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“Outraged About Ginsburg’s Comments?”: Supreme Court Justices Have Always Voiced Political Opinions

Donald Trump is freaking out over statements made by Supreme Court Justice Ruth Bader Ginsburg.

Ginsburg didn’t hold back during a New York Times interview published Monday. “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said.

Trump, naturally, hopped on Twitter to complain.

Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot – resign!

— Donald J. Trump (@realDonaldTrump) July 13, 2016

Speaker of the House Paul Ryan called Ginsburg’s comments “out of place” during a CNN Town Hall on Tuesday.

But even after a wave of criticism, including from “liberal” outlets, Ginsburg refused to walk back her comments. On Monday, she called Trump a “faker.”

“He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that,” she said in her chambers.

The backlash over Ginsburg’s comments is not surprising, given Trump’s history of trying to de-legitimize the judicial system (especially when it applies to him). But his argument that Ginsburg’s comments disqualifies her from being an unbiased judge is a weak one: The ideological leanings of the justices are well known by not only their decisions (its kind of their job to give opinions), but also their public statements.

Unlike Ginsburg’s comments about Trump, justices have made plenty of statements in the past that relate directly to cases before them in the court.

Antonin Scalia was the poster boy for this behavior – the conservative legal icon frequently toured between law schools, book stores, and other gatherings, debating all comers on a wide range of topics. We knew how he felt about the death penalty, abortion and homosexuality:

“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.” he said in 2012.

“What minorities deserve protection? What? It’s up to me to identify deserving minorities? What about pederasts? What about child abusers? This is a deserving minority. Nobody loves them.” he said in 2015.

Scalia’s defense of his homophobic remarks could easily be used to defend Ginsburg’s Trump comments — not that Ginsburg would use his argument, despite her storied, decades-long friendship with Scalia.

“If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?” Scalia said in 2012 after a gay Princeton student asked him why he equated laws banning sodomy with laws that ban man-on-animal sex and murder.

Ginsburg herself has long been known for her frankness. Joan Biskupic, the journalist who reported Ginsburg’s statements on Trump, writes that, having met with her “on a regular basis for more than a decade,” she “found her response classic.”

Biskupic elaborates:

I have witnessed her off-bench bluntness many times through the years.  During 2009 oral arguments in a case involving a 13-year-old Arizona girl who had been strip-searched by school administrators looking for drugs, she was troubled that some male justices played down any harm to the student. “They have never been a 13-year-old girl,” Ginsburg told me. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”

Earlier in 2009, she was being treated for pancreatic cancer yet made sure to attend President Barack Obama’s televised speech to a joint session of Congress, explaining that she wanted people to know the Supreme Court was not all men. “I also wanted them to see I was alive and well, contrary to that senator who said I’d be dead within nine months.” She was referring to Sen. Jim Bunning, a Kentucky Republican, who had said she would likely die within nine months from the pancreatic cancer. Bunning later apologized.

As the first Latina to reach the court, Justice Sonya Sotomayor fiercely defends her use of personal political reflection, based in experiences that she believes differ from those of the other justices, in her arguments. The issue of affirmative action is especially important to Sotomayor. In her 2013 memoir, she wrote:

“Much has changed since those early days when it opened doors in my life. But one thing has not changed: to doubt the worth of minority students’ achievement when they succeed is really only to present another face of the prejudice that would deny them a chance even to try.”

Sotomayor has taken this sentiment to the court. In her dissent on Schuette v. Coalition to Defend Affirmative Action, she wrote: “Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, ‘No where are you really from?’”

Sotomayor’s opinion in a fourth amendment case on the validity of police stops was an explicitly political appeal. “It is no secret that people of color are disproportionate victims of this type of scrutiny,” she wrote in her dissent, on a case where a Utah man claimed he was unlawfully stopped by police. “For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

And besides: The Constitution does not prohibit Supreme Court Justices from expressing personal opinions.

Bloomberg‘s Noah Feldman offers Chief Justice John Marshall, who served as John Adams’s secretary of state while he was a chief justice, as proof that America’s founding generation was not “obsessed with the idea that justices have to be outside the reach of politics.”

Marshall, a loyalist of the Federalist Party, was understood to retain his beliefs while serving as chief justice subsequently.

Two of his most revered opinions, Marbury v. Madison and McCulloch v. Maryland, are historically incomprehensible except through the lens of partisan politics. In the first, he went to great lengths to embarrass the Jefferson administration by insisting that Marbury had a right to a justice-of-the-peace commission granted by Adams, before tacking back and holding that the law that would have allowed the court to force the delivery of the commission was unconstitutional.

In the second, he upheld the constitutionality of the Bank of the United States, originally such a fundamental partisan issue that it helped drive the creation of his Federalist and Jefferson’s Democratic-Republican parties.

Maybe conservatives shouldn’t argue about the integrity of the Court while in their fourth month of refusing to give it a ninth justice.

 

By: Germania Rodriguez, The National Memo, July 13, 2016

July 14, 2016 Posted by | Conservatives, Ruth Bader Ginsburg, SCOTUS | , , , , , , , | Leave a comment

“Just The Way They Do Business”: The Conservative Go-For-Broke Legal Strategy Suffers A Blow

These days, conservatives don’t suffer too many unanimous defeats at the Supreme Court, even in its currently unsettled status. But that’s what happened today, when the Court handed down an 8-0 ruling in a case called Evenwel v. Abbott, which had the potential to upend an understanding of democratic representation that has existed for two centuries, and give Republicans a way to tilt elections significantly in their favor before anyone even casts a vote.

The conservatives lost. But losing cases like this one is part of the way they do business. With a (usually) friendly Supreme Court, in recent years they’ve employed a strategy of maximal legal audacity, one that has yielded tremendous benefits to their cause.

This case was a relatively low-profile part of a comprehensive conservative assault on voting rights — or perhaps it’s more accurate to call it an assault on the ease with which people who are more likely to vote Democratic can obtain representation at the ballot box. The question was about how state legislative districts are drawn, and the principle of “one person, one vote.” We’ve long had a legal consensus that all districts in a state have to be approximately the same size, to give everyone equal representation; a state legislature can’t draw one district to include a million people and another district to include only a thousand (although you might point out that we do have a legislative body that violates this principle; it’s called the United States Senate, where Wyoming gets one senator for every 300,000 residents and California gets one senator for every 20 million residents).

The plaintiffs in Evenwell argued that instead of using population to draw district lines, states should use the number of eligible voters. Apart from the fact that we know population numbers fairly precisely because of the census, and we have no such precision regarding eligible voters, that would exclude huge swaths of the public. You might immediately think of undocumented immigrants, but counting only eligible voters would also mean excluding people with green cards on their way to citizenship, children, and those who have had their voting rights taken away because of a criminal conviction. In practice, drawing districts this way would almost inevitably mean taking power away from urban areas more likely to vote Democratic and sending power to rural areas more likely to vote Republican. Which was of course the whole point.

This case was a real long shot from the beginning, as you might gather from the fact that the conservative activists who filed it were suing the state of Texas, which is controlled by Republicans and is not exactly enthusiastic about ensuring everyone’s voting rights (the state’s incredibly restrictive voter ID law is still working its way through the courts). The problem they ran into came from the fact that the lawsuit alleged not that a state may draw districts based on the number of eligible voters and not the population, but that it must draw districts that way. That was the only way for them to file the suit, since they were trying to force Texas to change how it was drawing districts.

Since Texas had chosen to use population, just as every other state does and always has, in order to force a change the plaintiffs wanted that method declared unconstitutional. If they had prevailed, that could have meant that every state legislative district in the country would have had to be redrawn. As Ruth Bader Ginsburg wrote in the ruling, “As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.”

About the legal audacity I mentioned before: As unlikely as this case may have been to succeed, it’s another reminder of how legally aggressive the right has been lately. Again and again, whether it’s about voting rights or the Affordable Care Act or some other issue, they’ve come up with some novel legal theory that at first gets dismissed as completely absurd, then begins to sound mainstream as conservatives see an opportunity to gain a victory and rally around it. Even if they ultimately lose in court, the controversy can open up new legal and political avenues that hadn’t been evident before.

They lost today, and if you get Samuel Alito and Clarence Thomas to agree with Ruth Bader Ginsburg and Sonia Sotomayor that your claim is bogus, you know you’ve gone pretty far. But this case leaves an open question, which is whether a state can switch to an eligible-voter count in order to draw its districts if it chooses. No state has chosen to do that, but don’t be surprised if now that the issue has gotten some attention, conservative Republican legislators in deep-red states — particularly those with large numbers of Latino immigrants — start proposing it. I’d keep my eye on Texas.

 

By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, April 4, 2016

April 5, 2016 Posted by | Conservatives, Republicans, SCOTUS, Voting Rights | , , , , , , , , | 1 Comment

“This Is No Small Development”: Supreme Court Split Saves Public-Sector Unions

Republicans have made no secret of the fact that they fear the Supreme Court moving to the left, even a little, in the wake of Antonin Scalia’s death. But we were reminded this morning that in the late justice’s absence, the high court’s capacity for conservative change has already been curtailed.

CNBC reported on the release of a decision that wasn’t expected until June.

The U.S. Supreme Court on Tuesday split 4-4 on a conservative legal challenge to a vital source of funds for organized labor, affirming a lower-court ruling that allowed California to force non-union workers to pay fees to public-employee unions.

The court, shorthanded after the Feb. 13 death of conservative Justice Antonin Scalia and evenly divided with four liberal and four conservative members, left intact a 1977 legal precedent that allowed such fees, which add up to millions of dollars a year for unions.

The case is called Friedrichs v. California Teachers Association, and the Supreme Court’s “decision,” such as it is, has been posted online here. It’s extraordinarily brief, however: it reads in its entirety, “Per Curium. The judgment is affirmed by an equally divided Court.”

This is no small development. At issue in this case was a seemingly obscure issue – public-sector unions’ “agency fees” – but while this may seem like a tangential dispute, the outcome had the potential to disrupt many labor unions nationwide.

Revisiting our previous coverageThe New Republic’s Elizabeth Bruenig summarized the issue this way:

Agency fees work like this: Public sector unions are required to cover all employees in a given bargaining unit, whether the employees opt into union membership or not. Public sector employees (which include EMTs, firefighters, public school teachers, social workers, and more) thus pay agency fees to their respective unions even if they are not union members, because public sector unions work on behalf of everyone in their bargaining unit, not just union members.

Agency fees do not fund unions’ political activities, but rather strictly the costs of union grievance-handling, organizing, and collective bargaining. In the 1977 case Abood v. Detroit Board of Education, the Supreme Court upheld the right of public sector unions to extract agency fees from public sector workers, and found that agency fees do not violate employees’ freedom of speech, so long as they do not fund unions’ political activities.

The trouble, according to many on the right, is that literally everything unions do – even collective bargaining itself – is inherently political, even if it’s unrelated to campaign activities. As a result, the Friedrichs case offered the justices an opportunity to overturn the Abood precedent.

And if Scalia had lived, that’s almost certainly what the justices would have done in a 5-4 decision. Instead, the court was evenly split.

Make no mistake: this case represented a major threat to the existence of unions that rely on agency fees. Had the court sided with the right, public-sector unions would still bargain on behalf of public-sector workers – union members and non-members alike – but workers’ dues would have been voluntary.

This case will go back to the Supreme Court again in the not-too-distant future, but for now, a 4-4 split saved public-sector unions, leaving them to fight another day.

 

By: Steve Benen, The Maddow Blog, March 29, 2016

March 30, 2016 Posted by | Public Sector Unions, Republicans, SCOTUS | , , , , , , | Leave a comment

“Freedom Not To Do Her Job Whenever She Feels Like It”: Kentucky Clerk, Kim Davis, Ignores Court Rulings, Cites ‘God’s Authority’

Kentucky’s Kim Davis ran out of legal options yesterday. The clerk, who opposes marriage equality for religious reasons, has refused to issue marriage licenses to couples she decides are morally objectionable, despite the fact that Davis is paid to issue marriage licenses.

She and her attorney took the matter to court, and a federal district court judge said Davis could either follow the law or get a new job. She took her case to the 6th Circuit, which is pretty conservative, but which nevertheless rejected her case. Last week, Davis appealed to the U.S. Supreme Court, which turned the case away yesterday.

All of which led to this morning, when Davis decided to ignore the court rulings, the law, and her official responsibilities. MSNBC’s Emma Margolin reported:

A Kentucky clerk is still refusing to issue marriage licenses due to her religious opposition to same-sex nuptials, the Associated Press reported Tuesday, even after the U.S. Supreme Court dealt the final blow to her argument.

On Tuesday morning, Rowan County Clerk Kim Davis denied marriage licenses to at least two couples, telling them she was acting “under God’s authority.” She then asked David Moore and David Ermold, a couple who has been rejected by her office four times, to leave.

When the local resident said, “We’re not leaving until we have a license,” Davis responded, “Then you’re going to have a long day.”

The Lexington Herald-Leader reported this morning that the federal judge in the case ordered Davis to “appear in his courtroom Thursday and explain why she should not be held in contempt of court.”

As a rule, judges tend not to like it when citizens ignore the law and deliberately defy court orders. It’s worth noting for context that U.S. District Judge David Bunning, appointed to the bench by George W. Bush, is presiding over the case.

It seems likely that Kim Davis will become a cause celebre in conservative circles, a status that will grow if she’s jailed for contempt. But given every relevant detail, it’s awfully difficult to see her in a sympathetic light.

Davis is paid by the taxpayers of Rowan County to, among other things, issue marriage licenses to couples. But she doesn’t like issuing marriage licenses, at least not to everyone entitled to them.

As Davis sees it, she wants to keep her job, and continue to receive taxpayer-financed paychecks, but she also wants the freedom not to do her job whenever she feels it.

The local clerk could simply find some other line of work – one that doesn’t cause a conflict between her spiritual beliefs and her responsibilities – but Davis doesn’t want that, either. As far as Davis is concerned, she can refuse to do her job and she can refuse to find a different job.

It seems likely the federal judge will explain to her that her posture is untenable.

 

By: Steve Benen, The Maddow Blog, September 1, 2015

September 2, 2015 Posted by | Kim Davis, Marriage Equality, SCOTUS | , , , , , , , | 2 Comments

“Hey, Liberals; SCOTUS Ain’t Your Friend”: Conservatives Literally Want To Roll Back The Judicial Clock To 1905

It would be understandable if liberals were feeling kind of relaxed, kind of “Supreme Court, what’s so bad?” over the weekend. John Roberts and Anthony Kennedy delivered for our team on Obamacare, and then Kennedy came through again on same-sex marriage. If this is a conservative court, is getting a liberal one—which will be one of the trump-card arguments for voting for Hillary Clinton next fall—really a matter of such pressing urgency?

Well, yes. As we saw yesterday with the court’s death-penalty and EPA rulings, it’s still a long way from being a liberal court. But there’s more to it than that. People should remember that if a Republican is elected president next year and has the chance to replace Kennedy and/or Ruth Bader Ginsburg with another Samuel Alito, the Obamacare and same-sex marriage standings could easily be reversed. And don’t think there aren’t conservatives out there thinking about it, because there most certainly are, and they literally want to roll back the judicial clock to 1905.

An interesting and important debate opened up over the weekend in conservative legal circles that you should take time to educate yourself about. Many conservatives, of course, are furious with Roberts and Kennedy and are wondering, with conservatives like this, who needs liberals?

The ins and outs of the debate were deftly summarized yesterday by Ian Millhiser of Think Progress. I’m not going to take you as deep into the jurisprudential weeds as Millhiser does, but here’s the basic story. Since the 1980s, “judicial restraint” has been the guiding principle of conservative jurisprudence—the idea that judges shouldn’t make law from the bench but should rule more narrowly and modestly, deferring to the other branches. Roberts was invoking judicial restraint during his confirmation hearings with that famous line about judges just calling “balls and strikes.”

Judicial restraint was appealing to conservatives at the time because to a large extent, majorities of the public shared their views on pressing issues of the day. It was liberals back then who were trying to gain through the courts what they could not accomplish through legislatures and the political process.

But now that reality is to a considerable extent reversed. Public opinion is firmly against conservatives on same-sex marriage, and even on Obamacare, though the law (or the name of the law) remains unpopular, polling before last week’s decision showed that majorities didn’t want the Court to take away people’s health-care subsidies. And besides, Obamacare is after all a law, duly passed by the people’s representatives in Washington.

So now it’s the right trying to achieve through the courts outcomes that it could not through the political process. This is what Roberts in essence said in his majority opinion upholding the health-care law. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Roberts wrote. “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

All of this takes us back to Lochner v. New York, a 1905 decision that I’m not going to get into here (Millhiser does) but that in essence used the Fourteenth Amendment to extend rights not to individuals but to employers. The decision led to a series of decisions up through the New Deal that invalidated several key pieces of progressive legislation protecting workers and more. The Lochner majority relied on a view of the Fourteenth Amendment that is now discredited—except on the far right.

Which brings us to this past weekend. Conservative Georgetown law professor Randy Barnett wrote a column lambasting judicial restraint, arguing that “selecting judges with the judicial mindset of ‘judicial restraint’ and ‘deference’ to the majoritarian branches leads to the results we witnessed in NFIB [the first upholding of Obamacare back in 2012] and King.” He wants judges who embrace Lochner and who understand the “duty of judges to invalidate unconstitutional law without restraint or deference.”

Barnett specifically cited Clarence Thomas as an example of a judge who has this depth of understanding. And conservative law professor Jonathan Adler, one of the two, ah, creative minds who brought us the bogus King v. Burwell lawsuit in the first place, tweeted over the weekend that if a Republican wins the election next year, he ought to put Utah Senator Mike Lee on the court. As Millhiser notes, Lee is huge Lochner-ian, to the point that he thinks that Social Security, Medicare, and child labor laws are all unconstitutional.

Barnett wrote in his column that there would heretofore be a new standard that conservative legal scholars will demand of Republican presidential nominees. Now, dimwit candidates like Jeb Bush and Marco Rubio who yammer on about “judicial restraint” and “deference to the other branches” will be exposed as the traitors in waiting that they are, capable of upholding abominable notions like letting people who love each other get married or giving working-class and poor people a little financial help so they can take their kids to the doctor. Judicial restraint, apparently, breeds certain counter-revolutionary tendencies.

And this, finally, circles us back to the 2016 election and health care and marriage equality. Several legal challenges to Obamacare are still pending. Other inventive approaches no doubt await us. For example, a group of legislators in some red state could sue claiming that as the elected representatives of the people, they were denied by the court their proper deliberative role in the process of deciding how to bring health care to their state. If we get a Republican president and he puts a Barnett/Adler-approved justice on the court, poof, sayonara subsidies.

Same-sex marriage’s majority is even more precarious. For example: A gay plaintiff or plaintiffs could bring some kind of discrimination lawsuit (despite the marriage win, there still are other kinds of discrimination lawsuits on the books). A Lochner-loving majority of five could use that suit as the occasion to say, actually, discrimination here is legal, and while we’re at it, this marriage business…

And mind you, from a legal point of view, this would be legitimate. After all, think of it this way: If Kennedy had retired shortly after Citizens United and Barack Obama had put a liberal on the bench, liberals would have advanced at least one legal vehicle to try to get campaign-spending issues before the Court again hoping for reversal. All’s fair in campaign-finance, health care, love, and bigotry.

Imagine how that would feel—same-sex marriage overturned. Right now it’s hypothetical, but it is a long, long way from impossible. And if the Republican wins in 2016, and if Barnett’s arguments carry the day, we could end up with two or three more Alitos on the bench.

Still feeling relaxed?

 

By: Michael Tomasky, The Daily Beast, June 30, 2015

July 1, 2015 Posted by | Conservatives, Liberals, SCOTUS | , , , , , , , , , | Leave a comment

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