A weekly podcast review of U.S. Supreme Court decisions, grants of certiorari (cases accepted for review) and biographies of justices and nominees to the high Court.

Constitutional challenge to the individual mandate portion of the affordable Care Act at SupremePodcast.com

Older cases at SupremePodcast.com and sampled below:

May 29, 2010, SupremePodcast.com

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Transcript for my May 29, 2010, SupremePodcast.com segment, Lewis v. Chicago:

Lewis v. City of Chicago, Ill. Issued by the Supreme Court May 24, 2010

In a week when the 46 year old Civil Rights Act of 1964 was in the news –Tennessee Senate primary victor Rand Paul having questioned some of the Act’s provisions in articulating his philosophy of government overreach — the U.S. Supreme Court issued a unanimous opinion with respect to application of the Civil Rights Act to the City of Chicago and its fire department hiring practices.

The facts of the case are straightforward:  Chicago offered a test to 26,000 prospective firemen.  Those who achieved a score of 89 and above were marked “well qualified.”  Those who scored between 65 and 88 were deemed “qualified.”  Those below 65 were not qualified.  The city adopted this policy in 1995.  It further decided that only “well qualified” candidates would be hired first as needed.  It kept the files of “qualified” candidates in case all “well qualified” candidates were considered and additional positions were still available.

The city of Chicago continued to apply the same standard drawing from the original pool of “well qualified” candidates for six years, causing a number of potential “qualified” firemen not to be hired although it did select some qualified applicants in the end.

6000 African American candidates who had been rated qualified, but had not been hired, sued the city.

In the course of the litigation, the city stipulated, or accepted, the fact, that African Americans had been severely impacted in a way that was different than other racial groups by the 89-point cutoff.  This is called a severe disparate impact and is recognized by statute as a basis for challenging government hiring policies.  The court of appeals referred to disparate-impact liability as “primarily intended to lighten plaintiff’s heavy burden of proving intentional discrimination after employers learned to cover their tracks.”

At trial the African American group of qualified candidates won their discrimination case.  The court ordered 132 of them to be hired by random selection from the class of 6000.   Back pay for what the 132 would have earned was awarded and was to be split among the other remaining candidates who were not hired.

The city appealed the trial court decision on the grounds that the applicants had not filed Equal Employment Opportunity Commission (EEOC) claims within 300 days of the test date.  The city argued that the statue required claims under Title 7 of the Civil Rights Act to be filed with the EEOC within 300 days of the violation of the law.  The city considered the discriminatory act to be when the test results were given, placing applicants into the “qualified” group, back in 1995. If the firemen failed to file a charge with the EEOC within 300 days, the city was entitled to consider the act lawful.  But the applicants argued that the policy was applied continuously over six years excluding them from advancing in the process and that the 300 day limit should be counted from each time the test results were used to determine which candidates would be called up for further consideration for open positions.

The 7th circuit reversed the trial court, finding the applicants’ claims were time barred.

The applicants petitioned the Supreme Court for review and in a decision written by justice Antonin Scalia the court unanimously reversed the 7th circuit.

The Court decided that in applying the same standard year after year to candidates who had originally “qualified” the city continued the violation such that the claims were filed in time.

The application of the policy had served to deny the firefighters’ opportunity.  The city could not hide behind the claim that their initial decision was all that counted for the purposes of starting the clock on timeliness.

The case was thus not in the Supreme Court on the merits of the discrimination claim and makes no substantive changes in the law on discrimination.  Those issues were decided in the trial court in favor of the fireman.  And the district or trial court decision, being a lower court, has little strength as precedent.  In fact, the Supreme Court sent the case back to the 7th circuit court of appeals on remand to make certain other determinations before final result would be known.

The case may be more significant for its dicta, which is the language and positions of the court not so central to its decision to become precedent but meaningful in expressing the court’s reasoning.  Justice Antonin Scalia used the case to forcefully articulate principles of judicial restraint.

“It is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.

Our charge is to give effect to the law Congress enacted.  Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer’s motives and whether or not he has employed the same practice in the past.  If that effect was unintended, it is a problem for Congress, not one that the federal courts can fix.”

While not surprising, the unanimity behind such a clear statement of judicial restraint illustrates the ascendance of such principles.

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Redefining American:  Constitution and Leadership 2010

Jessica Pieklo and Marc Seltzer

Discussion re Elena Kagan (click to listen)

April 12, 2010 Podcast:  Dems Political Prospects in November

With the November congressional elections in mind, we discuss the Democrats efforts to regain momentum after the passage of health care reform legislation and Republicans attempt to champion a rally against the incumbent government.

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Redefining America:  Constitution and Leadership 2010

Podcast, March 26, 2010

This week the rhetoric heats up:  threats, intimidation and scattered acts of violence.  Can the Republican Party hold it together in the face of defeat?

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February 25, 2010 podcast

February 18, 2010, podcast

Past podcasts:

December 15, 2009, podcast, “Copenhagen’s Promise and Health Care Reform Politics”

December 2, 2009, podcast, “Afghanistan”

December 9, 2009, podcast, “New Spending on jobs vs. deficit reduction”

December 11, 2009, podcast, “Senate health care compromise proposals”


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Political News Headlines December 7 to 13

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Podcast Reviews:

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Health Care Podcast Round up

Several recent podcasts provide enlightening alternate approaches to learning about health insurance issues and Swine Flu (H1N1).

Health care

The clever construction and creative presentation of two audio pieces on This American Life provide insights that are otherwise unavailable in even the best standard news accounts of these subjects.  These shows do not present complete pictures of their subjects, by any means, but the personal examples nonetheless illustrate aspects of the health care system for our benefit. Highlights include brief accounts of the development of private health insurance in the United States, examples of how the spending of health care dollars can be anything but transparent, and a feature on health insurance for pets.  Available in ITunes and through the show website here: Someone Else’s Money and More is Less. Pass the word!

A more typical journalistic account delves into the remarkable change in health care over time and provides food for thought on patients, doctors and costs in the world of modern medicine.  From NPR:  How the Modern Patient Drives Up Health Costs.

Flu news

Two excellent straight-forward interviews by Neil Conan on NPR’s Talk of the Nation with Anthony Fauci, Director of the National Institute of Allergies and Infectious Diseases and Dr. Paul Offit, Chief of Infectious Diseases at Children’s Hospital in Philadelphia, provide clear and thoughtful discussions of Swine Flu and vaccine risks.  Listening to the interviews, rather than reading a few sound bites from them, can give a sense of how the experts look at the risks and choices presented by the current Swine flu outbreak.

Finally, NPR’s Your Health Podcasts offer discussions and reporting on Swine Flu (H1N1) issues in the “Flu, Old and New” episode.  This episode is available on Itunes: NPR: Your Health: Flu, Old and New (October 10, 2009).  I was unable to locate a link on the NPR website.

To continue your research:  http://www.flu.gov/

My October 12, 2009 story: Swine Flu (H1N1) Experts and Bill Maher on the Vaccine and Managing Your Risk

and Taxing Health Insurance Plans from October 13, 2009.

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Conversations on Afghanistan — The Podcast Record

By Marc Seltzer; originally published on December 8, 2009, at care2.com

The writing and blogging about the Afghanistan surge has not captured the emotional tenor of conversations and discussions across the American political landscape.  Recent podcasts reveal the doubt, frustration and despair among many who disagree with sending more troops into the fight. This was evident in KCRW’s Friday, December 4, 2009 podcast of Left, Right and Center, in which Arianna Huffington and Robert Scheer led the attack on the President’s decision with Scheer calling it “cowardly and opportunistic.”  Tony Blankley, the lone conservative on the panel, noted that Republicans, too, have qualms about the new strategy, though the primary complaint has been the fixed 2011 date for beginning a troop withdrawl.

Like few other public acts, a nation’s participation in war elicits fierce emotional response.  However, President Obama’s speech at West Point on the escalation of military operations in Afghanistan was distinctly reserved and sober, reflecting the pain and cost of the decision, rather than themes of patriotism and national unity.  Some thought the President got it about right while others hoped for a more rhetoricly powerful speech.  (See Sheilds and Brooks below).

Slate’s Political Gabfest of December 3, aptly titled The Endless Afghanistan Gabfest, exposed journalists John Dickerson’s, Emily Bazelon’s, and David Plotz’s deep misgivings and consternation about the war.  The exasperation comes through the tone of voice and seeming hesitation to speak, in a way that would be hard to convey without sound.

Politically, it is remarkable that the war decision divided commentators and the public along different lines than the bailouts or health care debate.  In fact, the most ringing endorsement has come from conservatives William Kristol and Fred Kagan, writing in the The Weekly Standard.  Senator John McCain (R-Az) also backed the President’s decision, though voicing concern over the stategic timetable.  Meet the Press, December 6, 2009 (for McCain, and Clinton and Gates below).

Secretary of State Hillary Clinton and Secretary of Defense Robert Gates tried to explain and justify what many have called the most confusing aspect of the strategy, its timetable.  Thus, the Defense Secretary said that the July 2011 date marked only the intended beginning of a “gradual conditions-based [] province by province, district by district” transfer of security to Afghan forces and draw down of U.S. troops, with pace and conclusion of operations dependent on conditions on the ground.  Secretary Clinton suggested that the Karzai government needed to know that it must step up and take responsibility for its own security sooner rather than later, instead of relying on American troops.  .

New York Times columnist David Brooks wrote positively and insightfully about the process of decision-making on the war.  He and columnist Mark Sheilds review President Obama’s leadership and analytic style in a conversation available on the December 4, PBS’ NewsHour.  In addition, the NewsHour’s interview with Admiral Mike Mullen, Head of the Joint Chiefs of Staff pointed out that President Obama’s committment of troops is, in fact, an answer to a long-standing requrest for additional resources going back into the Bush administration.

Mullen: “Now, we can’t be perfectly predictive. Everybody wants to be. We can’t be. But those of us in the military believe we have got to turn this around in this 18 to 24 months. And we think we have got the right strategy, the right leadership, and now the right force levels. * * * And that’s the mission that the president has given us, and General McChrystal, General Petraeus, myself, and others believe that we can execute that and succeed.”

Law professor and Care2.com blogger Jessica Pieklo and I had our own discussion of our impressions of the President’s speech and its implications.  That conversation is available here.

Finally, journalist Bill Moyers and Vietnam veteran and renoun filmmaker Oliver Stone wrestle with the question of why Obama made the decision and express their doubts and disappointment on Bill Moyer’s Journal. Video of December 4, 2009; audio-only link at right.

Reminiscent of the surge in Iraq, the military will be sending an additional 16,000 U.S. soldiers before the end of 2009 followed by another 16,000 or so in 2010.  Our coalition partners have pledged an additional 7,000 troops already and more may be offered over the next month.  The debate will no doubt continue, but the President’s decision began implementation on the date of the West Point address, and his commanders are looking for results within a fairly short period of time.

Follow me on Twitter and view my other stories on Afghanistan:



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