“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.)
“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.)
“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.
“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?
“‘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.
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.)
Well, that’s the trick, isn’t it? Particularly that she’ll be replacing the irreplaceable John Paul Stevens. In any case, President Obama has made his second pick for the Supreme Court, and it is his Solicitor General and former Harvard Law Dean Elena Kagan. “As solicitor general, Ms. Kagan has represented the government before the Supreme Court for the past year, but her own views are to a large extent a matter of supposition.“
Making the progressive case for Kagan: Larry Lessig, an old friend of hers: “The Kagan I know is a progressive…[T]he core of Kagan’s experience over the past two decades has been all about moving people of different beliefs to the position she believes is correct. Not by compromise, or caving, but by insight and strength. I’ve seen her flip the other side.” Lessig expounds on this coalition-builder argument here: “To hear the liberals talk about it, it sounds like they think we need a Thomas or Scalia of the Left…But nobody who understands the actual dynamics of the Supreme Court could actually believe that such a strategy would produce 5 votes.” (To which one must ask, really? Who’s gonna flip?)
Making the progressive case against Kagan: Salon‘s Glenn Greenwald: “[G]iven that there are so many excellent candidates who have a long, clear commitment to a progressive judicial philosophy, why would Obama possibly select someone who — at best — is a huge question mark?…I believe Kagan’s absolute silence over the past decade on the most intense Constitutional controversies speaks very poorly of her.” This was a follow-up from another piece, where he argued: “Kagan, from her time at Harvard, is renowned for accommodating and incorporating conservative views, the kind of ‘post-ideological’ attribute Obama finds so attractive.” Interestingly, this last part seems much the same argument Lessig’s making in her favor, with the valence changed.
(As an aside, this feud got a bit heated, with Greenwald deeming Lessig a liar and stooge. Having been on the wrong end of Greenwald’s wrath myself on the Citizens United case, Lessig’s rebuttal to this charge sounded all-too familiar: “Chill, Glenn. Dial down the outrage. Dial back the hyperbole. And stop calling those who applaud you liars…[Y]ou can make your point well enough without painting everyone else as liars or constitutional crazies.” True story.)
Anyway, speaking of Citizens United, since the President has explicitly said that decision is lousy law several times over, I presume he’s made sure Kagan is in agreement on that front. (He has, right?) And, as I said back during John Roberts’ nomination, my feeling is generally the president’s prerogative in choosing Supreme Court justices should be respected. (Can’t countenance Roberts’ lying, tho’.) So, if Kagan’s the president’s choice, I’m prepared to give her the benefit of the doubt and support the nomination.
But, quite frankly, I shouldn’t have to doubt (and here, the next two links are via Greenwald.) As the NYT editorial page well put it: “President Obama may know that his new nominee to the Supreme Court, Elena Kagan, shares his thinking on the multitude of issues that face the court and the nation, but the public knows nothing of the kind. Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view.“
So, sure, I guess it’s entirely possible Kagan is a secret superprogressive of the Leonard Cohen type. (“They sentenced me to 20 years of boredom, for trying to change the system from within.“) But there’s another explanation that’s more likely. And, loath as I am to agree with David Brooks, his column today echoes almost exactly what I was thinking:
“Kagan has apparently wanted to be a judge or justice since adolescence (she posed in judicial robes for her high school yearbook.) There was a brief period, in her early 20s, when she expressed opinions on legal and political matters. But that seems to have ended pretty quickly. She has become a legal scholar without the interest scholars normally have in the contest of ideas. She’s shown relatively little interest in coming up with new theories or influencing public debate. Her publication record is scant and carefully nonideological…What we have is a person whose career has dovetailed with the incentives presented by the confirmation system, a system that punishes creativity and rewards caginess.“
That’s my rub too, and it dovetails with larger problems I have with DC political culture. More often than not, the people who tend to succeed here are the ones who keep their head down, play the DC game, stay resolutely non-ideological and unobtrusive in their opinions. never go out on a limb, never say or do anything that could hurt their bid to be a Big (or Bigger) Shot down the road. (Hence, the whole phenomenon of The Village.)The problem is, these plodding, risk-averse careerist types are exactly the type of people you don’t want making decisions in the end, because they will invariably lead to the plodding, risk-averse and too-often rudderless politics of the lowest common denominator.
I’m really hoping the future Justice Kagan isn’t another example of this troubling trend, because as I said when Stevens retired: “The Court needs a strong and unabashed liberal conscience right now. What it emphatically does not need is another centrist technocrat that will help push the Court ever further to the right” But, as Kurt Vonnegut put it in Mother Night, “We are what we pretend to be, so we must be careful about what we pretend to be.” And when someone spends decades being so careful and circumspect in the face of so many obvious injustices, both by recent administrations and in the world at large…well, I really have to wonder about their judgment.
In the WP, architecture critic Phillip Kennicott lambasts the Supreme Court for closing its front doors in fear of the Big Bad Terr’ists. “The justices, with Stephen G. Breyer and Ruth Bader Ginsburg dissenting, have made their priorities known, as clearly as if they had they had sold naming rights to the Great Hall to the highest corporate bidder. They stand on the side of security — a regime of absolute and irrevocable decisions often made by unelected officials and not subject to any meaningful public appeal. Beauty, architecture and the need for a democratic people to experience inspiring symbolic public space weigh lightly, if at all, in the scales.” (See also Paul Goldberger’s similar case in The New Yorker.)
Expected it may be, but this is not good news. The President is saying all the right things about picking a Justice who will uphold campaign finance laws in the wake of the Citizens United disaster. But, as the pathetic recent capitulation on Dawn Johnsen showed once more, this White House too often shrinks from a necessary fight in the name of an elusive “bipartisanship” that, quite frankly, does not exist.
With Stevens gone and the fearsome foursome of Roberts, Alito, Thomas, and Scalia still roaming the chambers, the Court needs a strong and unabashed liberal conscience right now. What it emphatically does not need is another centrist technocrat that will help push the Court ever further to the right. The ball’s in your court, Mr. President — It’s time to show more of the progressive gumption we voted you in office to provide.
“When the Chief Judge joined in the argument about the continuing vitality of the corruption rationale for campaign finance restraints, he flatly accused Kolker of evading the Citizens United ruling. “I’m not hearing you address Citizens United,” Sentelle said. And Judge Thomas B. Griffith chimed in: “You’re trying to avoid Citizens United. This is a new world: corruption means a lot less than it did before.’”Hey, you said it, Judge. According to the good folks at SCOTUSblog, the doors to unfettered campaign cash are open in a big way in the minds of the DC District Court after Citizens United: “From the opening moment of the 65-minute hearing, most of the nine judges on the en banc Court treated the Supreme Court’s ruling…as the beginning, not the end, of expansion of those freedoms. When an FEC lawyer tried to bring up, and rely on, older precedents, he was reminded repeatedly that those came before Citizens United.“
President Obama’s stern words about the decision in his State of the Union address may have induced Justice Alito to expose himself as a partisan hack, but it seems, alas, that the Justice and his four conservative contemporaries will have the last laugh.
“The Chamber spent much of its money in 2009 on campaigns that worked — it scared the Senate away from considering a version of the Waxman-Markey cap-and-trade legislation, and an argument can be made that its cutting ads on health care (with money taken from some insurance companies) helped to undercut support for the legislation.” You think? In a shape-of-things-to-come moment even before Citizens United goes into effect, the Chamber of Commerce outspent both political parties in 2009.
“According to The Center for Responsive Politics, the U.S. Chamber of Commerce and its national subsidiaries spent $144.5 million in 2009, far more than the RNC and more than double the expenditures by the DNC.” But corporate spending isn’t a problem or anything.
“In a new national poll, 65 percent of Americans say they disagree with the 5-to-4 U.S. Supreme Court decision to allow corporations to spend without limits on ads in political campaigns.” And yet hope remains while the company is true: A new poll finds Americans across the board are unhappy with the court’s ruling in Citizens United.
“The Reid poll found little difference in partisan attitudes…Sixty-six percent of Democrats either “moderately” or “strongly” disagreed with the ruling, but so did 63 percent of Republicans. A whopping 72 percent of Independents disagreed with the Supremes’ decision.” One wonders how those numbers might’ve moved if we started using Citizen United’s full name to discuss this case…
“Debate on the question of money and politics has been percolating within the ACLU for years, long before the Supreme Court handed down its decision in Citizens United. ‘It is difficult to think of an issue that has generated more internal controversy,’ an internal ACLU memo states.“
To its credit and as a result of the Citizens United decision (which the organization has previously lawyered and lobbied for), the ACLU convenes a weekend summit to discuss its campaign finance reform position. “‘The ACLU’s version of democracy is from the ground-up,’ one civil rights lawyer, David Gans, told the ACLU’s board, which was assembled downtown at One New York Plaza. ‘Now Exxon Mobil can spend 2% of its money and blow that all up.’“
Here’s hoping the reformers win the day — or walk out CIO-style if they don’t. Imho, the stance that unlimited corporate funding of our elections is a right guaranteed by the First Amendment has always been the Achilles’ heel of an otherwise superb organization. I’m not a lawyer, but as far as I can tell, their reasoning relies on two unfortunate bugs in the legal code — corporate personhood and the conflation of money with speech — that they too often deem fundamental First Amendment principles. I would argue they’re not.
For why the former — corporate personhood — has obvious problems, just read Justice Stevens’ dissent from Thursday:
“The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its ‘identity; as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law….
Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure,and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.”
For the latter — the ruinous conflation of money and speech in Buckley v. Valeo — check out Stevens’ concurrence in Nixon v. Shrink Government Pact (2000), where he says how he’d come down if Buckley were reopened:
“In response to [Justice Kennedy's] call for a new beginning, therefore, I make one simple point. Money is property; it is not speech.
Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign trail, on a battleground, or even on a football field. Money, meanwhile, has the power to pay hired laborers to perform the same tasks. It does not follow, however, that the First Amendment provides the same measure of protection to the use of money to accomplish such goals as it provides to the use of ideas to achieve the same results…
Telling a grandmother that she may not use her own property to provide shelter to a grandchild — or to hire mercenaries to work in that grandchild’s campaign for public office — raises important constitutional concerns that are unrelated to the First Amendment.”
(See also Byron White’s concurrence in part in Buckley, which argues that “[n]othing in the First Amendment stands in the way of ” campaign finance limits.)
But somewhere along the line and for whatever reason, the ACLU latched on to both of these unwise shibboleths, and have since been arguing that corporate personhood and the idea of money as speech are both enshrined in the First Amendment. Uh…really?
To see what kind of damage these two bogus ideas have wrought, one need only to go over to Salon and read through Glenn Greenwald’s ugly meltdown on Citzens United the past few days. As anyone who visits GitM regularly knows, I link to Greenwald pretty much constantly. On a host of issues, from Obama’s terrible record on civil liberties to the broken-down state of our journalism, he’s been remarkably on point, and one of my favorite columnists to read. I used to wonder if there was anything I disagreed with him on. Well, it turns out, there is. And, apparently, I’m a “partisan hack” for thinking different.
For the Cliff Notes version of this whole conversation, I wrote up a snarky summation of it here yesterday, well after things had gone south. But, basically, Glenn — on “homework assignment” — argued on Friday that, all the negative consequences that will ensue aside, the Majority in Citizen’s United decided the case correctly, that this was a victory for the first amendment, and that people who disagree with their decision are practicing “outcome-based law.” (He also made the dubious and unprovable assertion that things can’t get any worse anyway. Really? We’ll see.)
Well, this assessment did not sit right with a lot of people. Some questioned his reading of the case. Others pointed out that law is always outcome-based, even the Majority’s ruling in Citizens. (The concerned outcome for Justice Kennedy here is that blogs might get banned someday, somehow, if this ruling isn’t made. I’ll take my chances.) And, others, such as myself, questioned these two principles — corporations are people, money is speech — that the ruling was based on.
Well, suffice to say, Greenwald did not take criticism well. He adamantly refused to engage either notion — money isn’t speech, corporations aren’t people — as having any merit whatsoever, eventually trying to write off both with some dubious 1L hypotheticals. (All were answered to his disadvantage, several times over.) He went on to ridicule the folks who disagreed with him in a “check out the Big Brain on me” kinda way. (He argued his lawyerly creds just means he knows better.) He ignored Stevens’ actual dissent throughout. And he accused folks of being just like Dubya on torture for deigning to disagree with him on the decision.
This embarrassing conceit — those with disagree with me are Dubyaites, end of story — formed the extraordinarily condescending introduction of Greenwald’s follow-up to his first post. Still ignoring the legitimate criticisms people were making of the two assertions above — money=speech and corporations=people, Glenn instead pulled one line from Justice Stevens’ ninety pages of dissent to argue that all nine Justices agreed with both of these propositions. (This even though both Ginsburg and Sotomayor questioned the corporate personhood idea in oral arguments, and that Stevens explicitly said he did not agree with the money=speech proposition in Nixon v. Shrink, an argument Glenn would not touch.) As it turns out, the one line Glenn pulled from Stevens’ dissent proved neither assertion. Nonetheless, he returned to his shell, refusing to even consider the notion that “money=speech” or “corporations=people” might be lousy interpretations or legal accidents, or that they aren’t necessarily covered by the First Amendment.
The ACLU has a long history of standing up to and defying people [like] you: those who pretend to believe in the Constitution and civil liberties only when it can be used as a weapon to advance your partisan and political agenda.
If they didn’t reverse themselves on the First Amendment rights of Nazis in the wake of huge numbers of people like you (those who only believe in the Constitution when it suits them) cutting off funding and leaving the organization, I highly doubt they will do so now….
But what has made the ACLU such an important and unique organization is that they have stood their ground on principle and resisted the efforts of people like you to turn it into a partisan tool rather than an organization devoted to the Constitution.“
I guess he figured I’d forget what “people like me” means from paragraph to paragraph. And, yes, y’all, I’ve been writing on politics and progressivism here for ten years because I’ve always wanted to subvert the Constitution to my own ends. And I would’ve gotten away with it too, if it weren’t for that nasty Greenwald!
Anyway, when I then reminded Greenwald that people of principle can disagree on these issues, and that it may even be possible that the ACLU reformers might even be the right ones in this story, that’s when I got called an Orwellian partisan hack once more. (FWIW, here’s my kissoff. I particularly like “paddock of principle and certitude.”)
Throughout this whole back-and-forth, there was not even the remotest possibility that any other interpretation on these two questions had merit for Greenwald: Corporations have first amendment rights. Money is speech. Both are obviously enshrined in the First Amendment. And arguing anything else is ridiculous and deserving of scorn (even if Supreme Court justices have argued differently in the past, including as recently as Thursday.) So let it be written, so let it be done.
Uh…really? Who knows…perhaps it’s a lawyer thing. Nonetheless, this myopic, bullish way of thinking — I hold the only correct possible interpretation of the law, and you’re either with me or you’re with the Dubyaites — isn’t very satisfying on either personal or argumentative grounds. And Greenwald’s constant doubling down on his original argument, even as more and more holes were poked in it by various responders, makes me question not only his temperament but his writing in general. He usually provides a valuable public service, no doubt, but he seems to have bought into his own hype as an Incorruptible Defender of Liberty. If you can’t think outside of yourself once in awhile, or find some way to weigh arguments you may not necessarily agree with without deeming them unprincipled, you’re really not much use to anyone.
Update: Looks like Greenwald addressed this topic one more time this morning. Here’s what he said:
“‘Money is not speech’ is an idiot bumper sticker slogan, not a meaningful argument which resolves anything. ‘Corporations have no constitutional rights’ is such an extreme and dangerous position (it endorses the constitutionality of the FBI’s searching whatever corporate offices they want and seizing all corporate documents with no search warrants or probable cause, or the Congress’ imposing $10 million fines on corporations every time they criticize the government, among other things) that it’s frivolous in the extreme. Despite that, I spent substantial time all weekend addressing and responding to those frivolous bumper sticker slogans.“
So there you have it. An “idiot bumper sticker slogan”…repeated verbatim by Justice Stevens in 2000. (And, for what it’s worth, Greenwald referred to civil rights lawyer David Kairys’ piece on these two questions, linked several times above, as “stupid and ill-informed.”) Class act, Glenn.
“How absurd is that? Let us count the ways. First, even when the most establishment ‘journalists’ such as Rosen get caught engaging in patently irresponsible behavior, they still find a way to blame blogs rather than themselves (I thought I was just blogging, and reckless gossip is what bloggers do.) It wasn’t blogs that “reported” Saddam Hussein’s acquisition of scary aluminum tubes for nuclear weapons or that Iraq was behind the anthrax attacks; it wasn’t blogs that glorified Jessica Lynch’s nonexistent heroic firefight with Iraqi goons; it wasn’t blogs that turned John Edwards into The Breck Girl and John Kerry into a “French-looking” weakling; and it wasn’t blogs that presented retired military generals who were participating in a Pentagon propaganda program and saddled with countless undisclosed conflicts as ‘independent analysts.’“
Call it the State of Play fallacy: After TNR’s Jeffrey Rosen blames “blogging” for the obviously poor quality of his recent Sotomayor hit piece — and vows never to blog again — Salon‘s inimitable Glenn Greenwald sets the record straight about what can and can’t be pinned on bloggers. “Despite his efforts to blame ‘blogging’ for what he did, Rosen didn’t use journalistically reckless methods to smear Sotomayor’s intellect because of some inherent attribute of the medium. Instead, he did that because…that’s how the establishment media typically functions: ‘background reporting from people with various axes to grind, i.e. standard Washington reporting.’” (And, for what it’s worth, Rosen’s original article was hardly what you’d call blogging anyway — it was just a lengthy piece that ran online.)
“At 69, Souter is nowhere near the oldest member of the court, but he has made clear to friends for some time now that he wanted to leave Washington, a city he has never liked, and return to his native New Hampshire.” Is Justice Souter retiring after this Supreme Court term? NPR seems to think so. I’d prefer it was Scalia’s time to go, of course…but oh well. “Souter, though appointed by the first President Bush, generally votes with the more liberal members of the court, a group of four that is in a rather consistent minority.” And two of those — Stevens and Ginsberg — are good bets to retire soon as well.
“The Republican Party’s suit was clearly prompted by its troubles in the 2008 election, in which Mr. Obama proved far more adept at fund-raising than John McCain. It is disturbing that the R.N.C. sees its salvation in clearing the way for corporations and other special interests to flood its campaign coffers once again.“
I missed this when it first went down, but the NYT just apprised me of it: On the verge of electoral oblivion — the retirements of Sens. Martinez, Brownback, Bond and Voinovich don’t help — the Republicans have filed two lawsuits aimed at overturning McCain-Feingold, apparently in the hope that they could then feasibly prostitute themselves back into power. (Feingold’s response.)
“In 2003, in McConnell v. F.E.C., the justices upheld the precise provisions the Republicans are now challenging…The McConnell decision should end the matter. But the R.N.C. seems to be hoping that because of changes in the court — in particular, Justice Sandra Day O’Connor’s replacement by Samuel Alito — it can persuade the court to undo this recent and important precedent.” Hmm. I’ve got a bad feeling about this.
“In the lower courts, according to a study Professor Long published in the Washington & Lee Law Review last year, Mr. Dylan is by far the most cited songwriter. He has been quoted in 26 opinions. Paul Simon is next, with 8 (12 if you count those attributed to Simon & Garfunkel). Bruce Springsteen has 5.“
With great lawyers, you have discussed lepers and crooks: By way of Ted at the Late Adopter, the NYT examines Chief Justice Roberts’ use of Dylan in court opinions. “Mr. Dylan has only once before been cited as an authority on Article III standing, which concerns who can bring a lawsuit in federal court…The larger objection is that the citation is not true to the original point Mr. Dylan was making, which was about the freedom that having nothing conveys and not about who may sue a phone company.”
“The court’s five most conservative members have demonstrated that for all of Justice Antonin Scalia’s talk about ‘originalism’ as a coherent constitutional doctrine, those on the judicial right regularly succumb to the temptation to legislate from the bench. They fall in line behind whatever fashions political conservatism is promoting.” In the WP, E.J. Dionne eviscerates the Scalia wing of the Roberts Court for their 5-4 decision in D.C. v. Heller yesterday. As you’ve no doubt heard by now, the decision (penned by Scalia) parsed the Second Amendment in such a way as to overturn the handgun ban in the District (and seemed to simply ignore the existing precedent of US v. Miller.) As Slate‘s Dahlia Lithwick deadpanned, “today’s decision ‘will almost certainly cause more Americans to be killed.’“
As it turns out, the Court went 0-for-2 yesterday, also deciding 5-4 (Alito writing the majority opinion) that McCain-Feingold has been prejudicial against the wealthy. In response, Sen. Feingold noted that the millionaire’s amendment was flawed anyway: “I opposed the millionaire’s amendment in its initial form and I never believed it was a core component of campaign finance reform.” Still, the decision here may not bode well for campaign finance opinions down the pike. “‘What’s most significant here is what this means for the future,’ said Rick Hasen, a professor at Loyola Law School. ‘It tells us that the long-standing limits on corporate and union campaign spending are in grave danger.’”
“‘There’s a growing sense, a growing probability, that the next administration could be Democratic,’ said Craig L. Fuller, executive vice president of Apco Worldwide, a lobbying and public relations firm, who was a White House official in the Reagan administration. ‘Corporate executives, trade associations and lobbying firms have begun to recalibrate their strategies.‘” As a Democratic presidency in 2008 looks increasingly likely, business lobbyists scramble for deals under Dubya. “Few industries have more cause for concern than drug companies, which have been a favorite target of Democrats. Republicans run the Washington offices of most major drug companies, and a former Republican House member, Billy Tauzin, is president of their trade association, the Pharmaceutical Research and Manufacturers of America.” Well, for them to be really concerned, we Dems have to show more backbone in the face of lobbyists than we have thus far in this Congress. And, as Simon Lazarus recently pointed out anew in The Prospect, no matter who wins in 2008, corporate lobbyists will still have the Roberts Court to back their play for some time to come.
Sigh…According to the NYT, a new ad for John McCain by a soft-money front, Foundation for a Secure and Prosperous America, — which McCain has disavowed — exemplifies the rush of unregulated, undisclosed money expected in the 2008 race, thanks in part to the Supreme Court’s gutting of McCain-Feingold over the summer. “The decision removed virtually any restrictions on [corporations'] ability to advertise, and made nonprofit corporations, with their few disclosure requirements, the tool of choice for big donors looking to influence elections…They can now run explicitly political advertisements that mention specific candidates right up to Election Day, as long as they have some other ostensible purpose — even one that closely resembles a candidate’s campaign themes.”
“In his telling, virtually everyone who has ever wronged him has done so because of his race…And maybe because he can see no shades of gray, in the end, Thomas careens back and forth in this book between seeing himself as a victim or a self-actualized hero. There is precious little in between.” Dahlia Lithwick reads My Grandfather’s Son, the new autobiography by Justice Clarence Thomas.
“‘I don’t think of myself as a liberal at all,’ he told me during a recent interview in his chambers, laughing and shaking his head. ‘I think as part of my general politics, I’m pretty darn conservative.” A holdover link from last weekend (and a follow-up of sorts to this 2006 post): Jeffrey Rosen profiles Justice John Paul Stevens in the NYT Magazine. “In criminal-law and death-penalty cases, Stevens has voted against the government and in favor of the individual more frequently than any other sitting justice. He files more dissents and separate opinions than any of his colleagues. He is the court’s most outspoken defender of the need for judicial oversight of executive power. And in recent years, he has written majority opinions in two of the most important cases ruling against the Bush administration’s treatment of suspected enemy combatants in the war on terror.“
“This is probably one of the most important cases in decades as it relates to the death penalty.” Now we’ll really see how pro-life they are…the Supreme Court agrees to hear a case on the constitutionality of lethal injections.
In a challenging pop test of compassion for lefty news readers, Chief Justice John Roberts suffers a seizure at his vacation home in Maine. (He previously experienced a similar seizure in 1993.) Roberts has ‘fully recovered from the incident,’ and a neurological evaluation ‘revealed no cause for concern,’ the Supreme Court said in a statement.” (Well, I, for one, will admit to breathing a sigh of relief when I found it was Roberts, and not Justice Stevens, who suffered the scrape. In any case, it sounds like the Chief Justice is fine.)
“EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change.” By a 5-4 decision, the Supreme Court determines that the Dubya EPA violated the Clean Air Act when it refused to regulate greenhouse gas emissions, thus hopefully setting the stage for an (admittedly unlikely) reevaluation of global warming by the executive branch. “Chief Justice John G. Roberts Jr. wrote one dissent, which was joined by Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas.” Yep, the usual suspects.
“‘The stakes are enormous,’ said Michael E. Toner, a Federal Election Commission member who served on President Bush’s campaign in 2000. ‘We’re watching this case very closely.’” It was upheld 5-4 in 2003…can it withstand Justice Alito? The Roberts Court declares it will take another look at McCain-Feingold in the coming session, and opponents of reform are hoping Alito will help them reopen the floodgates. “Richard L. Hasen, an election law expert at Loyola Law School in Los Angeles, said the Supreme Court challenge is ‘going to be a prime opportunity for opponents of campaign regulations to make some headway in watering down the standards.’“
“Every redistricting is a partisan political exercise, but this is going to put it at a level we have never seen…That’s the gift that the Supreme Court and Tom DeLay have given us.” In other news, the Court votes 5-4 that DeLay’s Texas redistricting plan needs to be tweaked — namely, that one district needs to be redrawn to accommodate the Voting Rights Act — but is otherwise legal and constitutional. “[W]ith six justices producing 123 pages of opinions, without any five of them able to agree on how to define an unconstitutional gerrymander, politicians of both parties said that the ruling leaves the door wide open to attempts to copy the DeLay strategy in other states.”
Boo hiss. The Supreme Court decides 6-3 to strike down a Vermont campaign finance law, which was conceived in part as a challenge to Buckley v. Valeo. “The result appears to doom any future efforts to impose spending limits on state or federal campaigns, legal analysts said.” And, in related news, Slate‘s Dahlia Lithwick and Walter Derringer discuss recent Supreme Court decisions, with special attention to the recent capital punishment case, Kansas vs Marsh.
“‘There’s been a quiet, silent revolution going on,’ Carp said in an interview. ‘If you’re a conservative, you’re going to say, “Thank God.” If you’re a liberal, you’re going to put your hands over your head and say it’s a nightmare.’” By way of my friend Mark, CQ’s Kenneth Jost laments the Dubya judiciary.
“If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case. Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds.” In a Georgetown commencement address, new Chief Justice John Roberts expounds on his view of the job after eight months. Well, we’ll see when those next few decisions come in.
Did White House officials steal a file on John Roberts’ affirmative action record from the National Archives last year? “This investigation is unresolved and the file is still missing,” says a new report by the Archives Inspector General, which Tim Noah dissects over at Slate. (Hmmm…was it reclassified, perhaps?) Still, according to the report, a White House staffer was the last person known to have the file, and “[t]he report’s findings contradicted the assertions of Archives officials, who said last August that an attendant had been in the room at all times and that the lawyers had been separated from their bags.” The mystery deepens…
“It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings.” Former Justice Sandra Day O’Connor goes after judge-bashers on the right, quoting very intemperate remarks by Boss DeLay and Sen. John Cornyn. Kudos to her, although, as Ed ranted earlier today, this is all coming a bit late, isn’t it? I mean, where were Justice O’Connor’s concerns about avoiding such ends when she became the swing vote on Bush v. Gore (arguably for dubious personal reasons)? Like her fellow Arizonan John McCain, Justice O’Connor talks nice about standing up to right-wing power-grabs. But, also like McCain, when it was her turn to face them down, she didn’t walk the walk.
The Bush administration loves it, but many Justice Dept. officials think it’s illegal…Now, it’s the Supreme Court’s turn to weigh in on Boss DeLay’s gerrymandering plan in Texas. “Two years ago, justices split 5-4, in a narrow opening for challenges claiming party politics overly influenced election maps. Justice Anthony M. Kennedy was the key swing voter in that case, and on Wednesday expressed concerns about at least part of the Texas map.” (Rehnquist and O’Connor sided against the map challenge then, so a switch by Roberts or Alito will only mean a larger majority against the DeLay redistricting, should the same votes hold.) Update: Justice Ginsburg finds the subject exhausting, and Dahlia Lithwick reports in.
‘If anything, Stevens’s influence has grown in recent years. He has a knack for building coalitions across ideological lines, and he makes shrewd use of his prerogatives as the senior associate justice. It is largely because of him that a court with seven Republican-appointed members, and nominally headed by a conservative, Chief Justice William H. Rehnquist, produced a string of relatively liberal results in recent cases.” The Post‘s Charles Lane profiles the Court’s Supreme lefty and history’s third-oldest justice, John-Paul Stevens.
Despite well-publicized concerns in their own Justice Department (which were overruled by senior officials), the White House rides to the rescue of Boss DeLay’s troubling redistricting plan by filing an amicus brief before the Supreme Court. “DeLay’s efforts on behalf of the plan resulted in his being admonished by the House Ethics Committee and indicted on charges of illegally diverting money to the campaigns of state legislators who drew the new map.“
Well, That’s that, then. Justices Stevens, Ginsburg, Souter, Breyer, and Kennedy: Please take your vitamins.
“While it’s true that O’Connor has tended to vote with the majority more frequently than Kennedy, and that she has done so in some big 5-4 decisions, it’s also true that in other extremely contentious areas, it is Kennedy, not O’Connor, who has swung the court leftward.” As Dem begin to announce their no votes for Alito (while downplaying the likelihood of a filibuster), Dahlia Lithwick — who is concerned about Alito’s judgment in the relatively precedent-less world of anti-terror-law — gives us hope for the Court’s future in highlighting Anthony Kennedy as the new swing vote. (Clearly, the psycho-right despises him, which speaks well of his jurisprudence in my book.)
Ten days after the Post unearthed a Justice Department memo deeming the recent Texas redistricting a violation of civil liberties, the Supreme Court says it will review the DeLay plan. “The panel stressed that it was deciding ‘only the legality’ of the redistricting plan, ‘not its wisdom.’“