People keep stating that if the "individual mandate" is struck down, then we will lose the entire Obama Health Care program.

But if Obama and the Supreme Court are really at loggerheads (and the partisan shift of the Court clearly began with Bush v. Gore, not last week), then why wouldn't the Obama administration allow the Affordable Care Act to continue without a mandate?

Of course this means that rates will rise terribly and Health Insurance companies will complain, since healthy young people will not be forced to opt in and yet HMO's will have to give health care even to those with pre-existing conditions.

But Obama could easily say that is the fault of the Republicans and the Right, since it clearly will be. And thus the rates are their problem. After all, the HMO's were and still are fighting the act tooth and nail.

What am I missing?

Apr. 06 2012 10:38 AM
Nancy Cadet from Fort Greene

Re. Supreme Court comments

Can anyone cite FDR's words re Supreme Court? Where is the historical context in this discussion and today's context ? There is no comparison between Gingrich's inflammatory talk and Obama's mild reminder.

Get more informed and cogent guests, please! David Cole, Dahlia Lithwick, Akhil Amar, Patricia Williams etc

Apr. 06 2012 10:37 AM
the_hme from Jersey City, NJ

Hi Brian, but it is the Republicans that have been arguing against the court's power over many years and what Obama has done is not any different than what they have been doing. Let me find some examples for you, but still, I think you should have someone look into this.

Apr. 06 2012 10:32 AM

Pointing out that 'judicial activism' cuts both ways and that the GOP positions are often hypocritical does not appear to be bullying to my eyes but is also no surprise.

Apr. 06 2012 10:32 AM
Martin Chuzzlewit from Manhattan

The preliminary SCOTUS vote was leaked to the administration and that informed Obama's remarks because the results were not favorable to them.

Apr. 06 2012 10:32 AM
amalgam from NYC by day, NJ by night

Well done getting all the "stand your ground" laws passed for the NRA, ALEC (American Legislative Exchange Council).

Gotta say that right wingers and their organizations, like ALEC and their model legislation packages, know how to get things done.

Of course, there is now, happily, PR fallout for corporate members.

Coke withdraws from group that backs Stand Your Ground law

ALEC's secret influence on state laws, legislators

Apr. 06 2012 10:09 AM

Leave a Comment

Email addresses are required but never displayed.

Get the WNYC Morning Brief in your inbox.
We'll send you our top 5 stories every day, plus breaking news and weather.