Tag Archives: Supreme Court

Justice Ginsberg: please resign before the 2014 elections

(PLEASE NOTE: Ginsberg is my favorite Justice – she’s smart and savvy and full of mischief.)

It’s futile to pretend any more that the Supreme Court is non-partisan. Justices are people (the human, not the corporate kind – at least not yet) and don’t have identical values or beliefs. Their perspectives – on law, history, social justice, the U.S. Constitution – are informed by cultural identity, ethnicity, education, religion and probably gender. This has always been true.

Of course a Court is, ideally, charged with rising above the personal and interpreting the law. But we don’t get ideal; we get nine mere mortals who must somehow work it all out and render ‘judgement’ on a legal appeal.  (Note to Scalia: judgement involves judging. All things are not self-evident.)

Today’s Court isn’t doing too well with that ‘rising above’ thing. A lot of decisions are nakedly political and too much of the time we have 5 to 4 votes favoring the Right. Also:

  • The 2014 elections could very well change the majority in the Senate.
  • Justice Ginsberg is the oldest person on the bench and will be 81 in 2014.
  • Justice Ginsberg, while mentally acute (unlike Scalia, the next oldest), is physically unwell and has had cancer more than once. Her health could decline further.
  • A Republican Senate can deny Obama a majority on any Supreme Court  nominee. (UPDATE: James reminds me in comments that confirming a Supreme still requires the ‘super majority’ of 60 votes, but still . . . )
  • If Republicans take the White House and hold the Senate in 2016, that doesn’t bear thinking about.

She and Scalia have for decades enjoyed a close friendship, so perhaps they could make the leap together – before 2014. Solidarity and all. (A bit of trivia – after Reagan nominated Scalia in 1986, he was confirmed by a Senate vote of 98-2.)

What will The Nine sayeth?

As those who give a damn wait for the Supreme Court to wrap up this session and announce their final decisions, I dare to repost my own predictions. Know that I bravely put these out here so that you may bow to my majesty if I’m right, or mock me without mercy if I’m wrong.

  • DOMA – The Supremes knock it down as unconstitutional
  • California Prop 8 – unconstitutional
  • Affirmative Action – limited decision, but basically will say the program has – in some instances – run its course. They side for the Plaintiff.

The next big story

Life will go on. Sandy will pass and elections will conclude too. And damage will be done all around. But the world will still turn, especially up in that big white palace of justice in DC. Details at scotusblog, here.

Exactly: “The Roberts Court is born”

And this is why I always thought the Chief Justice would find a way to uphold Obamacare.

 Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism.  Roberts peered over the abyss and decided he didn’t want to go there.

Roberts’ decision was consistent with his confirmation hearings pledge to respect the co-equal branches of government, push for consensus, and reach narrow rulings designed to build broad coalitions on the Court. He promised to respect precedent. His jurisprudence, he said, would be marked by “modesty and humility” and protection of the precious institutional legitimacy of the Court.

Today, the institutional legitimacy of the Court was buttressed. President Obama wasn’t the only winner at the Supreme Court today. So was the Supreme Court itself.

So this case was the one where he finally decided to adhere to those oft stated principles, which he’s previously ignored. But he has also expressed the hope that he could loosen the partisan divide on the Court, reduce the number of 5-4  votes, and has said he would like more unanimous decisions.

Need some entertainment? FOX News has it for you now!

They never disappoint. I’m told the Dow Jones started tanking minutes after Roberts announced the Cout’s decision.

I misseed Napolitano but he’ll be back. Can’t wait.

Anything else you want to ask me?

It’s been an unbloggy week, but I think I managed to say this on Monday:

(I’m staying out on my limb – I think Roberts votes for Obamacare. And if he does, so does Kennedy.)

Yup. That’s what I said. Gotta go. CNN’s calling.

(Whoops. My bad. Kennedy dissented.)

Oh no, oh please no . . .

. . . please let it get better.

I’ve just begun listening to today’s oral arguments in the Supreme Court – up first is the US Solicitor General. And he is just terrible. He is so so terrible. I haven’t heard a single legal argument from him yet, it’s all defensive. He’s halting and gets a bit off track. Yikes.

I hope it gets better. If it doesn’t, the Justices are going to walk all over him and it’s going to hurt the case.

Supreme Court days

I plan to listen to as much of the oral arguments this week as I have time for. I’ve listened to a few of these before – at the Circuit Court level too – and they’re surprisingly engaging,  even for a non-lawyer. There is, in this country particularly, majesty to the law. Listening to the petitioners make  their cases and then engage with the justices in the finer points of the law and the Constitution gives one an appreciation of how it is we have, no matter our politics, remained ‘a nation of laws’ for two-plus centuries, a nation that’s chosen to be governed by the law

Today’s argument is whether the Court can even hear the case against the mandate yet, since it’s not been enacted. It’s possible they’ll shut it down for now and will return to it after the law goes into effect. Something about you can’t challenge that which does not yet exist in fact.

If, however, they decide that yes, the case can go forward – which I think they will (why else schedule three days for argument) – the meat of the argument starts tomorrow, when they actually take up the matter of the constitutionality of the law.

I think they’ll uphold it. And I think they’ll do it by better than 5-4. It could even be 7-2, with just Alito and Thomas against. Which, of course, will mean the end of freedom.


Want to guess the outcome?

Another big case for the Supreme Court this session: they’re going to look at a case with . . .

. . .  the potential to undo an accommodation reached in the Supreme Court’s 5-to-4 decision in 2003 in Grutter v. Bollinger: that public colleges and universities could not use a point system to boost minority enrollment but could take race into account in vaguer way to ensure academic diversity.

Justice Sandra Day O’Connor, who wrote the majority opinion in Grutter, said the accommodation was meant to last 25 years.

Kagan has recused herself because her office at the White House was involved with this a few years ago. So that makes for a 5-3 conservative majority, a majority by the way that is entirely Catholic and entirely male (that seems to be the theme of the day, doesn’t it..

Impatient, aren’t they.

No court can rule to uphold a law that actually eliminates an assumed right

California gets it right.

LOS ANGELES – A federal appeals court panel ruled on Tuesday that a voter-approved ban on same-sex marriage in California violated the Constitution, all but ensuring that the case will proceed to the United States Supreme Court.

I’ve a dress put away (it’s getting rather dated) to wear on the day Ed and Steve can get married. I do think 40 years is a long enough engagement, don’t you?

“This is a huge day: The United States Court of Appeal for the Ninth Circuit, which represents nine states and certain territories, has decided that Proposition 8 is unconstitutional,” said Theodore B. Olson, one of the attorneys representing the American Foundation for Equal Rights, which challenged Proposition 8. Speaking at a news conference here Tuesday morning, Mr. Olson said he was now “very confident” the Supreme Court would uphold this decision and nullify the voter initiative.

Olson is partnered with Atty. David Boise in this suit. Remember those guys? They  were the opposing counsel who argued Bush v Gore in the Supreme Court. They’re on the same side in this one. Adversaries one day, partners another day – that’s as it should be in our civic life. This suit was filed three years ago with the stated intention of taking it to the Supreme Court. So far, so good.

(Are crinolines back in style?)

This is killing us

A C-SPAN guest this morning noted, in a “in other news, the sun came up this morning” tone, that “the President’s fundraising this quarter is expected to be down; he had to miss ten fundraisers last month because of the debt ceiling talks”.  Ten fundraisers?? So how many are scheduled for August guys? Twenty? How about thirty?  August has thirty one days, so that way he could spend a day at the desk.

During which days by the way, our Congress will be doing the same thing.

Maybe we should go show the Supreme Court what it looks like when real ‘citizens’ are ‘united’.

Antonio, Antonio, was tired of living alonio*

Here cometh Justice Scalia, that brilliant misogynistic father of an astonishing number of  offspring, a Catholic-too-far, friend of Opus Dei, king of the hill.

There’s a great deal to admire about a man of such stature: a good husband, a loving and supportive father I’m sure, a famous wit, a lover of opera and best friend of Justice Ginsberg – a solid citizen in every way. He worked hard to learn the law and became one of the best 19th Century constitutional minds in the country and  he is a disaster on the Supreme Court of America in 2o11.

Oh – did I say he is, all too often, a genuine misogynist? Yeah, I did. But can’t say that enough.

The Washington Post reports on Scalia’s interview with Catholic Lawyer. (Can’t wait to see what the National Catholic Reporter has to say on this.)

But  I’ve never heard him actually go this far before!

Scalia: Constitution does not protect women against discrimination

(He thinks anti-discrimination is not a constitutional matter, that it’s better that  fickle legislatures take care of little things like equal rights – according to however those legislators might be feeling or moved in any cultural moment. State by State.  He believes that only male rights (white male I’ll assume) are actually embedded in the Constitution and all those pesky Amendments weren’t necessary.)

The man himself speaks: “In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation . . . “

*child’s poem, here.

I think it’s about Kennedy

Listening off and on to the Kagan confirmation hearings. Everything I hear (except from the old misogynist Jeff Sessions) reinforces the portrait of a consensus builder, a master negotiator. 

I’m beginning to think that Obama named her to target Kennedy who has become the swing vote since O’Connor’s retirement. He’s more conservative than she was, but he’s traveled around the spectrum quite a lot since he was appointed. For instance, that conservative bugo-a-boo, horror of teh foreign law – Kennedy expresses a deep understanding of that in recent years. 

Got an eye on you Mr. Justice Kennedy

 Kagan for Kennedy? Makes sense to me. A reliable liberal most of the time installed to turn someone else into a sympathetic vote more of the time.

Kyl on Kagan

‘Results-oriented’ jurist. What happened to ‘activist judge’?

Writing the platform and running for office on CSpan 3!

More of this please

Any day now, the President will send a name to the Senate for Advice and Consent (don’t hear that archaic yet proper language used much anymore) to appoint a new Supreme Court Justice. In preparation, the GOP is practicing their harmonic ‘No!’

Two weeks ago, the NY Times carried an op-ed  by Linda Greenhouse on retiring Justice John Paul Stevens. In it she quotes Stevens from a 2005 forum at Fordham Law. Stevens said “Learning on the job is essential to the process of judging.” To his detractors that’s probably proof positive of constitutional crimes or something. To the rest of us, who live in a real world, those words are evidence of a wise and adult human.

She notes “John Paul Stevens never lost his willingness to test his instincts against his observations.” More common sense from Stevens. To the right however, who seem to think Justices can and should freeze their legal thinking in 1787  ignoring the intervening centuries, that’s more to say ‘No!’ about.

There is no such thing as constitutional originalism. The Founders would have had a good belly laugh at the idea that the broad language of the Constitution they constructed was being viewed in such a rigid fashion. They were an educated lot – like Stevens. And, like Stevens, they allowed for reality.

Well, isn’t that special

They are running for office. They want to uphold the great American tradition of “‘privatize the profit, socialize the losses.”

Someone had to do it.

Who doesn’t like being right?

On September 27, I said , speaking of my brother in law:

I often call him in distress over such essential things as the Supreme Court and how it’s about to legitimize corporate control of the political life of this nation.

“American suicide”

That is how a fellow blogger describes what the Supreme Court did last week.  He has a lot of good reading on the subject, so drop by CatchtheLatest. (Also known in these parts as macandcouch and talkandpolitics.)

We’re not in Kansas anymore

The scales of justice. The promise of America. One man, one vote. Equal opportunity.

And now we have – what? – we have Thursday’s Supreme Court decision that cavalierly created an expanded definition of free speech. It gave corporations the constitutional right to directly campaign for or against political candidates and spend unlimited money doing it.

I’ve been trying to organize my thinking about this and write something coherent. But my outrage kept turning it into a rant, which isn’t my style. Now, having read and listened to the arguments pro and con (mostly con), I find two things missing from the discussions.

Number 1: Money – the amount of it.

Equating the potential access and political effectiveness of for-profit corporations with unions and advocacy non-profits is preposterous. And yet we hear it everywhere – ‘it’s not just the corporations! Unions can do it too! And the Sierra club’! So it’s fair!

No. It isn’t. Consider: today, in terms of percentage of donations, unions for instance are heavy hitters, often ranking near the top in some Democratic campaigns. But now, after this very un-democratic ruling, it will no longer be a matter of the percentage of money, it will be a matter of HOW MUCH money.

Unions and non-profits do not have access to anything near the billions in profit in the for-profit world. And industry wide, it’s often trillions in profits. Oil and finance alone could leave every advocacy group in the US gasping for air.

That could be what the Sierra Club competes against. And according to the defenders of this dreadful decision, that’s equal. That’s speech – available to us all.

Number 2: Nationality, allegiance to and who is the person anyway

Corporations have no nationality. Or moral imperatives. They have a single obligation – stay alive and make money for their shareholders.

Their shareholders are not all people. Their shareholders are not all American. Nor must they be. Many of their shareholders are investment funds, pension funds etc from all over the world.

Will we see a rush of foreign corporations rushing to our shores to create new subsidiaries – incorporated in the US of course – so they can have political ‘speech’ too?

Roberts and Alito are young. Even Scalia and Thomas are younger than their liberal counterparts. I guess we may expect more of this.