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The Supreme Court

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Now Matters are Worse.

“Really, it’s weird. The man takes the Metro to work, and yet he handily dismisses what every human American knows to be true: That if dollars are speech, and billions are more speech, then billionaires who spend money don’t do so for the mere joy of making themselves heard, but because it offers them a return on their investment. We. All. Know. This…[But] since the chief can find no evidence of silky burlap sacks lying around with the Koch brothers’ monogram on them, it must follow that there is no corruption — or appearance of corruption — afoot.”

Here we go again. Dahlia Lithwick looks over the Court’s disastrous 5-4 decision in McCutcheon v. FEC [opinion] — a.k.a. Citizens United all over again — and the corrosive effect it will have on public confidence in government. “[I]n a kind of ever-worsening judicial Groundhog Day of election reform…the Roberts Five has overturned 40 years of policy and case law, under an earnest plea about the rights of the beleaguered donors who simply want to spend $3.6 million on every election cycle.”

Lithwick: “Guilt By Association.”

“Once upon a time in America this was called advocating for justice. But in today’s America, it’s deemed a miscarriage of justice…[A]s of today, you are as guilty as your guiltiest client, and your representation of that client — especially if it is both zealous and successful — is now disqualifying as well. Cop-killers deserve no lawyers and their lawyers deserve no role in government service. It’s not hard to imagine the scorching Fox News headlines, under the new standards set forth by the Judiciary Committee today: ‘John Adams Frees Vicious Patriot-Killer in Boston Massacre.’ ‘John Roberts Unsuccessfully Defends Serial Killer in Florida!‘ ‘Anarchist-Loving Felix Frankfurter Advocates for Sacco and Vanzetti!’ Clarence Darrow! Lover of Killers, Monkeys, and Commies; Disgrace to Legal Profession!.'”

Dahlia Lithwick weighs in on the Dedo Adegbile travesty in the Senate today, wherein, for patently ridiculous reasons, seven spineless Dems helped Republicans spike Adegbile’s nomination for DOJ’s civil rights division. As the NYT’s Jonathan Weisman succinctly put it, “Some have called Mr. Adegbile a ‘cop-killer advocate.’ Another word for that might be ‘lawyer.'”

Reaping the Whirlwind.

On June 26, 2008, the U.S. Supreme Court embraced the National Rifle Association’s contention that the Second Amendment provides individuals with the right to take violent action against our government should it become ‘tyrannical.’ The following timeline catalogues incidents of insurrectionist violence (or the promotion of such violence) that have occurred since that decision was issued.

An isolated incident in Arizona? Um, not so much. The Coalition to Stop Gun Violence offers a troubling timeline of “insurrectionist” violence over the past several years. (But remember: It’s just a freak coincidence that this recent tragedy, and all the others listed above, happened after several years of the GOP purposefully stoking the crazy. Really, we’re all equally at fault, etc. etc. Also, damn shame about all the guns around.)

The Plot Against America.


These records show that while the chamber boasts of representing more than three million “businesses, and having approximately 300,000 members, nearly half of its $140 million in contributions in 2008 came from just 45 donors. Many of those large donations coincided with lobbying or political campaigns that potentially affected the donors.

The republic stands upon the edge of a knife, people. Stray but a little, and it will fall. While the NYT belatedly figures out the Chamber is up to no good in its overwhelming campaign spending — thank you, Citizens United — the Center for American Progress discovers that the vast right-wing conspiracy actually holds meetings(!):

While the Koch brothers — each worth over $21.5 billion — have certainly underwritten much of the right, their hidden coordination with other big business money has gone largely unnoticed…The memo, along with an attendee list of about 210 people, shows the titans of industry — from health insurance companies, oil executives, Wall Street investors, and real estate tycoons — working together with conservative journalists and Republican operatives to plan the 2010 election, as well as ongoing conservative efforts through 2012.

We are Marshall.

Now if I were a gambling woman, I’d wager that most Americans today are not seething with unspoken rage at Thurgood Marshall. And I might wonder at the wisdom of blaming him for what ails this country in the summer of 2010.Slate‘s Dahlia Lithwick reports in from Day 1 of the Kagan confirmation hearings, where the Senate GOP are now earnestly trying to rewrite the history books on Justice Marshall. (Apparently, Orrin Hatch is even hemming and hawing about whether he’d even confirm Marshall now. You stay classy, GOP.)

The Invisible Victim…and the Ring of Power.

No wonder President George W. Bush can now openly brag about the water-boarding policy he once denied even existed. The courts have become complicit in the great American cop-out on torture.” And let’s not forget the Obama administration in all this. Slate‘s Dahlia Lithwick surveys the wreckage from the Supreme Court’s recent capitulation on the Maher Arar case, wherein we, the United States of America, abducted, deported, and were ultimately responsible for the torturing of an innocent man, and are now trying to sweep it under the rug like it never happened. Look forward, not backward! (unless you’re a whistleblower)

In very related news, borrowing the riff from this great cartoon, The Daily Show‘s Jon Stewart finally drops the hammer on the Bushification of Obama on the civil liberties front. Like many progressives, I’m discontented for a lot of reasons with this administration at this moment, but Obama’s egregious record on this front still stands above them all. An end to imperial powers and civil liberties violations of the Dubya era should have been an absolutely non-negotiable aspect of “change we can believe in” — particularly coming from Obama “the constitutional scholar.” And a White House that will capitulate on these basic human rights will capitulate on anything. Which, when you get right down to it, they pretty much have.

Widening the Breach.

The SpeechNow decision effectively widens the field of organizations that can raise and spend money on politics more freely in light of the Citizens United decision, which swept aside decades of legislative restrictions on the role of corporations in political campaigns.

The disaster on the Gulf isn’t the only gusher to worry about. Relying almost exclusively on Citizens United for their reasoning, the three-judge DC Court of Appeals struck down limits on individual contributions to advocacy groups last March, paving the way for even more cold hard cash overflowing the system. [FEC overview.] “The D.C. Circuit’s ruling was the first to apply and significantly expand [Citizens United], which invalidated limits on corporate expenditures in federal campaigns.

I had heard very ominous rumblings about this hearing in the days after CU, but somehow missed that the actual decision had been handed down (Working as intended: It was dumped on a Friday) and only caught it on account of yesterday’s injunction. (Weirdly, there was no press release from CREW, Common Cause, or Public Citizen either, although PIRG was on the case.) The FEC does seem to be looking toward a Supreme Court appeal…but it’s hard to see that turning out very well, is it?

Want to Remain Silent? Speak Up!

“‘A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,’ Justice Kennedy wrote.‘” Breaking 5-4 along the usual lines — Roberts, Alito, Thomas, Scalia, and Kennedy in the majority — the Supreme Court determines Miranda rights must now be specifically invoked. “Justice Sonia Sotomayor, in her first major dissent, said the decision ‘turns Miranda upside down’ and ‘bodes poorly for the fundamental principles that Miranda protects.’

One important note: “The majority ruling is in line with the position taken by the Obama administration and Supreme Court nominee U.S. Solicitor General Elena Kagan. In December, she filed a brief on the side of Michigan prosecutors and argued that ‘the government need not prove that a suspect expressly waived his rights.’” And, given that this administration is currently working to rewrite Miranda to stop the terr’ists, I guess we shouldn’t be too surprised.

Souter: “A Pantheon of Values.”


A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.

In his commencement speech at Harvard over the weekend, former Justice David Souter lays out his judicial philosophy, and thumbs his nose at the originalists he recently sat alongside. “The meaning of facts arises elsewhere and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own. Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page.” (Found by way of Politics Daily’s Andrew Cohen, who gushes about the speech here.)

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