“There’s No Line Between Law And Politics”: A Reminder; Our Justices Are Politicians In Robes
Linda Greenhouse, the longtime Supreme Court reporter for the New York Times, declared surrender Thursday. For decades, she argued that the Court was a higher form of government, engaged in Law, not just politics. Now she has decided that the justices are politicians in robes.
The straw that broke her faith? The Court’s decision to review King v. Burwell, a case confirming that Obamacare subsidies can go to people in insurance exchanges that the federal government sets up in states that haven’t created the exchanges themselves. Without those subsidies, the worst-case scenario has Obamacare entering a fiscal death spiral. The best case is that it would be another body blow to a law that is managing to work despite design flaws and relentless opposition.
Greenhouse is absolutely right that the Court’s hasty grab at a hot-button case it doesn’t need to decide is unseemly and partisan-feeling. And as Greenhouse is a very smart and sincere person who loves the Court and the law, her crie de coeur is striking.
But the Supreme Court has been political since the day it was born. It’s just that the way it is political today is a symptom of the nastiness and futility of our politics.
Cast an eye over the history of the Supreme Court, and you will see no golden age of apolitical judging. Today’s conservative judicial activists—especially the older generation, such as Justices Scalia and Thomas—came onto the Court in reaction against an earlier generation of liberal activists. The liberals had established abortion rights, extended constitutional equality to women, increased the rights of criminal defendants, and briefly declared the death penalty unconstitutional.
The conservatives saw all of this as blatantly political activism. They sought control of the Court to restore the Constitution and protect law from politics—at least as they understood it. Now those conservative restorationists are the partisan activists who have broken Linda Greenhouse’s faith.
And what about those liberal activists who made the young Scalia and Thomas so indignant? They were the children of another revolution. Their predecessors—and some of them—also came onto the Court to restore the Constitution and save the law from politics. Only the activists they overthrew were conservatives: anti-New Deal justices who upheld “economy liberty” and “limited government” by striking down minimum-wage laws and the first wave of Franklin Roosevelt’s legislation.
And so it goes, back through judicial struggles over Reconstruction, slavery, and the now-esoteric bloodletting of the early nineteenth century, which pivoted on questions like the constitutionality of the national bank. Someone has always been trying to save the law from politics and restore the Constitution. But when you look at it clearly, saving the law from politics turns out to be a thoroughly political job.
First you have to convince people to accept your version of the boundary between law and politics. Then you have to get judges onto the bench who agree with you. The history of law is the history of politics, and vice-versa.
So why do so many smart people believe in the difference between law and politics? Why do they sincerely try to restore, or preserve, the line between the two, and get heartbroken when the line fails?
It’s not just naivete. The special role of the American courts, particularly the Supreme Court, is to administer principles that have won so decisively in politics that they get taken off the table.
The triumph of the New Deal brought in a generation of judges who implemented new principles—above all, the legitimacy of the regulatory and welfare state—across the legal system as the shared framework of a national consensus. The era of the Civil Rights Movement and the Great Society led a generation of elite liberals, including many of the current Justices, to embrace broader principles of personal liberty and equality, which they saw as perfecting the American social compact. They were busily implementing these in cases like Roe v. Wade when a right-wing insurgency took them by surprise.
The fight that started then has only become more pitched. There’s no line between law and politics now because our politics is too divided to generate one. We cannot begin to agree which issues should be taken off the table and handed to courts.
The conservatives on the Supreme Court are aligned, intellectually, politically, and institutionally, with lawyers and activists who want to dismantle much of the regulatory and welfare state and stop or reverse the extension of civil rights and liberties.
The liberals are aligned with those who have opposite aims: preserving and extending civil rights and upholding the regulatory state as a legitimate aspect of government. The country is divided, sharply and unrelentingly, over the same questions. What one side tries to take off the table, to turn from “politics” into “law,” the other side is always trying to grab back. With every grab, the idea that law and politics are separate becomes harder for anyone to believe.
Politics gives law its premises, its basic commitments. Law has its own kind of integrity, based in applying principles consistently, integrating competing goals, giving the same words the same meaning in different places and explaining why not when it doesn’t. If you have worked closely with judges who practice this craft, you know it isn’t just politics, any more than architecture is just drawing.
Law, in this sense, is essential work, but its fabric gets torn when the premises change—like ripping a weaving project suddenly into a new kind of garment. It changed in the Civil Rights era, and in the New Deal. And then it stabilized. Now it is not stabilizing, and the constant contest at all levels, from basic premises to craft, means that, increasingly, everything feels partisan. All that is solid melts into fetid air.
We’ve been denied what Americans seem perennially to wish for—a Supreme Court that is better than we are—surer, clearer, wiser and more unified. It turns out that was really a wish to be a better version of ourselves. On the one hand, it’s good to be rid of the illusion and stand on the real ground of democratic politics. On the other hand, what broken and disappointing ground it is.
By: Jedediah Purdy, Robinson O. Everett Professor of Law at the Duke University School of Law; The Daily Beast, November 13, 2014
“A Stand-Up Guy?”: And Now Mitch McConnell Is The ‘Pro-Woman’ Candidate!
Facing a spirited challenge from a woman half his age who is determined to turn out female voters to defeat him, Kentucky Republican Senator Mitch McConnell is portraying his role in resolving a sexual harassment scandal in the 1990s as evidence of his feminist bona fides. “I think I demonstrated 19 years ago, in the toughest possible position, how this ought to be handled,” he says, referring to his vote to oust Republican Bob Packwood from the U.S. Senate over allegations of sexual harassment and assault.
In a video distributed by the McConnell campaign, he explains, “I was chairman of the Ethics Committee charged with the responsibility of dealing with a member of my own party as chairman [of] the most important committee in the Senate. After investigating the case and bringing together all of the evidence I moved to expel him from the Senate. And the Senate on the verge of expelling him, he decided to resign.”
Most voters today barely remember Packwood, the good, the bad, and the ugly. It was a long time ago, back when Congress functioned, and bipartisanship was real. McConnell tells only part of the story, the part that’s favorable to him, where he looks like a stand-up guy for women. He leaves out the nearly three years he and his colleagues spent protecting Packwood, and his sparring with newly elected Senator Barbara Boxer, who wanted public hearings into Packwood’s behavior. He dismissed her efforts as “frolic and detour,” and warned if she didn’t back off, the GOP, which controlled the Senate, would retaliate with public hearings into any and all Democratic indiscretions.
Packwood chaired the Senate Finance Committee and as McConnell notes in the quote above, was one of the most powerful men on Capitol Hill. He had a reputation as a womanizer, which wasn’t uncommon for men of his generation in the Senate at the time. He was also having an affair with his chief of staff, who would later become his wife, and that wasn’t unusual either. “There were plenty of members having relationships with senior women, but they weren’t doing it with multiples of people all the time,” recalls a woman who held key staff jobs for several Republicans during this era and spoke to the Beast on condition of anonymity. “There were senators in the early 1990’s who fired women who wouldn’t have sex with them,” she said, “and because he (Packwood) knew other senators were doing these things, he couldn’t understand, ‘Why are they coming after me?’”
Sexual mores were changing. The all-male Judiciary Committee’s brutish grilling of Anita Hill over her accusation of sexual harassment against Supreme Court nominee Clarence Thomas blew the lid off the frat-club behavior on Capitol Hill and helped elect a record number of women to Congress in 1992, including Boxer. Her push for public hearings on Packwood irritated her Democratic male colleagues along with the Republicans. The humiliation of the Hill-Thomas hearings was still too fresh for them.
Two weeks after the 1992 “year of the woman” election, The Washington Post published a front-page story documenting ten women who’d had unwelcome approaches from Packwood. A women’s group put up an 800 number, and 27 more women responded. Many had worked for him over the years; he had been in the senate since 1969. “Until the women’s groups turned on him, which they did after that article came out, he’d been a champion of women,” says the former GOP staffer. She recalls lawyers poring over definitions of sexual harassment, a relatively new term, educating members and staff about power relationships in the workplace.
“The concept of a hostile work environment was being discussed, it was a new thing,” she says.
The Republican leadership circled the wagons, wanting to believe partisanship played a role. Asked about McConnell’s threat to hold hearings about Democrats, even dredging up Senator Ted Kennedy and Chappaquiddick, Majority Leader Bob Dole said that wasn’t too long ago, “It was ’69, the same year as the first allegation against Packwood.”
A month before the Ethics Committee vote that McConnell boasts about today, he and Dole were publicly defending Packwood. “It’s hilarious to think these are his feminist bona fides,” says a Democratic Senate aide, who doesn’t want to be quoted by name so close to an election that could return McConnell to office for another six-year term, this time perhaps as majority leader. “It’s so long ago, he thinks he can get away with it,” says the aide. The legislative maneuvering once so vivid blurs with the passage of time, and all that McConnell wants voters to know is that he finally did the right thing after all else had been exhausted.
“For McConnell it actually was a vote of conscience against his party and against his friend,” says the GOP staffer. She remembers that minutes before the full Senate was scheduled to vote on whether to accept the Ethics Committee recommendation to expel Packwood, he resigned. Additional revelations about how he altered his diaries, which had been subpoenaed, plus an additional underage woman stepping forward made it likely that the senate would reach the necessary two-thirds majority.
McConnell is an institutionalist; he likes to keep things secret. He is described as having been “appalled” by Packwood’s behavior, but he dragged his feet so long on bringing this scandal to a close that the statute of limitations long ago ran out. “I’m not sure anybody gets credit for a vote that passes with a majority,” says Jennifer Duffy with the Cook Political Report. “Even if he was ahead of his time on this, I’m more interested in what he’s done since.”
The Kentucky Senate race is rated a toss-up, but most insiders think McConnell has it. “He’s not likeable; she’s likeable,” says Duffy. “But that’s not what it’s about. It’s about who do you trust, and they (voters) know he will go to the mat for them on coal. They have questions about her.”
Refusing to say who she voted for in 2008 and 2012 has hurt Democrat Alison Lundergan Grimes. The coming days will test whether her campaign has the smarts to counter McConnell’s dubious claim that a single vote in September 1995 should inoculate him from all the anti-woman votes he’s taken since then.
By: Eleanor Cliff, The Daily Beast, October 20, 2014
“How The Supreme Court Protects Bad Cops”: How Many More Deaths And Riots Will It Take Before SCOTUS Changes Course?
Last week, a grand jury was convened in St. Louis County, Mo., to examine the evidence against the police officer who killed Michael Brown, an unarmed black teenager, and to determine if he should be indicted. Attorney General Eric H. Holder Jr. even showed up to announce a separate federal investigation, and to promise that justice would be done. But if the conclusion is that the officer, Darren Wilson, acted improperly, the ability to hold him or Ferguson, Mo., accountable will be severely restricted by none other than the United States Supreme Court.
In recent years, the court has made it very difficult, and often impossible, to hold police officers and the governments that employ them accountable for civil rights violations. This undermines the ability to deter illegal police behavior and leaves victims without compensation. When the police kill or injure innocent people, the victims rarely have recourse.
The most recent court ruling that favored the police was Plumhoff v. Rickard, decided on May 27, which found that even egregious police conduct is not “excessive force” in violation of the Constitution. Police officers in West Memphis, Ark., pulled over a white Honda Accord because the car had only one operating headlight. Rather than comply with an officer’s request to get out of the car, the driver made the unfortunate decision to speed away. The police chased the car for more than five minutes, reaching speeds of over 100 miles per hour. Eventually, officers fired 15 shots into the car, killing both the driver and a passenger.
The Supreme Court reversed the decision of the Court of Appeals for the Sixth Circuit and ruled unanimously in favor of the police. Justice Samuel A. Alito Jr. said that the driver’s conduct posed a “grave public safety risk” and that the police were justified in shooting at the car to stop it. The court said it “stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”
This is deeply disturbing. The Supreme Court now has said that whenever there is a high-speed chase that could injure others — and that would seem to be true of virtually all high-speed chases — the police can shoot at the vehicle and keep shooting until the chase ends. Obvious alternatives could include shooting out the car’s tires, or even taking the license plate number and tracking the driver down later.
The court has also weakened accountability by ruling that a local government can be held liable only if it is proved that the city’s or county’s own policy violated the Constitution. In almost every other area of law, an employer can be held liable if its employees, in the scope of their duties, injure others, even negligently. This encourages employers to control the conduct of their employees and ensures that those injured will be compensated.
A 2011 case, Connick v. Thompson, illustrates how difficult the Supreme Court has made it to prove municipal liability. John Thompson was convicted of an armed robbery and a murder and spent 18 years in prison, 14 of them on death row, because of prosecutorial misconduct. Two days before Mr. Thompson’s trial began in New Orleans, the assistant district attorney received the crime lab’s report, which stated that the perpetrator of the armed robbery had a blood type that did not match Mr. Thompson’s. The defense was not told this crucial information.
Through a series of coincidences, Mr. Thompson’s lawyer discovered the blood evidence soon before the scheduled execution. New testing was done and again the blood of the perpetrator didn’t match Mr. Thompson’s DNA or even his blood type. His conviction was overturned, and he was eventually acquitted of all charges.
The district attorney’s office, which had a notorious history of not turning over exculpatory evidence to defendants, conceded that it had violated its constitutional obligation. Mr. Thompson sued the City of New Orleans, which employed the prosecutors, and was awarded $14 million.
But the Supreme Court reversed that decision, in a 5-to-4 vote, and held that the local government was not liable for the prosecutorial misconduct. Justice Clarence Thomas, writing for the majority, said that New Orleans could not be held liable because it could not be proved that its own policies had violated the Constitution. The fact that its prosecutor blatantly violated the Constitution was not enough to make the city liable.
Because it is so difficult to sue government entities, most victims’ only recourse is to sue the officers involved. But here, too, the Supreme Court has created often insurmountable obstacles. The court has held that all government officials sued for monetary damages can raise “immunity” as a defense. Police officers and other law enforcement personnel who commit perjury have absolute immunity and cannot be sued for money, even when it results in the imprisonment of an innocent person. A prosecutor who commits misconduct, as in Mr. Thompson’s case, also has absolute immunity to civil suits.
When there is not absolute immunity, police officers are still protected by “qualified immunity” when sued for monetary damages. The Supreme Court, in an opinion by Justice Antonin Scalia in 2011, ruled that a government officer can be held liable only if “every reasonable official” would have known that his conduct was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable officer would have known that the shooting constituted the use of excessive force and was not self-defense.
The Supreme Court has used this doctrine in recent years to deny damages to an eighth-grade girl who was strip-searched by school officials on suspicion that she had prescription-strength ibuprofen. It has also used it to deny damages to a man who, under a material-witness warrant, was held in a maximum-security prison for 16 days and on supervised release for 14 months, even though the government had no intention of using him as a material witness or even probable cause to arrest him. In each instance, the court stressed that the government officer could not be held liable, even though the Constitution had clearly been violated.
Taken together, these rulings have a powerful effect. They mean that the officer who shot Michael Brown and the City of Ferguson will most likely never be held accountable in court. How many more deaths and how many more riots will it take before the Supreme Court changes course?
By: Erwin Chemerinsky, Dean of the School of Law at the University of California, Irvine: Op-Ed Contributor, The New York Times, August 26, 2014
“An Amusing Sideshow”: The Never-Ending Ben Carson Silliness
The silliness about a Ben Carson presidential bid just got sillier. With much fanfare, he recently gathered a flock of supposedly well-heeled donors, boosters, and political operatives in Palm Beach, Florida, and announced that he’s formed a PAC with the presumptuous name One Nation to prep for his 2016 White House bid. As in past times, when he’s teased the media and some of the more gullible GOP acolytes into actually thinking that his presidential talk is anything more than an amusing sideshow, it makes good copy. And just as in past times, when he pops off about a White House run, no one ever asks the obvious question: Beyond his endlessly milking of his rags-to-successful-neurosurgeon story and a few inane quips about President Obama and Democrats before packs of ultraconservative fawners and groupies, what makes him real political timber, let alone presidential stuff?
Then again, that’s really not the question anyone who buys into the Carson silliness would ask, since he has about as much of a chance of mounting a serious run for the White House as someone has of winning the Big Prize lottery without buying a ticket. Carson has currency for only one reason: He’s black and can be trotted out to make those ridiculous digs about Obama. He can say what GOP ultraconservatives and unreconstructed bigots want to say about Obama, but it just sounds better coming out of Carson’s mouth. The GOP has turned this tactic into a studied art with black conservatives such as Clarence Thomas. But Carson makes far better copy than Thomas, because, unlike Thomas, Carson actually speaks, and when he does, he’ll say something just ludicrous enough to get attention.
In the Obama era the GOP has worked overtime to tout, cultivate, prop up, and showcase a motley collection of black GOP candidates for a scattering of offices. The aim is two-fold: to find that someone who can have just enough luster and media appeal to be a counterbalance to Obama while at the same time allowing the party to thump its chest and claim it’s not racist.
Carson seemingly fits that double bill — actually, triple bill, because he gets even more attention for the GOP. But, more importantly, the notion of Carson as a presidential candidate touches a deep, dark, and throbbing pulse among legions of ultraconservatives who think that Obama and many Democrats are communists, that gays are immoral, and that the healthcare-reform law is “slavery,” as Carson infamously quipped, meaning a tyrannical intrusion by big government into Americans’ lives. Mainstream GOP leaders can’t utter this idiocy. They must always give the appearance that they are above the dirty, muddy, hate-slinging fray, so they leave it to a well-paid stalking horse like Carson to do their dirty work for them.
But let’s assume, for a moment, that Carson is the real presidential deal. Again, the road to the 2016 GOP presidential nomination will be a knock-down, drag-out, bruising, low-intensity war. The names that have already staked out turf for that battle — Rick Perry, Rand Paul, Jeb Bush, Ted Cruz, Marco Rubio, Chris Christie and a cluster of popular GOP governors — are deeply embedded in the GOP political hierarchy. They have money, means, and a dedicated, entrenched following. They have wooed and courted the key state party leaders and potential party delegates who will make or break a candidate in the key party primaries later next year. Their work has been ongoing, and it requires a team of professional, connected, and financially stout party officials to do the hard leg work required.
Then there is the gauntlet of the GOP presidential debates. These are equally vital for a potential candidate to prove that he or she has a firm grasp of the big-ticket policy issues: immigration reform, health care, education, taxation, jobs and the economy, and foreign-policy concerns. Who can forget the moment in the November 2011 GOP debate when Perry put his foot in his mouth when he couldn’t name the three agencies of government that he vowed to eliminate if elected president? His candidacy quickly was yanked off life support. A well-placed sound bite or pithy remark won’t cut it here. There has to be real substance behind the answers that serious presidential candidates must and are expected to give in the heat of a debate, in interviews, and in policy speeches to groups of potential supporters.
Carson’s supposed backers see all of this as a plus. That he is the old self-made, non-politician patriot who simply wants to unite the nation as hard political nostrums won’t fly, in part because of the hard-wired, encrusted, political-insider dominance over the presidential-vetting process, and in bigger part because Carson is nothing more than a curiosity, good for a few more spots on the TV-talk-show circuit. This is just enough to ensure the silliness of Carson will continue.
By: Earl Ofari Hutchinson, Associate Editor of New America Media; The Huffington Post Blog, August 5, 2014
“In A Partisan League Of His Own”: Alito, Doing Everything He Can To Be ‘A Corporation’s Best Friend’
On Monday morning, around 10 a.m. ET, much of the nation’s political and legal world turned to Scotusblog to learn the outcome of two of the year’s biggest Supreme Court cases. Moments later, the blog told us that Justice Samuel Alito was delivering both rulings.
And it was at this point that everyone immediately knew that conservatives had won both cases.
What about the possibility of a surprise? How could everyone be absolutely certain that Alito would side with the right? Was it really so inconceivable that Alito would honor precedent and play against type?
Actually, yes, it was inconceivable.
Ian Millhiser made a compelling case today that Alito is “the most partisan” justice on the bench, making it pretty clear what to expect when he’s written a ruling.
According to data by Washington University Professor Lee Epstein, Alito is more likely to cast a conservative vote than anyone else on the Court.
To be fully precise, that does not make Alito the Court’s most conservative member. That honor belongs to Justice Clarence Thomas, who is the only member of the Court who openly pines for the days when federal child labor laws were considered unconstitutional. Yet, while Alito can’t match Thomas’s radicalism, he is far and away the most partisan member of the Court.
To explain this distinction, Thomas is not a partisan. He is an ideologue. His decisions are driven by a fairly coherent judicial philosophy which would often read the Constitution in much the same way that it was understood in 1918. While this methodology typically leads him to conservative results, it does occasionally align him with the Court’s liberals…. What makes Alito a partisan is that there is no similar case where his judicial philosophy drove him to a result that put him at odds with his fellow conservatives.
To put this in perspective, note that Millhiser highlighted a striking detail: Alito is the only sitting justice who has never crossed over – in effect, breaking ranks with the usual ideological allies – in a closely divided case.
Nine years ago, you’ll recall that Alito was not George W. Bush’s first choice. Rather, the Republican president initially nominated Harriet Miers, the White House counsel at the time, for the lifetime appointment on the high court.
It was among the more foolish decisions Bush made, which ended in an embarrassing withdrawal.
Miers was obviously unqualified, but Bush’s second choice, Sam Alito, is in many ways worse.
Millhiser’s indictment on Alito’s partisanship, his activism, his reliance on a raw political perspective, his desire to be “a corporation’s best friend,” makes a persuasive case and is worth checking out.
By: Steve Benen, The Maddow Blog, July 2, 2014
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 