Is Elena Kagan a Sadist?

Supreme Court Justice Elena Kagan has granted Illinois Attorney General Lisa Madigan’s (if you think that surname is a coincidence guess again) request for more time to file a writ of certiorari to appeal the Illinois Supreme Court’s decision on the public pension case to the Supreme Court of the United States:

In an action that’s going to set some tongues wagging, the U.S. Supreme Court has cleared the way for a possible appeal of an Illinois Supreme Court decision in May that rejected a state pension reform law.

The action came yesterday when the court granted a request from Illinois Attorney General Lisa Madigan to extend from Aug. 6 until Sept. 10 the deadline for asking the court to take up the matter, a legal step known as filing a writ of certiorari.

The request for more time was granted by Justice Elena Kagan, who reviews such requests from Illinois and other states in the federal 7th Circuit. Kagan did not indicate why she approved the application.

What possible basis would the SCOTUS have for overturning the decision? Being “routine” doesn’t seem to me to be enough justification. Shouldn’t some actual basis for an appeal be a necessity? Gen. Madigan hasn’t even filed for cert yet, she’s just wants more time to do it. Why? If this is just a “Hail Mary” on Gen. Madigan’s part, why delay matters? It just makes the final reckoning that much more difficult and costly. Has “we really, really want it” become legal grounds? Or does the SCOTUS now think that carrying water for Illinois’s feckless legislators is their job?

3 comments… add one
  • ... Link

    Yes, “we really, really want it” has become justifiable legal reasoning, so long as it’s the correct “we”. It’s somewhere in the emanations & penumbras.

  • PD Shaw Link

    The request contained a brief discussion of the federal issue:

    The case “raises important issues regarding the reserved powers doctrine of the United States Constitution, which prohibits a state from surrendering ‘an essential attribute of its sovereignty,’ including’ its ‘police powers’ to modify contractual obligations…in particular when exercising those powers is ‘reasonable and necessary to serve an important public purpose,’” wrote Illinois Solicitor General Carolyn Shapiro.

    The attorney general’s filing says the two central questions are:

    — Whether the reserved powers doctrine prevents a state from abdicating its police powers authority to modify its own contractual obligations in extreme circumstances that impairs the general welfare, and:

    — If not, whether the state Supreme Court identified the correct standard in judging the validity of the state exercising its police powers.

    Link

  • My point was that if the state’s constitution may be abrogated when convenient then there is no state constitution. What defines “extreme circumstances that impairs the general welfare”? Without a strict limitation the state’s constitution is completely vitiated.

    Additionally, the provision in question has been in place since 1976 when that constitution was adopted. As the Illinois Supreme Court found, is it not obvious that the clause in question was adopted to prevent future legislatures and future AGs from making the claims that they’re now making?

    IMO no delay should be have granted and if submitted the request for cert should be rejected out of hand and on an expedited basis. The legislature has created its own problems and it needs to get itself out of them.

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