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How does the US Constitution deal with conflicts of interest by the Supreme Court?

Did the Founding Fathers ever anticipate how it would impact on the issue of abortion? Should male Supreme Court Justices be permitted to vote on issues relating to abortion?

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    Feb 1 2014: Hi Richard,
    I sincerely hope, that if one of the members of the supreme court has a conflict of interest, s/he would recuse him/herself from the proceedings.

    I suggest that at the time the constitution was written, abortion was not discussed publically. It was something that took place in a back room somewhere, and was not made known to anyone. My guess, is that the founding fathers did not ponder abortion, because they probably wanted to KEEP it in the back room. I'm sure you know that abortion has been happening since the beginning of humankind, with herbs, various kinds of tools and primitive instruments, etc.

    Abortion is something that impacts men and women, since they are both responsible for creating a pregnancy. Therefore, it impacts our societies,. So, no, I do not perceive a conflict of interest with either male or female members of the supreme court with the issue of abortion.

    That being said, I personally do not think/feel it should be a court issue. The practice of abortion has been taking place since the beginning of humankind, and many woman have died from infections, hemorrhaged to death, or been drastically mutilated because of abortions preformed without any consideration for the woman's health. I prefer to see abortions done in a sterile, safe environment by a trained medical professional, rather than the way they were done many times in the past.
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      Feb 2 2014: Colleen,
      Abortion is one subject I am so conflicted. Before Roe vs Wade some 50 years ago, there were some terrible incidents concerning abortions. Women of means apparently had little problems, the poor, not so much. As far as I was able to learn, there were no confident numbers on abortions successful and even the unsuccessful ones where medical intervention was sought may not be complete.
      But in the last fifty years, there are numbers,
      The government reports that since R vs W there has been nearly 50 million abortions, about 30 million are Black Americans. That is almost as many Black Americans as was counted in the last census. I find these numbers appalling. Was there a fetus in that number that could have grown to find a cure for cancer or or or.

      On the other hand, I understand that someone is in a situation where the birth of a child will cause great consternation for many reasons. I have seen children born greatly malformed and kept alive through the most extraordinary means only to exist with no cognitive function. I have said we treat our pets with greater compassion. So, there is my dilemma,

      The question of rights on which our law was based was based on property law.which I considered a cop out rather then to face the issue of life straight on. To make matters worse for me, I see this bargaining over abortion of a viable fetus is ok at this point and not at that. I learned in biology 101 that the zygote has genes from both parents and is an individual person and the only difference from me is many decades.

      I would guess that you are not so conflicted. As far as the SCOTUS goes, I am not sure that the sex of the justice would make any difference in any future challenge to R vs W.

      PS: I too do not want a woman to undergo any medical procedure without the best medical service available,
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        Feb 2 2014: Mike,
        Many people are conflicted about this issue...I would probably be conflicted if I ever had to make that decision...young girls and women who make the decision are conflicted by it all the time. That is one factor that a lot of people do not consider.

        There were no numbers on abortions because as I stated previously, they were often done in an unsterile back room, by people not adequately trained. I suggest that the same numbers of abortions were happening prior to R vs W.

        As a volunteer in a women/children's shelter for a couple years, I interacted with lots of young girls and women for whom the birth of a child would mean "great consternation" as you say. With counseling and support, we encouraged choices made by the women themselves, with ALL relevant, adequate information, which is what is done in women's health care facilities and medical facilities at this time.

        The greatest compassion we can give to a person who faces this decision, is to realize that it is HER decision, with help from partner, family, etc., if that is applicable.

        You say..."The question of rights on which our law was based was based on property law...."
        I am not sure which law you are referring to, but that is true....women, at the time the constitution was written, and for many years thereafter, were considered property of the man, and women had no rights. That is probably one reason abortion was not considered at the time of the writing of the constitution.

        I do not see "bargaining over abortion" as ok at all Mike. It is a woman's right to take care of, and use her body as she chooses. NOONE has the right to take that away from her. The woman or young girl is an "individual person" Mike, no matter what one's perception of the fetus happens to be.

        Unfortunately, it is often based on religious beliefs. It was not uncommon in the shelter, to see a teenage girl pregnant by her father, who insisted she could not have an abortion because they were a good Christian family!
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          Feb 2 2014: I think to better express myself, I hold two views. On a personal level, if I had a daughter who was facing this situation, I don't know where I would be... most likely out buying a shotgun. And yes, there are too many cases of rape and incest, but not enough punishment, only the future person is punished.
          And then there are the abortions for reasons of drug use, poverty, immaturity, lack of education, lack of personal responsibility, more immaturity, and more lack of responsibility.
          Now I am getting a sad for the irresponsible loss of life.
          On the public side, when I look at the numbers, just in the USA, in the last 50 years,
          there has been more lives ended legally then all of the wars in modern history. When I factor in all the legal abortion across the world, my mind boggles.
          Then I see on TV, some man in.... Tenn....? bragging on how he has fathered several dozen kids by a dozen different women, but no problem, he and all his offspring are well taken care of by welfare programs. Why aren't all these people carrying signs for and against abortions using these signs to beat this lowlife over the head, because if he had so many children survive, how many were aborted ?
          I'll bet there was one.
          Here is my bottom line... if the energy, emotion and money that went into the abortion issues from both sides were to be focused on education and social safety programs to teach people that sex is not a recreational sport for when there is nothing good on TV and men were punished for rape of related children, etc.
          then maybe the question would come down to abortion in extreme medical situations and we wouldn't be losing a million future citizens a year.
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        Feb 3 2014: I think I am aware of your position on abortion Mike, and I totally agree that education is helpful. I came to this conclusion years ago when volunteering in the shelter for women/children. So after volunteering there, I volunteered with the dept. of corrections and worked with offenders.

        I have no desire to go round and round with the numbers Mike....I prefer interacting with people and real situations, which I did for a number of years.

        The topic question is not whether or not we approve/disapprove of abortion.
        The topic question is...
        "How does the US Constitution deal with conflicts of interest by the Supreme Court?"
        "Should male Supreme Court Justices be permitted to vote on issues relating to abortion?"
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          Feb 3 2014: I imagine it is harder to deal with real people than pages of statistics.

          I looked at the constitution and it doesn't address this issue as I can see. The beauty and the consternation of the Constitution is that it was intended to be executed by noble and prudent people. I guess subsequent cultural evolution has diminished nobility and prudence. As such, conflicts were not addressed.
          As far as the abortion issue, I see a positive outcome to having male jurists, they probably would not have an emotional involvement and could rule on the specific legal issues and the applicable law.
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        Feb 3 2014: Depends on our individual interest and intent Mike, whether it is more....or less challenging dealing with real people or pages of statistics:>)

        I feel that applying the information to interactions with real people is more interesting and beneficial.

        Those who wrote the constitution may have been noble and prudent people of the time, and times change Mike. I am grateful that women are no longer legally considered the property of men, and we have the right to vote! That is progress:>)

        Let us not forget Mike, that the noble, prudent people who wrote a couple documents that said all men would be free and equal, owned hundreds of slaves. I don't think cultural evolution has diminished anything. Perhaps we are actually now evolving:>)
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          Feb 4 2014: Hi,
          I don't get around much anymore, so it's paperwork for me.
          I am not sure that new legality gave women that many benefits, for example; are you proud of all these elected officials? Half of the voters are women. : )
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        Feb 5 2014: Hi again Mike:>)

        Paperwork and statistics are a good resource for information, and I am one who likes applying information to real life scenarios. Sorry you do not "get around much anymore", and your comments suggest that you are still keeping yourself informed.

        Am I "proud of all these elected officials?"
        I certainly am not proud of some of them Mike, and I AM proud of the ones I vote for, because they genuinely represent what I care about and support. Before I vote, I do quite a bit of research and am aware of what our elected officials stand for.

        Unfortunately, I observe that some people do not know what they are voting for, as with people who simply vote party for example, regardless of the reputation and information available about the person.
    • Feb 2 2014: You do realize that a "conflict of interest" means "direct connection to the outcome". Thus, men, who could not get pregnant, cannot have any "conflict of interest" at all in an abortion decision. They have no stake at all in the outcome. It neither hurts nor helps them. Thus, men are eminently qualified and women must be disqualified due to "conflict of interest".

      "Conflict of interest" does not men "Likely to decide in a way I don't like."
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        Feb 3 2014: I am well aware of the meaning of conflict of interest Bryan Maloney, and perhaps you could brush up on the meaning as well.

        You say it is a "direct connection to the outcome", which is on the right path.

        1) The supreme court judges are both male and female, as are the billions of people in our world, so simply being male or female does not qualify as a direct connection to the outcome.

        2) A direct connection might be friends or relatives coming before the court with a question of the legality of abortion. It would be appropriate for a judge to recuse him/herself if that were the situation, because the judge could be influenced by the friends/family whether the judge was male or female.

        3) Another conflict of interest might be apparent if the judge has spoken out publically FOR or AGAINST abortion. It might be apparent that the judge, whether male or female, might have a predisposition regarding the issue of abortion, and it would be appropriate to recuse him/herself.

        4)The main reason for recusal in a legal proceeding when there is a conflict of interest, is to prevent the proceeding from being challenged as null and void because of a conflict of interest. Conflict of interest compromises the proceeding.

        • Feb 5 2014: However, the premise has been that men MUST recuse themselves from the issue of abortion, because men would automatically have a "conflict of interest" and women would not. How do you answer that demand?
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        Feb 5 2014: Bryan Maloney,
        There is no "premise" that men MUST recuse themselves from the issue of abortion", and there is no "demand" to do so. You seem to simply want to be antagonistic, and I'm not interested. Please familiarize yourself with "conflict of interest" if you genuinely have any interest in the topic whatsoever.
        • Feb 10 2014: Please read the original post in this thread. Respond to what I have written in that context.
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        Feb 10 2014: I HAVE carefully read your posts, and responded to what you have written Bryan Maloney! I do not agree with you. Apparently, you do not understand or accept that.

        EDIT regarding comment below:
        I addressed the original post in my comments Bryan Maloney. I repeat, I DO NOT AGREE WITH YOU, and I have addressed that with you in response to your comments.
        • Feb 11 2014: Here, let me QUOTE THE ORIGINAL POST IN THE THREAD: "Did the Founding Fathers ever anticipate how it would impact on the issue of abortion? Should male Supreme Court Justices be permitted to vote on issues relating to abortion?"

          I DID NOT SAY "READ *MY* ORIGINAL POST". I SAID "READ *****THE***** ORIGINAL POST". So, now that I have reproduced the original post in the thread, what have you to say? You will make it a personal issue and continue your ad hominem.
  • Feb 13 2014: The Founding Fathers establishment of the Executive Branch and Legislative Branch was to ensure that neither branch became too powerful. They (Founding Fathers) established a third branch, the Judiciary Branch, to resolve problems that came up between the Executive Branch and Legislative Branch.

    The Founding Fathers never envisioned, or took into consideration, a two party system. They believed the three branches would remain non-partisan and each branch would monitor the other.

    By definition, the Supreme Court's responsibility is to interpret The Constitution. So technically there is no conflict of interest in any Supreme Court decision. Their job is strictly interpret The Constitution.

    In the case of Roe v. Wade (Wade being the District Attorney of Dallas County) The Supreme Court ruled against Wade and the Texas law regarding abortion. The district court's decision was based on the rationale of the Ninth Amendment. Instead, The Supreme Court's decision was based on the Fourteenth Amendment "Right to Privacy" which simply put, trumped State decisions based on the Ninth Amendment. The Supreme Court at the time of the 1973 decision was made up of all men. The court decided 7 - 2 in favor of Roe. The same decision was made by the Supreme Court in the case of Doe v. Bolton declaring Georgia's laws regarding abortion in violation of the Fourteenth Amendment.

    Conflicts of interest, if brought out before the Senate Judiciary hearings for a Supreme Court (or other court) Justice nominee, is where a conflict of interest can disqualify said nominee. This is why nominees receive so much scrutiny. And, why they are thoroughly vetted by the President's staff.

    But once they are on the Court, it is permanent. Justices are subject to impeachment but I could not find that has ever happened in U.S. history. Impeachment is equal to indictment. The House of Representatives decides on impeachment. If the decision to impeach is made, the Senate then holds the trial.
  • Feb 1 2014: Does the Constitution give the supreme court the power to determine Constitutionality? (Hint: The Founders weren't dumb enough to allow the fox to guard the chicken coop.)

    If the general welfare clause grants unlimited power, what was the point in listing the enumerated powers of the federal government?

    If the general welfare clause grants unlimited power, what is meant in the 10th Amendment by "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." So, that would be the reservation of .... nothing?

    Many TEDsters support many good causes, but unfortunately, most causes aimed at "helping people" should not be done by government, because government cannot perform those without violating the property rights of its citizens, and the protection of rights is the only legitimate function of government . If you want to help people, volunteer or give your money, don't vote to take from someone else - that's not noble, it's theft.
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      Feb 2 2014: Good take Ray,
      The general welfare clause has been interpreted as a blank check,over the years, as a result the enumerated powers and the 10th are for practical purposes...are not worth the 200 year old paper they are written on, further, the 17th took the power from the states. So, now instead of a constitutional republic. the USA has morphed into two party democracy where the elections are based on which party can promise more.
      • Feb 2 2014: The "general welfare" clause is explicitly excluded by precedent from being used by the Supreme Court. They use other parts of the Constitution and do not consult the Preamble. Go read the ACTUAL DECISIONS you disagree with.
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          Feb 2 2014: Don't get me started on the influence of the general welfare clause on the findings of the Court or the laws passed by congresses or the myriad of programs established by administrations in the last 200 odd years.

          I am reminded of extreme terrorists using God to justify their actions.
          In this government they use the General Welfare Clause.
      • Feb 2 2014: Mike, Please pardon my jumping in here.
        I've become a bit palsied so I may make a mess with my typing.

        You are right when you wrote -- ".. the USA has morphed into two party democracy
        where the elections are based on which party can promise more."

        Our nation has done exactly that.
        I watched Jon Stewart on The Daily Show 1-30-2014.
        His guest was Rep Nancy Peglosi. She had just finished raising $30 Million for her
        campaign war chest, and appeared proud of her deed, saying it was necessary to
        get elected in today's politics.

        Jon tried to get her to address Corruption by Bribery in the Congress. She didn't want
        to admit that both Democrats and Republicans were equally responsible. Her idea
        was that the Republicans did take the bucks, and only a few Democrats might have.
        She appeared startled when informed that staff had left for Boeing Lobby positions.
        She wanted their names. Then a looong Commercial Break, and upon return, nothing
        else was said on the subject.

        When the only Candidates (with a chance of winning) are pre-selected, and financed
        by the Leadership of only 2 political parties, I would have to suppose that regardless
        of the election's outcomes, the 2 political party's Leadership just split the Government.

        The Constitution is no longer any guarantee of Freedom. Privacy is of course dead.
        The Supreme Court Justices are pre-selected much in the same way as Political
        Candidates. Behind closed doors.

        Has anyone ever asked... "Who are the Party Leaders?"
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          Feb 2 2014: Frank,
          I have heard stories. Some say that the Democrats are led by old hippies from the 60's who went on to be college professors and spread that point of view to their student body who grow up to be party leadership. I am sure there are people convinced that this is the only way for the country to work in a fair and equable arrangement guided by strong central leadership.
          Then there are those "Capitalists" who are needing government from allowing them to engage in profiting at the expense of others. No fair trade here, They are providing campaign funds and maybe not as directly influence policy but just enough to guide it away from them.
          What surprised me, it that the intensity of the liberal positions and lack of driven commitment on the conservative side. I offer the ACA as an example, if the roles were reversed, I am not sure the republicans would have passed the law in the manner of the democrats, if at all.
        • Feb 11 2014: In other words, someone has just been blindly parroting political gabblegabblegabble and can't back it up with hard facts.
        • Feb 20 2014: No, I was addressing the fact that Mr. Colera makes a lot of daffy claims about the "General Welfare claus" and refuses to back them up with actual citations. That's the gabblegabblegabble. However, if YOU think that the "General Welfare clause" is being used left and right, willy-nilly, for all kinds of court decisions, please back that up with citations, or also be accused of blindly gabbling.
      • Feb 2 2014: Actually, do get started on supposed effects of the "General welfare clause". I'd like to see this explicated with direct citations of references to this clause in the actual decisions. I've never seen it laid out coherently, only stridently claimed with innuendo and "just so", but without the direct quotes from decisions. Adding those direct quotes would benefit everyone greatly.
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          Feb 2 2014: No Bryan,
          There has been no politician or jurist, that I am aware who specifically addressed the phrase the "General Welfare".... What is said is... For the middle class, for the poor, for the 99%, etc. etc,
          However, once these programs are in place, then there is the words of "for the good of all Americans, like Social Security and Medicare and now the ACA.
        • Feb 11 2014: Bryan,
          I am going to assume this was directed by you, to me.

          "6 hours ago: In other words, someone has just been blindly parroting political gabblegabblegabble and can't back it up with hard facts."

          Your ability to correct needs foundation.
          When you can supply such, please try again.
          Valid comments are welcome.
          Thank you.
      • Feb 5 2014: Really? "For the 99%"? Please provide the SPECIFIC CITATION for the SPECIFIC SUPREME COURT DECISION that used such a justification. Go ahead. Do so. Or are you just a political parrot who has not actually read the Supreme Court decisions?
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          Feb 10 2014: I just said above, that I am not aware of any SCOTUS decision that cited the General Welfare clause. However, here is one for you. How many challenges to laws passed that were for the "General Welfare" .have been successful?
  • Feb 22 2014: I believe the framers of the constitution anticipated the level of corruption in our legal system as a whole, not just the Supreme Court. As far as abortion, it's no different than any other social issue that's upon us. Rape, pedophilia, sex trafficking are crimes committed mostly by men against women and children. Most judges in most courts, county, state or federal are men. How could they possibly recuse themselves from issues involving women's rights.

    We have to have Judges who have been properly vetted and not above reproach. A term limit of 30 years is needed to keep the power of the political parties from unduly controlling the views of the courts. Interpreting the law is risky as getting off tract by even 1 degree eventually leads to a whole different place than intended. I believe the latest act of the senate to use a nuclear option in appointing a judge was a blatant disregard for our constitution and the balance of powers. What happens with one party will soon happen with the other.

    Men make up the majority of our government and only half the population. The law is the law and when we find judges breaking or usurping the law for political purpose they deserve whatever punishment is at hand.

    We can use some updates in the Judicial branch!
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    Feb 17 2014: Not so well, recently. It's more than gender bias. see http://www.washingtonpost.com/opinions/supreme-court-needs-to-set-out-a-process-to-handle-conflicts-of-interest/2012/03/16/gIQABAYQUS_story.html

    The founding fathers had some pretty tough standards for a resilient rule of law. Monied interests, but especially corporate interests have recently exacerbated the problem of impartiality.
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    Feb 15 2014: If you call this a conflict of interest, 99% of the what Supreme Court does is a conflict of interest. Ruling on matters that they have no direct relationship.
  • Feb 14 2014: Hello Frank and thanks for the reply.
    On your first point: Chief Justice Roberts authored the Majority Opinion (and of course it was his vote that broke the 4 - 4 tie). The three points I mentioned are taken directly from the Majority Opinion. I apologize for not making that clear.

    Additionally, the Majority Opinion claims the Anti-Injunction Act does not apply because not having health insurance is a penalty -- not a tax.

    Interestingly regarding the original question regarding abortion/conflicts of interest; is another portion of the ACA as it concerns states rights. Because 26 states (Florida, et al., Petitioners) are plaintiffs in addition to others; States Rights also came into the picture. Way too much to explain here but I will try to summarize.

    The original Constitution did not contain a Bill of Rights. Some of the framers thought it not necessary. But many did, lead by James Madison. The Bill of Rights enumerates freedoms not explicitly defined in the Constitution. Yes, there are states rights. The Tenth Amendment declares, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people". But, states can make no laws in conflict with the Constitution. The ACA, being approved by Congress and signed into law by the President has been deemed Constitutional. The Supreme Court's responsibilities are not to determine whether the law has sound policies. That is up to the elected officials i.e. Congress and the chief legislator -- The President. Whether one thinks the ACA is a good idea or a bad idea is one thing. The Supreme Court's responsibility was to determine its Constitutionality.

    I agree with some of the other things you stated and would be willing to discuss them. But I am running out of characters and need to take a couple of ibuprofen....Regards, Mike
  • Feb 11 2014: Before, Back in the Day...
    There were 30 licensed Lobbys in Washington DC for the congress. .
    Back in Day...
    There were 130 Lobbys in Washington DC for each of the 535 congressmen.
    Today, your guess is as good as mine.
    Congressmen and Congresswomen are for the most part Millionaires.
    They have to be, just to compete for re-election.

    It is their Leadership that selects and leads the vetting and voting for
    supreme court Justices.

    Has anyone ever wondered if the supreme court itself, justices, employees,
    has been, or is being lobbied?

    If you think I'm writing about graft, money, and other incentives, you are right.

    And each State government is just a small copy of the Federal one.
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    Feb 4 2014: Richard,
    Thanks for an interesting conversation. Hope you receive the responses that satisfy the intent of your question.
    • Feb 11 2014: I doubt it. From the tone of the original post, what the querant really wanted was "How do we exclude men from ruling on abortion?"
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        Feb 11 2014: Bryan, I hope you are wrong. That would be a foolish question. I think Richard was looking deeper.
        But, the response to your interpretation is... We get an all female Supreme Court.
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    Feb 3 2014: Richard, I can only offer my opinion. The manner that we appoint SCOTUS judges almost begs of conflict.

    First the seated President nominates the judge ... would any seated Dem/Rep nominate a judge that was not either Liberal or Conservative of course not. This is a political appointment. Therefore sponsoring conflict from the beginning.

    Second the confirmation of a judge is for life ... So if I am 80 years old and "my" party is in office and I know I have failing health I would submit my resignation and allow the President of my party select a replacement thus stacking the vote to be either Liberal or Conservative.

    I find it very interesting that the "Constitutional" decisions of the SCOTUS have followed party lines in almost every case. As for the ACT decision swayed by John Roberts ... how letting the federal government into private enterprise as a tax is a question that has never been answered. That appears to be the most obvious political vote ever.

    On reflection we should ask questions such as 1) should there be a minimum and maximum age for SCOTUS. 2) If we returned to a Constitutional government what would be the duties of the SCOTUS ... what issues would come before them. 3) Has SCOTUS infringed upon the rights of states to self govern.

    Roe versus Wade was a religious issue that was fought in the bible belt ... what if it were fought today in either the East or West coast extremely Liberal areas .. say San Francisco ... and reviewed by the stacked Liberal court system. How would the law read?

    This demonstrates the importance of the seated president in control of the appointments ... it is all about money, power and politics.

    Be well Bob.
  • Feb 2 2014: Mike Colera 30+

    Ahhh, the ACA. A sore point Mike. I am a firm believer in Taxation.
    The absence of a Taxable Healthcare Program is a burden this nation will regret.
    The only positive I can see, is that the IRS Penalty might focus on the need to insure. Highly doubtful.

    The reason for Health Insurance in the first place was that socialized medicine was seen as and sold to
    the public by the government and media, as some sort of communistic type bad deal. Back then, most
    Health Insurance was in the form of Disability Income and single party Hospitalization Payments. During
    the Great Depression, Many of today's leading Corporate Health Insurers were bankrupted by claims for
    Disability Income. Injuries sustained falling from a horse being the leading cause of claims.

    Industry's developed a need for Highly Trained Employees. To proselyte competitor's trained employees,
    the carrot used was "group health insurance". Any thought of a national healthcare program was left to
    twist in the wind. Unions found a new way to recruit membership and collective bargaining was off and
    running. Corporate Health Insurers had long since forgotten the Armstrong Hearings of 1905, and they
    made a practice of denying every claim, partially or fully. Since the individual states governed Insurance,
    the Supreme Court stood mute.

    Mike, you are right -- The Republicans would never have passed the ACA. Remember Clinton had Hillary
    do the same as Obama did. She called in all the Corporate Health Insurers to help her determine a plan.
    The Congress shot that down. They were a bit smarter back in the day.

    Obama has been a disappointment. A great salesman, great fund raiser, but a lousy performer. Oh, well.
    • Feb 13 2014: The Supreme Court's decision in favor of the ACA is based on the ACA mandate being a tax. As per the text of the SCOTUS decision:

      1.) "First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity".

      2.) "Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one. Second, Congress's ability to use its taxing power to influence conduct is not without limits".

      3.) "Third, although the breadth of Congress's power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior".

      So, the reason SCOTUS upheld the ACA is because it is a tax.
      • Feb 13 2014: Michael, I believe I read a somewhat different passage from
        the Chief Justice's Guardian or NYTimes article explaining why
        he voted to subject us all to the IRS penalty clause. This was the
        week just before he left for his vacation on (if memory serves me)
        the Isle of Man. The Chief Justice wrote that he didn't believe
        it was a tax.

        If I am wrong, and I sure could be, I must apologize.
        This Penalty Business can be deadly. Can we look back a bit?

        In 1974 the ERISA retirement act was passed and deposits were
        locked away by banks and congress insured their being there
        by imposing a IRS penalty of 10% of amounts withdrawn
        before age 59-1/2.

        Let us look at how that worked. The Banks using full page ads
        nationally, solicited ERISA deposits. ERISA restricted Bank's
        risky investment to a piddling 10 or 15 percent. Another of
        Congresses Safeguards.

        From 1974 through 1994, Lobbyists in Washington grew from
        130 Lobbyists for each of the 535 members of Congress, working
        hard on each new Congress to snip away Banking Regulators and
        Regulations. 20 years of snipping brought to Wall Street the ERISA
        savings retirement and mortgage monies through bank deregulation.

        Moving into 2007 --
        Wall Street Financial Banking and Mortgage Insurance investments,
        aka: incomprehensible securities, sucked the nation's banks dry.
        Special Auditors went throughout the nation finding devastation.

        Wall Street Financial Banking and Mortgage Insurance investments,
        became Impenetrable by regulators., Inconceivable by the public.
        Mystifying to the Media. Opaque, Puzzling, and downright Unfathomable
        to Presidents Bush, and campaigners Obama, and McClain.

        Hello, Hank Paulson, "the sky is falling" Bail Out the banks he advised.
        and Congress opened the Treasury to the rapist's. With the NYFED
        running our Treasury, Wall Street and Bank's across the pond had a field

        Do you think lightning will strike twice? Health Insurance?
  • Feb 1 2014: Let's extend this further. Laws that impact the wealthy should only allow rich judges to rule on them! Same principle. Laws that impact giant corporations should only allow judges who are board members of giant corporations to rule on them!
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    Jan 31 2014: Here from Cornell Law School is a good statement of how to think about judicial conflict of interest: http://www.law.cornell.edu/uscode/text/28/455

    For any issue, this allows for an analysis of whether any particular judge would be expected to recuse himself.
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    Jan 30 2014: Abortion is a family issue not a political one. It's only used to garner votes. Remember to give thanks to your parents for not aborting you.
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    Jan 30 2014: Speaking of observations... my favorite is: If a man went though at conception what a women goes through at gestation...we wouldn't be having this conversation.

    However, after all these comments, the Constitution still doesn't deal with conflicts of interest by the Supreme Court, in spite of the issue of abortion.
    • Comment deleted

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        Jan 31 2014: I have read the Constitution rather extensively and I am not sure I fully understand it. Having said that, I haven't found a passage that addresses the conflict of interest
        I have heard of General Butler and his remarks and as a combat veteran myself I can understand his "dislike" of war. No one who experienced combat likes war. But, I can't make his connection that business was the prime causation. It would mean that there is no integrity in the highest offices of the Federal Government..
    • Feb 1 2014: In the issue of abortion, a WOMAN would have a "conflict of interest", not a man. A "conflict of interest" means that you have a personal stake in an outcome. IT DOES NOT MEAN THAT YOU HAVE NO CONNECTION TO THE OUTCOME!!!!!!!!!!!!!!!!!!!!!!!! HOW HARD IS THAT TO UNDERSTAND?
  • Jan 29 2014: Its the American way
  • Jan 27 2014: It uses the time honored methods of denial coupled with large financial donations.
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      Jan 29 2014: OMG, Did some justice get bribed?
  • Jan 27 2014: It doesn't.
    You're welcome.

    Really, it doesn't. I also doesn't deal with conflicts of interest for members of Congress, conflicts of interest for the President, or conflicts of interest for ANY OTHER FEDERAL OFFICIAL, ELECTED OR APPOINTED. What next? Black justices shouldn't be allowed to rule on anything that affects white people?
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    Jan 26 2014: I am at a loss, how do I address this question...
    Well, the Constitution doesn't deal with this issue.
    Further, I would believe that the issue of abortion was not considered in the construct of the Constitution.
    Then, I can not think of any reason for any Justice not to vote on any issue.
    Of course, Justices have the opportunity to recuse themselves.
    So, what's the question, again?
    • Jan 27 2014: What's the question?
      "How do we restrict and constrain the court so it only produces decisions that *I* want?"
      That's the question.
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        Jan 27 2014: OK, but what about the decisions "I" want?... I am probably older then you...( I am older then a lot of people) so I should get my decisions first.
  • Jan 26 2014: Maybe they thought about it, but only as it affected men.

    The founding fathers never thought women would participate in the legal system except as chattels. When the Constitution was written, women couldn't vote, own property, open a business, use birth control, which was illegal in most states, and their earnings and inheritances were controlled by their husbands or male relatives. All legal decisions concerning the lives of women were made by men.

    The SC was not expected to have women justices, and though the Constitution's authors were brilliant, many owned slaves and considered women to be similar property. Dolly Madison's plea to her husband to "remember the Ladies" when writing the Constitution was ignored in the Declaration of Independence and the Bill of Rights.

    Women did not even have control over their children.

    Unless she had a midwife, when a pregnant woman's life was at risk, the decision to save her or the child was entirely up to her male relatives and male doctor.

    No one knows what the SC would have done with the Texas case of the brain dead, pregnant woman whose body was kept artificially breathing and fed for months to temporarily sustain an unviable fetus against the wishes of its mother, father and grandparents. They didn't hear the case, and never considered the long, ghoulish arm of Texas law.

    If the anti-abortionist movement is religious (abortion is not mentioned in the Bible) then religious Judges like Scalia and Thomas who think their religion is more "right" than their vows to uphold the Constitution, will ignore the First Amendment: "Congress shall make no law respecting an establishment of religion, or restricting the practice thereof."

    Too bad we have no way to keep them from voting on religious issues like abortion. They have to voluntarily recuse themselves. Not much chance of that.
    • Jan 27 2014: So, if men are automatically disqualified from having any say in "women's issues", then WOMEN MUST BE DISQUALIFIED FROM HAVING ANY SAY IN "MEN'S ISSUES".

      Let me guess--there is no such thing as a "men's issue" in your little world. Women get to have special set-asides, but not men, right?
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      • Jan 27 2014: Abortion is not a women's issue. Men often pressure women to have abortions, some beat pregnant women so they lose the child, and some rape women to force them to have their children.

        Your "little" rant is probably because I named two male SC Justices who have voted religion over the constitution. Perhaps it will calm you to know that I would also oppose Ms. Sotomayor deciding a religious issue if her religion makes her break the constitutional ban on "law respecting an establishment of religion."

        You have imagined that my comment is anti-male, when it is simply pro First Amendment. Our constitution is strongly anti government support of religion.

        I am curious as to what men's issues you think rise to the level of importance and controversy of abortion rights.

        Describing my world as little is a such a cute, traditional way of insulting women, but you are ignoring the most vocal opponents of abortion, who are themselves< tadah>: women. They should also recuse themselves from deciding the religious rights of other men and women.

        Many religious laws come before the court, but the question posed here was limited to abortion.

        A judge who does not recuse her or himself from cases where he or she is unable or unwilling to put the sworn duty to uphold the constitution ahead of all religious doctrine should be impeached.

        This applies to decisions about many religious questions, like falsely teaching kids that evolution is not proven, or providing tax payer money to religious schools or federal tax payer grants to religious organizations that force people they assist to listen to or agree with religious teachings.
        • Jan 27 2014: I haven't read a single thing you posted until this moment. I know nothing about you whining about various specific judges. I'm trying to explicitly highlight the silliness and absurdity of demanding that judges be prohibited from hearing or ruling on cases unless they have a set of specific "requirements" in addition to being judges. If judges cannot be trusted to rule according to their best judgment, then we should simply throw out judges and appeals, altogether.
    • Jan 27 2014: You have a word wrong in your quote of the 1st. "respecting" not "supporting".

      The Constitution made no mention of who could and could not vote, leaving that up to the states to decide. You are correct in that no state allowed women to vote.
      • Jan 27 2014: Thank you. You are, of course, correct.
  • Jan 25 2014: The Constitution is not really clear on exactly what the job of the Supreme Court is. Article III, which establishes the SCotUS says that the Supreme Court, and other inferior courts established by congress, shall be in charge of all trials, but then goes on to say that the trials will be by jury. This sets up the Supreme Court as pretty much just a court of appeals.

    It wasn't until Malbury vs, Madison in 1803 that the Supreme Court ruled that its job was to interpret the Constitution, though that power is hard not to infer given its position as the ultimate appeals court and the tenants of British Common Law that underpins the United States Judicial System. (All rulings of an equal or higher court become body of law, until the laws are changed or overruled by a higher court. Since there is no court higher than the SCotUS, all its rulings remain body of law until the Constitution is altered.

    But to answer the question, no, the Constitution does not address when a justice should recuse themselves.

    It could be argued that they justices should use the normal standard, which is that the justice have a personal financial stake in the outcome, an affection toward one of the people involved in the case or some other conflict of interest that would prevent them from issuing a fair decision based purely on the body of law..

    And in there, we find the point that makes the point of your comment moot. You seem to assert that male members of the court should recuse themselves on matters of abortion since they can not ever become pregnant. There is no precept in law that saws a judge should recuse if hey DO NOT have a stake in the outcome. Quite the contrary. They recuse themselves when they DO have a stake in the outcome. Therefore, a pregnant female judge that is anticipating having an abortion is the one that would have the conflict of interest, and therefore would be the one that should recuse herself.
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    Jan 24 2014: The SC does not rule on morality, or even guilt or innocence. It rules almost exclusively on issues of constitutional interpretation. There are some other tasks like suits between states and such but most of the famous rulings we hear about are determining the constitutionality of a law or of a lower court ruling.

    A SC Judge may oppose abortion or any other cause de'jour but that fact should have no influence on their interpretation of the constitutionality of an issue before them. They are human, of course, and their beliefs may sway their interpretation. But that's where the wisdom of the founding fathers steps in. There are 9 judges appointed for life and usually by various presidents (an odd number) to counter balance each other.

    So far that system has worked very well. I stand in awe of the work of the court over the last two centuries.
  • Jan 24 2014: Are you asking if the Justices who are members of churches that are against abortion recuse themselves?
  • Jan 23 2014: The constitution isn't quite as infallible as some would have you believe. It was written quite a few years ago, in a time where there weren't many other democracies to learn from, and by a group of men who were just that--men, not gods.

    The supreme court's most important attribute, without which it would have probably been sidelined long ago, is its ability to strike down laws. This is actually a right it gave itself, the constitution makes no mention of it.
    And while the supreme court has a lot of problems, I don't think women's rights are one of them.

    And yes, a male justice should be able to vote on abortion issues for the same reason a justice whom owns a house should be able to vote on matters of the homeless. Their authority isn't defined by subjects personally related to them, and for good reason.
    • Jan 27 2014: Given that the rules of recusal (principles, if not actual rules) follow the premise of "If I have a personal interest or stake in a matter, I should at least consider recusing myself.", then the legally ethical route to follow would be that justices who cannot get pregnant should not recuse themselves while justices who can get pregnant should recuse themselves, since they have a personal stake in the matter and cannot be presumed to rule in a perfectly even and uninfluenced fashion.

      After all, do we not demand that a judge with interest in a corporation recuse himself if a case comes up involving that corporation? Thus, a judge with a personal interest in going through pregnancy should recuse herself on a matter that involves pregnancy! Whee, this game is fun!
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    Jan 23 2014: Since Roe vs. Wade was decided in favor of women's right to choose, I'm not sure how this is an issue.