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“Teamwork On The Supreme Court”: Discipline On The Left Side, Disarray On The Right

Now that the current term is over for the Supreme Court, analysts are digging into the record to draw conclusions about what happened. In a fascinating analysis, Adam Liptak writes: Right Divided, a Disciplined Left Steered the Supreme Court.

The stunning series of liberal decisions delivered by the Supreme Court this term was the product of discipline on the left side of the court and disarray on the right.

In case after case, including blockbusters on same-sex marriage and President Obama’s health care law, the court’s four-member liberal wing, all appointed by Democratic presidents, managed to pick off one or more votes from the court’s five conservative justices, all appointed by Republicans.

They did this in large part through rigorous bloc voting, making the term that concluded Monday the most liberal one since the Warren court in the late 1960s, according to two political-science measurements of court voting data.

“The most interesting thing about this term is the acceleration of a long-term trend of disagreement among the Republican-appointed judges, while the Democratic-appointed judges continue to march in lock step,” said Eric Posner, a law professor at the University of Chicago.

For example, this session there were 19 SCOTUS decisions that were decided 5/4. In 10 of those, the four liberals voted together and were joined by one conservative. In contrast, the conservatives only voted together 5 times.

Ian Millhiser suggests that the problem for the conservative justices is that they “represent three – and possibly as many as five – distinct versions of judicial conservatism.”

* The Ideologue – Clarence Thomas
* The Partisan – Samuel Alito
* The Reaganite – John Roberts

He points out that Scalia purports to be an “originalist” (like Thomas), but mostly votes as a partisan. And he can’t seem to find a way to characterize Kennedy.

Liptak credits the cohesion among the liberal justices to the leadership of Justice Ginsberg. But I’m also interested in how they managed to pretty consistently pick off one of the conservative justices to vote with them. I was reminded of something Adam Winkler wrote about Elena Kagan almost 2 years ago. He described her as a justice in the mold of Earl Warren.

Warren didn’t accomplish these by embarrassing his colleagues or by making sharper arguments on the merits. Warren was a master politician, one who’d sit with the other justices and bring them along slowly and steadily to his side. He sought to understand other justices’ concerns and address them. Unlike most of today’s justices, Warren was willing to work the halls to gain five votes.

He says this about why Kagan was chosen to be the dean of Harvard’s Law School:

She was seen as someone who could bring together a faculty known for ideological and personal divisions that institutionally hobbled the law school, especially when it came to hiring. As dean from 2003 to 2009, she calmed faculty tensions, launched an aggressive hiring spree that netted 32 new professors, and earned praise from both left and right.

I remember that some liberals opposed Elena Kagan’s nomination. But it strikes me that President Obama would see “bridge-builder” as a necessary role for someone to play on the Supreme Court. It’s exactly how people describe his tenure as President of the Harvard Law Review.

If that’s the case, here’s what we know about the 3 women on the Supreme Court: the senior member is Ruth Bader Ginsberg – the Notorious RBG – tiny woman who throws quite a punch. Then there’s my hero, Sonia Sotomayor, the wise Latina with a heart as big as they come. And finally, there’s Elena Kagan, the bridge-builder. What a team!


By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, July 2, 2015

July 3, 2015 Posted by | Affordable Care Act, Marriage Equality, U. S. Supreme Court | , , , , , , | Leave a comment

“A Cop’s ‘Large Hunch’ About Criminal Wrongdoing Won’t Do”: The Supreme Court Just Checked Cops’ Power To Extend Traffic Stops

Cases involving the Fourth Amendment’s proscription on unreasonable searches and seizures are the sleepers of every Supreme Court term. Unless the justices are confronted with new technologies or particularly invasive government practices—like body-cavity or thermal-imaging searches—these decisions rarely grab headlines, leaving only prosecutors, defense attorneys, and law professors to ponder their significance.

But this can’t be the norm—not in the wake of Ferguson, with heightened awareness of abusive policing. Today more than ever, an understanding of what limits the Constitution places on police and the Supreme Court’s interpretation of those limits should be essential knowledge. Anything less, to borrow the words of Justice Sonia Sotomayor, would simply reduce the Fourth Amendment “to a useless piece of paper.”

Because at the root of Rodriguez v. United States, decided Tuesday by the Supreme Court, lies one of the most common, and perhaps the only, interaction law-abiding citizens will ever have with law enforcement: traffic stops. Being pulled over is so mundane, I wondered in February whether Chief Justice John Roberts had ever been inconvenienced by the practice, perhaps as a result of driving with a broken taillight—the kind of infraction that triggered the killing of Walter Scott in South Carolina earlier this month.

When Rodriguez was argued in January, Roberts asked how exactly traffic stops go down in real life, saying lightheartedly, “Usually, people have told me, when you’re stopped, the officer says, ‘License and registration.’” That drew laughs from the courtroom—the implication being that Roberts wouldn’t admit to ever having broken the law—but it also suggested that perhaps he doesn’t quite grasp how humiliating these encounters can be. This prompted a rebuttal in open court from Sotomayor, who told the chief that she’d been stopped and that the experience of being kept longer than the time required to give her a ticket was “annoying as heck.”

Whether Roberts eventually grasped as much is unclear, but he did join the six-justice majority that agreed that police can’t extend the length of a traffic stop beyond the time necessary to inquire into the alleged traffic violation. In a triumph for citizens’ rights, the Supreme Court ruled that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.”

That’s a big deal, if only because a lot can happen whenever police extend a traffic stop, even for a few minutes longer than necessary. To be sure, police already have wide latitude to stop anyone who is observed violating traffic laws; if probable cause exists that you’re not obeying the rules of the road, police are justified in stopping you. But what if, during the course of the stop, police also suspect you’re up to no good? Can they just hold you while they call in the dogs, as happened in Rodriguez, or for backup to conduct a wider criminal investigation? The lower courts that originally considered Rodriguez thought so, reasoning that a stop lasting, say, seven to ten minutes longer than necessary “was not of constitutional significance”—that the annoyance merely amounted to a “de minimis intrusion” on a motorist’s freedom of movement.

The Supreme Court didn’t buy that argument. “Authority for the seizure… ends when tasks tied to the traffic infraction are—or reasonably should have been—completed,” wrote Justice Ruth Bader Ginsburg for the majority. The court focused exclusively on the true “mission” of traffic stops—incidentals such as “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” All of these things are well and good when the initial stop is valid.

The problem arises when a well-meaning officer turns the traffic inquiry into a prolonged, crime-fighting one. Such unrelated “detours” away from the original traffic mission, the court observed, are unconstitutional without independent, reasonable suspicion that an actual crime has taken place. A cop’s “large hunch” about criminal wrongdoing won’t do.

That’s a commonsense approach—no one should be stopped for even a moment longer than absolutely necessary. But will the ruling deter police from trying other dilatory tactics? Rodriguez, for one, doesn’t explicitly forbid officers from, say, taking their sweet time while running your license plate or from engaging in “friendly” small talk aimed at eliciting consent. These end-runs are still largely acceptable, and only time will tell what other methods cops will employ to bide their time and divine suspicion where initially there was none.

Until then, the Supreme Court should be commended for making the right call and delivering a ruling that, though far from a blockbuster, should encourage anyone who cares about the continued vitality of the Fourth Amendment. In post-Ferguson America, there’s just no other section of the Constitution that matters more—the power of policing rises and falls with every pronouncement on it.


By: Cristian Farias, The New Republic, April 22, 2015

April 23, 2015 Posted by | 4th Amendment, Rodriguez v United States, U. S. Supreme Court | , , , , , , , , | Leave a comment

“People Have Told Me About Stops!”: The Chief Justice Has Never Been Pulled Over In His Life

In a little-noticed hearing last month, the Supreme Court considered Rodriguez v. United States, a case involving the Fourth Amendment’s protection against unreasonable searches and seizures. The core issue the justices confronted was how long a police officer could extend a routine traffic stop for purposes of calling in the dogs—drug-sniffing dogs.

At first blush, the question seems uncomplicated and slightly mundane. Who cares about police canines? The vast majority of drivers won’t be drug kingpins or carry illegal contraband in their cars. But the Fourth Amendment doesn’t exist to protect drug traffickers; it protects everyone from police overreach. Whatever the court decides on any Fourth Amendment case—the court accepts a number of them every year—should matter to everyone.

And judging from how oral arguments in Rodriguez played out, you have reason to worry about how the justices will rule. Because for an hour, they grappled, interrupted one another, suggested potential rules, posed lengthy hypotheticals, and in the end couldn’t seem to reach any consensus on how to decide the case. Viewed charitably, the hearing was a hot mess.

The apparent confusion in the courtroom was useful in one respect: It illuminated the cluelessness of Chief Justice John Roberts when it comes to traffic stops. Addressing the lawyer who was representing Dennys Rodriguez, the petitioner in the case, Roberts said, “Usually, people have told me, when you’re stopped, the officer says, ‘License and registration.’ ”

There was laughter in the courtroom. And the lawyer, recently retired federal public defender Shannon P. O’Connor, played along and responded with humor: “I’ve had friends that say the same thing, Mr. Chief Justice.”

But to anyone who closely watches the court’s jurisprudence on the Fourth Amendment, there’s nothing funny about Roberts’ naiveté about traffic stops, let alone his ignorance of the real frustration that comes with being kept even a second longer than necessary. The “seizure” of a person, in constitutional lingo, is in fact part and parcel of all of our recent conversations about policing in America. New York’s stop-and-frisk saga, the death of Michael Brown, and incidents involving use of force by police all implicate police departments’ and courts’ interpretation of the Fourth Amendment.

Justice Sonia Sotomayor was not amused. Later in the arguments, she turned to Roberts and said, “Chief, I’ve been stopped … [and] keeping me past giving me the ticket is annoying as heck, whether it’s five minutes, 10 minutes, [or] 45.” She placed a lot of emphasis on the word heck.

Sotomayor knows a little something about stops, and no, it has nothing to do with her upbringing in the Bronx or the fact that she has been pulled over before. She is the only sitting justice who actually has criminal trial experience—first as a prosecutor, and later as a district judge in Manhattan. She has presided over hearings calling for the suppression of illegal evidence, over criminal trials where that evidence was later at play, in civil cases against prison officials and police officers accused of false imprisonment or the use of excessive bodily force. She has seen how the Fourth Amendment plays out in real life.

This first-hand experience may explain why she was the lone dissenter in another case involving brushes with law enforcement. In December, she and Roberts were on opposite ends in Heien v. North Carolina, a case that green-lighted reasonable “mistakes of law” as the basis for a traffic stop. Though ignorance of the law is no excuse for an average citizen under any circumstance, the Supreme Court decided that it is a valid excuse for an officer who suspects you may be committing some offense, even if the offense is not on the books.

“To be reasonable is not to be perfect,” Roberts wrote, “and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.”

Roberts’ phraseology about “fair leeway” is lofty, but it turned the meaning of the Fourth Amendment on its head, confounding its role as community protection by the government rather than from the government. And “reasonableness,” at least in the context of policing, has taken on a life of its own at the Supreme Court—leading one scholar to note that its invocation is merely a cover for the court’s “own values regarding the need for the particular police practice at issue.”

Though Roberts’ deference towards police ignorance won the day in Heien, Sotomayor did take an opportunity to remind her colleagues that the ruling will have real-life effects on those most likely to endure uncomfortable encounters with the police: minorities and communities of color. She wrote that the court’s decision has the potential of “further eroding the … protection of civil liberties in a context where that protection has already been worn down.” She called these the “human consequences” of the court’s rulings on the Fourth Amendment and wondered “how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters could do so.”

Roberts, for all his intelligence, is ill-equipped to wrap his brain around that scenario; he has never been stopped by the police before. (The Supreme Court press office did not reply to a request for confirmation of Roberts’ lack of experience in this regard.) He did author a landmark ruling last year on the necessity of warrants prior to rummaging through a cellphone, but think of the factual premise: He probably does have a smartphone with extremely personal information.

Not so with close encounters with police. To assume that he and the rest of the court will issue a principled ruling on how many minutes a traffic stop can be extended—the answer, in a perfect world, should be zero—ignores that the court has already ruled constitutional far more invasive government practices, all under the guise of reasonableness, pat-downs and body-cavity searches among them.

America’s attention will turn to Obamacare and same-sex marriage when the Supreme Court entertains them later in the year. It is little cases like Rodriguez—easily lost in the news cycle—that have the greatest potential to undermine further the already-strained relationship between the community and the police.


By: Cristin Farias, Slate, February 11, 2015

February 13, 2015 Posted by | 4th Amendment, John Roberts, Rodriguez v United States | , , , , , , , | Leave a comment

“White Racism Won’t Just Die Off”: No Utopia Awaits When Retrograde Attitudes Like Donald Sterling And Cliven Bundy’s Are Gone

Plantation metaphors are generally considered an inelegant way to speak about America’s ongoing problems with racial discrimination. Such metaphors seemingly gloss over the long civil rights movement, which provided the center upon which 20th-century politics pivoted. Talk of plantations make it seem as though nothing has changed.

What, then, should we do when it is revealed that the Nevada rancher encroaching on public lands, who has captured the hearts of the GOP, also not so surprisingly believes that cotton picking and the institution of slavery of which it was a central part served black people well — especially black women — by giving us “something to do”?  What should we do when the owner of the L.A. Clippers insists his mixed-race black and Mexican girlfriend not bring black people to his games, even though the majority of players on the team are black?

(After we scratch our heads at the idiocy that would cause the local chapter of the NAACP to give such a man a lifetime achievement award, after clear knowledge of multiple racist incidents in his past, then perhaps we put the choice words of Lil Wayne and Snoop Dogg on repeat.)

What should we do when the Supreme Court chooses to enable and perpetuate our national campaign of dishonesty about the continued and pervasive challenge of racial discrimination by upholding Michigan’s ban on affirmative action?

What should we do when all that shit happens to black people in one damn week?

The staggering political and historical amnesia that allowed six justices to co-sign such a policy caused Justice Sonia Sotomayor to both write and read a 58-page dissent before the court. Sotomayor rightfully suggested that those, like Chief Justice John Roberts, who believe racial discrimination will end by restricting the right of race to be a consideration hold a “sentiment out of touch with reality.” Such a view reminds me of my academic colleagues who put the term “race” in scare quotations, and tell themselves that because race is a social construction – a biological fiction – that they no longer have to think about the real material impact that centuries of race-based discourse have had on constructing a racist world.

“Race matters,” Sotomayor wrote. And “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

The dangerous, backward and wrongheaded thinking of Cliven Bundy and Donald Sterling represent just two of the most obvious iterations of these kinds of “unfortunate effects.” And we are powerless to advocate for ourselves against systemic expressions of such thinking because the Supreme Court has chosen a “see no evil, hear no evil” approach to the problem.

Though the racial views of Bundy/Sterling on one hand and the Supreme Court on the other exist rhetorically at opposite ends of the spectrum, both point to an insidious and unchecked march of continued racism that disadvantages and harms black people, in particular. Bundy/Sterling vocally promote the kind of racial thinking that makes even the most conservative white person cringe, while Chief Justice John Roberts and five other justices promote the kind of colorblind view that seems to represent the highest expression of our national understandings of liberty and justice for all.

However, what Sterling’s and Bundy’s views demonstrate is the extent to which retrograde racial attitudes are alive and well among white men with money, power and control over the livelihoods of black people. And what the Supreme Court’s abdication of responsibility suggests is that the government has no responsibility to remedy the discrimination that clearly still exists in institutions that are run largely by white men who belong to the same generation and school of thought as Bundy and Sterling.

Bundy and Sterling represent a kind of past-in-present form of racism, one that contemporary generations of white youth have largely rejected in favor of a kind of multiracial, post-racial worldview. If we would only wait on time, this view goes, Bundy, Sterling and the likes of them will die off.

In its place, I want to forthrightly suggest, however, that we will not find a cosmopolitan racial future awaiting us; rather we (people of color) will be led to the slaughter by the likes of Paul Ryan, our August Ambassador for Austerity, and his suit-and-tie-wearing goons. At the fore of these colorblind approaches to social problems will be jovial, optimistic youth of all colors who balk at the notion that affirmative action or any affirmative remedies for ameliorating centuries of government-sanctioned inequality are either just or necessary for the functioning of the body politic.

Like Cliven Bundy and Donald Sterling, the right has no problem extracting and exploiting the labor of black and brown people for the gain of white people. The right has become more sophisticated at enacting such policies without reference to race, a view that supposedly means these policies are devoid of ill racial intent. Yet to quote Proverbs, “two cannot walk together unless they agree.” And despite Jonathan Chait’s desire to insist that those of us on the left come to conclusions about the racial intentions of those on the right in bad faith far too often, we are left with last week’s right-wing sycophantic spectacle in support of Bundy.

As for Donald Sterling and the NBA, scholars of sport and race have long pointed out how professional sports are set up in a kind of plantation structure, in which mostly black players, are literally bought, sold and traded, and paid a paltry amount in comparison to the owners of the teams for which they work. If we bring NCAA basketball into this picture, the comparisons are even more compelling.

What is most interesting here is the way that black women are maligned in the racial analysis of both Bundy and Sterling. Bundy suggests that since the end of chattel slavery, black women have been left to their own devices where we now engage in a revolving door of pregnancy and abortion. Moreover, he says, “their older women and their children are sitting out on the cement porch without nothing to do. You know, I’m wondering are they happier now under this government subsidy system than they were when they were slaves and they was able to have their family structure together and the chickens and a garden and the people have something to do?”

I guess all those histories about how slavery tore black families apart are mere left-wing propaganda.

As if rooting alleged social pathologies like the non-nuclear family within the bodies, moral and sexual choices of black women weren’t enough, Donald Sterling takes up the flip side of Cliven Bundy’s prurient narrative of black women’s bodies in his demands that his girlfriend not associate with black people.

Sterling tells his mixed-race girlfriend that he has a problem with her associating with black people because she’s “supposed to be a delicate white or a delicate Latina girl.” Uhm, what? First, she is black and Mexican. Second, the way this conversation is constructed black women are intrinsically indelicate, which means in this context unfeminine and unworthy of protection.

And unfortunately even though she seems to understand the fault lines and faulty thinking in Sterling’s comments, his girlfriend V. Stiviano also says, “I wish I could change my skin.” White supremacy breeds just this kind of apologetic self-hatred, such that this woman apologizes for being born in the skin she’s in. I seriously hope that sister gets free. Surely she knows that we are off the plantation, and we can choose not to love racists.

Plantation scripts may be inelegant. But they continue to resonate because they allow us to tell indelicate truths about America’s continually reinscribed and remixed disdain for black life and possibility. They remind us that racism is constituted through a heady mix of individual offense and systemic abdication of responsibility by the powers that be.  They show us the extent to which America still has an illicit love affair with white supremacy. The plantations themselves may be gone, but plantation nostalgia and plantation politics still deeply inform American life.  Plantation politics are supplanted not by individual or collective acts of symbolic protest but by strong leadership that commits to ameliorating racial injustice. What we should do in the face of such staggering steps backward remains to be seen, but it is clear that we must do something, or else it is America’s race politics that will have the sole distinction of being off the chain.


By: Brittney Cooper, Salon, April 29, 2014

May 2, 2014 Posted by | Cliven Bundy, Donald Sterling, Racism | , , , , , , , , , | Leave a comment

“Chief Justice Roberts, Meet Bundy And Sterling”: An Ugly Corner Of Contemporary American Life, Invisible To The Supreme Court

It’s challenging to keep up with the latest in racist tirades, so let’s attempt a brief review. Last week, Cliven Bundy, a Nevada rancher who became a conservative folk hero for his refusal to pay his debts to the federal government, said that he often wondered if black people fared better as slaves. Then, over the weekend, a tape of what appears to be the voice of Donald Sterling, the owner of the Los Angeles Clippers, surfaced, and it featured Sterling instructing his girlfriend to avoid being photographed with black people and to refrain from bringing African-Americans to the Clippers’ basketball games.

Bundy and Sterling represent an ugly corner of contemporary American life, but it is one that is entirely invisible in recent Supreme Court rulings. In the Roberts Court, there are no Bundys and Sterlings; the real targets of the conservative majority are those who’ve spent their lives fighting the Bundys and Sterlings of the world.

Chief Justice John Roberts has made a famous utterance on the subject of race, and it’s a revealing one. The remark came in a case in which the Justices addressed perhaps the most celebrated precedent in the Court’s history: Brown v. Board of Education. In that decision, in 1954, the Justices ruled that segregated public schools were by their nature unconstitutional. In 2007, the Justices evaluated one of the many attempts that communities have made to address the legacy of legal segregation in schools. Seattle used race as one factor to determine which schools some students attended; the goal of the local initiative was integrated schools. But the Court struck down the Seattle plan as a violation of the Constitution and of Brown. Even to ameliorate segregation, the consideration of race was unconstitutional. In Roberts’ evocative phrase, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In other words, those who were trying to integrate the schools were the ones doing the “discriminating.”

The majority engaged in the same kind of blame-shifting in a recent case, Schuette v. Coalition to Defend Affirmative Action. In response to an earlier Supreme Court decision permitting some forms of affirmative action at the University of Michigan’s law school, voters in the state passed a constitutional amendment barring any use of race in admissions. The question in the Schuette case was whether the Michigan amendment violated the U.S. Constitution. It was a close, difficult case, and the Court concluded, by a vote of six to two, that the answer was no; voters could ban affirmative action if they so chose.

It was as if the Justices in the majority and those in dissent were writing about different countries. Justice Anthony Kennedy’s opinion suggested that the debate over affirmative action should and could take place in a genteel, controversy-free zone. “In the realm of policy discussions the regular give-and-take of debate ought to be a context in which rancor or discord based on race are avoided, not invited.” (Yes, it “ought” to be, it just may be that it isn’t.) Kennedy said that the rights guaranteed by the Constitution include the people’s right to “try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.” Apparently, this noble endeavor includes banning affirmative action.

In her dissenting opinion, Justice Sonia Sotomayor wrote about a country where the Bundys and Sterlings still hold considerable sway. Indeed, she went beyond the simple bigotry of the Bundys and Sterlings and found that more subtle wounds of racism still exist in this country. “Race matters,” she wrote, “because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” Indeed, Sotomayor threw Roberts’s famous line back at him. She quoted him—“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—and then wrote, “It is a sentiment out of touch with reality, one not required by our Constitution, and one that has properly been rejected as not sufficient to resolve cases of this nature. While the enduring hope is that race should not matter, the reality is that too often it does. Racial discrimination … is not ancient history.”

The vile words of the rancher and the basketball tycoon showed just how right Sotomayor was. Even if her colleagues insist otherwise, racial discrimination, far from being ancient history, is as fresh and new as the latest alert on your phone.


By: Jeffrey Toobin, The New Yorker, April 29, 2014

April 30, 2014 Posted by | Discrimination, Racism, Supreme Court | , , , , , , , | 1 Comment

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