First Monday

October 1st, 2007

The Supreme’s begin a new term today — and who knows where we’ll end up. Below, the reads of the day regarding the possibilities and the High Court’s controversial docket.

The last portion of this post continues the fallout commentary on Mr. Thomas, who has made an art form of whining about how he got from there to here … it’s hard to be sympathetic to a man who looks at his accomplishments, sterling by all American standards, as crap; and who thinks WE are, too. When even Scalia thinks you’re a nut, it’s pretty stunning. I watched bits and pieces of his confirmation in his 60 Minutes piece last night, and found myself curling a lip at his “lynching” harangue to Congress, once again … even back then, it rang hollow and disturbingly self-righteous. In a nation with as many legitimate instances of racial bias as we endure, this Long Dong Silver business was shameful, seconded only by his confirmation. His little televised meltdown should been enough to indicate the character of the candidate.

The last bit here, about the Red Mass, would be just an interesting bit in any other time … but today, it’s a critical piece of our situation — the High Court is too Catholic in its bias to consider this “business as usual.” Makes me think of Opus Dai.

Jude

from Center for American Progress
http://www.americanprogress.org/

JUDICIARY — SUPREME COURT TO OPEN NEW TERM WITH CONTROVERSIAL SLATE OF CASES:

The Supreme Court today begins its term with “a socially and politically contentious docket.” The issues “include the legal rights of Guantanamo detainees, the constitutionality of lethal injections for executions, photo identification cards for voters and investors’ struggle to find accountability in cases of fraud.” There is also a racial discrimination case that “could provide a vehicle for limiting remedies available under one of the country’s oldest civil rights laws.” In addition to those already scheduled, “the court could add a blockbuster case to its calendar if the justices opt to take a Second Amendment case from Washington, D.C., that would test limits on the right to own guns.” The opening cases could “chart a course for whether the court is ideologically purely conservative or more balanced” this term. In its first term under Chief Justice John Roberts, conservative justices maintained a narrow but solid majority that consistently ruled in favor of conservative arguments. Last term, 23 cases divided the Court 5-4, with Bush appointees Roberts and Justice Samuel Alito voting together in 21 of those cases.

The Roberts Court Returns
New York Times editorial
September 30, 2007

The Supreme Court begins its new term tomorrow as bitterly divided as it has ever been. There are three hardened camps: four very conservative justices, four liberals, and a moderate conservative, Justice Anthony Kennedy, hovering in between. The division into rigid blocs is unfortunate, because it makes the court seem more like a political body than a legal one. Justice Kennedy’s tendency to vote with the most conservative justices also means that there is a real danger the court will do serious damage to important freedoms this term.

At his confirmation hearings, Chief Justice John Roberts told the Senate he had “no agenda,” and famously compared his role to that of an umpire calling balls and strikes. He has also said he wants more consensus on the court, and fewer 5-to-4 decisions. Those were fine sound bites, but in reality Chief Justice Roberts quickly settled into a bloc with his fellow conservatives Samuel Alito, Antonin Scalia and Clarence Thomas. The controversial 5-to-4 decisions have kept coming.

It is striking how conservative the court is now. On race, it was for decades a proud force for racial integration. Last term, it ordered Seattle and Louisville, Ky., to stop their voluntary efforts to have children of different races attend school together. The court, once an important force for fairness in American society, now routinely finds dubious legal excuses to deny relief to criminal defendants, consumers and workers who have been mistreated.

The Roberts bloc has not adhered to any principled theory of judging. Its members are not reluctant to strike down laws passed by Congress, as critics of “judicial activism” are supposed to be, or reluctant to overturn the court’s precedents. The best predictor of how they will vote is to ask: What outcome would a conservative Republican favor as a matter of policy?

The court’s 4-to-4 split means that, on virtually any controversial question, Justice Kennedy decides what American law is. Last term, he was in the majority in all 24 cases decided by 5-to-4 votes. His opposition to abortion rights and affirmative action has pushed the court further to the right on those issues.

The court’s hyperpartisan approach to the law is unhealthy. The reason the Bush v. Gore ruling was so damaging to the court’s reputation was that the justices appeared to be acting as partisans, tossing aside long-held views to reach the political result they wanted. Today, the justices seem just as political, wrapping their views on controversial social issues in neutral-sounding legal doctrines.

The case that will most test the court’s ability to rise above partisanship is a challenge to Indiana’s voter ID law. Indiana is one of a growing number of states that require voters to present a government-issued photo ID. Such laws have been billed as anti-vote-fraud measures, but there is little evidence of vote fraud at the polls. The Republicans who have pushed these laws are trying to make it hard for poor and minority voters, who are less likely than other groups to have drivers’ licenses — and more likely to vote Democratic — to cast ballots. The court has traditionally championed voting rights, but a conservative majority may boost Republican chances in 2008 by endorsing this disturbing barrier to voting.

On Wednesday, the court will hear arguments in another voting case of particular interest to New Yorkers, a challenge to the use of judicial conventions, undemocratic institutions dominated by party hacks, to select state court judges. Lower courts rightly held this highly undemocratic system to be unconstitutional.

The court has also agreed to hear a challenge to the use of lethal injection to carry out the death penalty. There is strong evidence that the injections, which use a “cocktail” of drugs to put prisoners to death, work erratically and are needlessly painful. Justice Kennedy, who is concerned about death penalty abuses, may provide the fifth vote to hold that these executions violate the Eighth Amendment ban on cruel and unusual punishment.

The court will again take up civil liberties post-9/11 in a case about whether detainees held at the naval base in Guantánamo Bay have the right to challenge their confinement through habeas corpus. In the Military Commissions Act, Congress tried to take that right away from the prisoners. The court should hold that the Constitution requires that the detainees be given their day in court.

If the justices act as umpires and call balls and strikes, this term could produce some real victories in voting rights, the death penalty and civil liberties. It could result in some terrible setbacks in these areas, however, if — as critics of the Roberts court have said — the court is calling balls and strikes but has moved the strike zone far to the right.

First Monday, First Tuesday
Jeffrey Toobin, HuffPo
October 1, 2007

The first Monday in October — today — is opening day for the Supreme Court’s year and the date most associated with Court. When it comes to the future of the Court, though, the day that matters far more is the first Tuesday in November, Election Day.

In the Senate debates over President Bush’s nominees to the Court, John G. Roberts, Jr., and Samuel A. Alito, Jr., Republicans were fond of reminding Democrats, “Elections have consequences.” They sure do — as the last year on the Court proved. Roberts and Alito joined a conservative bloc that included Clarence Thomas, Antonin Scalia and (usually) Anthony Kennedy to rewrite the law in some of the Court’s most crucial areas — like abortion, school integration, and church-state relations. This year, there may be more of the same, as the Court is poised to take on such combustible topics as the constitutionality of gun control, the trials of the detainees at Guantanamo Bay, the new photo ID requirements for voters, and the permissibility of lethal injections for executions.

All of these changes, however, may look modest and preliminary if a Republican wins the next election. The next three likely departures on the Court all come from its embattled liberal wing. John Paul Stevens, David Souter, and Ruth Bader Ginsburg are all expected to leave the Court in the next few years. Conservative replacements will unite the Court in a way the nation has not seen since the mid-1960s, when Chief Justice Earl Warren led a phalanx of liberals. Of course, the Roberts Court would present an ideological mirror image of that increasingly distant epoch.

This is as it should be. The Constitution allows presidents to shape the Court in their images. All presidents try, and most succeed. Informed voters will recognize that they’ll not only be choosing a president in 2008, but shaping the Supreme Court for decades to come.

Jeffrey Toobin is the author of The Nine: Inside the Secret World of the Supreme Court, which has just been published.

From Unity To Polarized Principles
Will The New Supreme Court Term Yield To Predicted Split Decisions?
Benjamin Wittes, The New Republic via CBS
Oct. 1, 2007

It’s the first Monday in October, the day the Supreme Court begins its term, and I’m supposed to be salivating. For legal writers, after all, this is opening day of a new season. And the justices have some big cases on their schedule: the fate of Guantanamo detainees, the constitutionality of lethal injection, and voter-identification laws. They’re sure to add more in the coming days.

And yet my salivary glands are on strike.

In fact, thinking back on the last term, I can’t help a certain feeling of dread about this coming one. It’s not the decisions with which I expect to disagree–though there are certainly some of those. It’s the sense, rather, that the court has embraced the most childish and cartoonish kind of ideological divisions. It’s the sheer volume of 5-4 decisions we saw last term and should fear again this one, combined with the needless paucity of unanimous opinions.

Most of all, it’s the fact that not a single justice seems to be standing against the trend.

Chief Justice John G. Roberts Jr. has spoken eloquently about the importance of unanimity and the corrosive effect of separate opinion-writing on the court’s institutional capital. For example, in a speech at Georgetown last year, he emphasized that while “division should not be artificially suppressed … 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.” And a year ago, I was all ears. The first term of the Roberts Court had raised hopes that, perhaps, with new leadership, the court could break through its sterile ideological line-ups more frequently and speak more often as a court, rather than as a collection of individual justices. Last term dealt that dream a severe blow. Some issues — most notably global warming and the execution of the mentally ill — produced wins for liberals. Other issues — abortion, affirmative action, and campaign finance — yielded victories for conservatives. But it’s hard to identify important areas in which the court spoke with a strong voice that rose above the polarized views of its members. The court, rather, performed exactly as believers that it is nothing more than a political institution would have predicted. And it made fools of those of us who believe in it as something more elevated: an institution that aspires to rule based on principle. It was depressing, and the most depressing part is that sinking feeling that the justices will do the same thing again beginning today.

The numbers are stark. In Roberts’ first term, according to the Harvard Law Review, the justices disposed of 36 of their 81 cases unanimously and divided 5-to-4 in only nine of them. That 44 percent rate of unanimity — defined as a single opinion with no concurrences or dissents — was the highest in the nearly four decades that the law review has published this particular statistic.

What’s more, not since the 1987 term had the court split 5-to-4 in a smaller percentage of cases. These data somewhat overstate the love that broke out that year. Because Justice Samuel Alito did not arrive until midway through the term, the justices split 5-to-3 in a few cases that probably would have garnered 5-to-4 splits had the court been fully staffed. And it is marginally easier to reach unanimity with only eight justices than it is with nine. Still, with a new chief and a pending nomination, the court that year put on a display of unity unprecedented in its recent history.

Last term, with the heat of the nomination process turned off, was an entirely different story. The justices managed unanimity (according to the Harvard Law Review’s definition) in only 13 of their 73 decisions, a mere eighteen percent. In 23 cases — or 32 percent of the caseload — they split 5-to-4. You have to go back to 1980 to find a year in which the court decided a lesser percentage of its cases unanimously, and and not since the Harvard Law Review began tracking 5-4 decisions in 1981 has the rate of such splits exceeded last term’s. The court, in other words, lurched from a moment of unusual unity to a particularly dramatic polarization.

The polarization was far worse than it needed to be, both numerically and qualitatively — and there’s blame enough to go around for that. The conservatives treated recent precedents of the court with either open hostility or something approaching a smirk; the liberals sometimes neared hysteria over incremental changes in the law. Not one of the nine justices was willing to apply to the federal partial-birth abortion statute the logic the court had unanimously articulated the year before for a New Hampshire parental notification statute — in which it had refused to throw out the statute on its face but had ordered the lower courts to block applications of it that would run afoul of its case law.

The chief justice’s own work was mystifying. He knew what was at stake: In an interview published in The Atlantic early last term, he argued, “If the Court in [the fourth chief justice John] Marshall’s era had issued decisions in important cases the way this Court has over the past thirty years, we would not have a Supreme Court today of the sort that we have.” That, he said, “suggests that what the Court’s been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up.” If the court does not “refocus on functioning as an institution,” he argued, “it’s going to lose its credibility and legitimacy as an institution.”

Yet even having staked some of his prestige on unanimity, Roberts seemed willing to give up next to nothing jurisprudentially to achieve it. To be sure, he has largely refrained from piling on by writing concurring opinions or duplicative dissents. And he has sometimes declined to overturn precedents other conservatives wish to attack; for example, he and Alito did not vote to overturn the court’s decision upholding the McCain-Feingold campaign finance law, preferring instead to carve out a yawning exemption from its strictures for certain types of “issue ads.” Still, on the big votes, Roberts was just as predictable as every other justice last term, and he did not shy away from aggressive action he must have known would provoke liberal colleagues. Indeed, it was Roberts and Justice Stephen Breyer who, with equal fervor, went mano a mano over the legacy of Brown.

Particularly infuriating was the court’s June decision on the use of race in public school placement. The justices cast their disagreement as one over the legacy of Brown v. Board of Education, attempting to argue that Brown required the holding they advocated and that the other side was betraying the Warren Court’s proudest moment. This is utter nonsense on both sides. There is no dispute among the justices about Brown and its immediate progeny, which held that state-sponsored racial segregation was unconstitutional and, where it existed, race-conscious steps to dismantle it were proper, even required. The only dispute was over a question the court has never authoritatively answered and on which its prior pronouncements are in great tension: Whether and when, in the absence of state-sponsored segregation, race-conscious measures are appropriate to ensure ethnic diversity. To one degree or another, nearly all of the justices conflated these two questions, making the decision far more contentious than it needed to be.

Well, now it’s a new day and a chance to start over. And who knows? A few months from now, last term may seem far away; the brethren may seem once more fraternal; and the institution may look a little more like a court ruling on law than a fractious bunch of politicians striking exactly the poses their constituencies expect of them. But I’m not holding my breath. And I’m not excited about watching them try.

AtThe Supreme Court It’s Kennedy’s World
The High Court’s Docket This Year Offers Major Cases Likely To Be Decided By One Man
Justice Anthony Kennedy is increasingly the deciding vote in the Supreme Court’s 5-4 decisions
Andrew Cohen, CBS News
Sept. 30, 2007

If you are, like me, watching the American Movie Channel’s fascinating series “Mad Men,” you know that a recent episode offered a look back at some of the television advertisements used by campaign officials in charge of John F. Kennedy’s 1960 presidential bid.

“Kennedy, Kennedy, Kennedy, Kennedy” went the jingle, then a refreshing break from the dour ads offered by Vice President Richard Nixon, and now an iconic part of the Kennedy mystique.

We all might as well get used to singing “Kennedy, Kennedy, Kennedy, Kennedy” as we embark upon another great crusade that is the 2007-2008 term at the United States Supreme Court. This term, perhaps even more than the last one, Justice Anthony Kennedy is sure to leave his mark in the law as the author (or at least swing vote) in a series of predicted 5-4 decisions.

Forget the hullabaloo over Justice Thomas on the right or Justice Stevens on the left. Ideological alignments being what they are these days, it’s Kennedy’s legal world - we are just living in it.

For example, Kennedy almost certainly will cast the deciding vote in Baze v. Rees, a Kentucky case that will shape the nation’s lethal injection procedures in capital cases for years to come. At issue in the Bluegrass State is whether the Commonwealth’s injection “cocktail” - the mix of drugs given to condemned prisoners on the day of their execution - is administered in the right order with the right dosages to ensure that the prisoner does not run afoul of the 8th Amendment’s ban against “cruel and unusual punishment”

The four more conservative Justices on the Court almost certainly will declare that each state is free to develop its own protocols for putting condemned inmates to death, and that executions by definition cannot be free from pain and suffering on the part of the executed. The Court’s more liberal members, on the other hand, likely will call for stringent requirements that prison officials must meet before they can continue to execute people in this fashion.

I’m betting that where Justice Kennedy comes down in Baze will determine which side wins the case. And, if you are looking to the past for any sense of the future, remember that Justice Kennedy voted to ban the execution of mentally retarded death row inmates as well as those capital murderers who killed before they were 18 years old. It’s a case that has huge national significance - several states, including Florida and California, already have halted capital punishment until they can ensure better injection protocols.

The Justices this term will also tackle several important cases with electoral and political ramifications. Just last week the Court announced that it would hear and decide - in time to make a difference in the 2008 presidential election - a voter fraud case out of Indiana labeled Crawford v. Marion County that will ripple into Michigan and other states with similar legislation. Lawmakers in the Hoosier State passed a new measure that requires voters to show government-issued photographic identification at the polls. Six other states require photo IDs and 20 more require some sort of identification, barriers to voting that did not exist prior to the 2000 election recount fiasco in Florida.

Republican politicians - and inevitably conservative judges - say a state’s interest in ensuring that there is no voter fraud trumps any inconvenience caused by requiring the IDs. Democratic politicians - and inevitably liberal judges - say that the law was passed by Republicans in order to make it more difficult for the poor and minorities (by the way, traditionally Democratic voters) to have their votes counted. The Democrats say that Indiana’s law focuses upon folks who show to vote but does not cover folks (traditionally Republicans) who vote by absentee ballot. Justice Kennedy almost surely will be in the majority here, too.

In fact, politics and the law meet right away - on the first day of the Court’s calendar for the term - when the Justices consider a case out of Washington that involves a challenge to that state’s rules allowing candidates to declare their affiliation to a party without that party’s consent. The Justices also will hear a remarkably similar case out of New York. Should a candidate have a right to “freely associate” with the party of her choice under the First Amendment? Or does that right belong to the party itself? We’ll know in a few months.

Thanks to a Missouri case involving a business deal gone bad we’ll also know in a few months what the Court thinks about allowing investors to sue “third-parties” like lawyers and accountants and bankers when the companies those professionals represent commit securities fraud. In this post-Enron world, a victory for the investors could open up those sorts of professionals to huge liabilities and change the way they interact with publicly-traded companies. A victory for the company would severely limit the ability of investors to recoup their money when a business venture goes south for the wrong reasons.

Speaking of the wrong reasons, we come now to three cases which legal scholars and historians likely will focus upon after this term has come and gone. In one case, the Court will interject itself in a dispute between the White House and (get this) the state courts in Texas (of all places) over the scope of jurisdiction domestic courts must afford to rulings by the International Court of Justice. President Bush says that Texas must comply with an ICJ ruling that directed the Texas courts to reconsider a case of a Mexican national who was convicted and sentenced to death in the Lone Star State without being afforded the right to meet with a consular official. Bet on the President in this one.

But don’t bet on the President when it comes to the two consolidated terror law cases the Court has agreed to consider. The Justices will tackle the legitimacy of certain provisions of the Military Commissions Act of 2006, a shoddy piece of legislation hustled through a lame-duck Congress. The Act stripped vital habeas corpus rights - the right to go to federal court to challenge detention by the government - away from terror suspects and others. With Justice Kennedy leading the way, I suspect a majority of Justices will declare that the legislators overstepped their authority.

What else? The usual stuff. The Court will once again try to figure out federal sentencing rules and in the process sort out a mess the Justices themselves created when they declared a few years ago - again, in a Kennedy opinion - that the Federal Sentencing Guidelines were no longer mandatory. Of particular issue in the case is whether a Reagan-era sentencing policy that requires judges to sentence defendants convicted of crack cocaine crimes at a 100-1 ratio of those convicted of “powder” cocaine crimes.

The Justices also will hear at least one employment discrimination case, several tax cases, and one case out of Louisiana with some particular resonance now that we have endured the saga both of the Jena Six and the latest O.J. Simpson caper. Seems a local prosecutor down there, after striking from the jury pool all black candidates, twice mentioned Simpson’s name and compared “the Juice” with the defendant, a man named Allen Snyder. Not surprisingly, Snyder was convicted and sentenced to death. Also not surprisingly, he sued for help: no doubt Snyder hopes it truly is Justice Kennedy’s world so that he can keep living in it for the rest of his natural days.

Voters’ rights in peril
Cynthia Tucker, Baltimore Sun
October 1, 2007

George W. Bush’s domestic legacy will be a deeply conservative U.S. Supreme Court, one that has shown its impatience with efforts to redress lingering racial discrimination. It ruled against efforts in Louisville, Ky., and Seattle to keep schools racially balanced.

Let’s hope the Roberts court is more progressive in its views toward voting. The Supreme Court is the last bulwark against an invidious effort to disenfranchise poorer voters, many of them black and brown, through highly restrictive voter ID laws. Such laws have been passed in states around the country, from Arizona to Indiana to Georgia.

The nation’s highest court has agreed to hear an appeal of the Indiana law, and its ruling will likely be issued just in time for the 2008 presidential elections. The law - and similar ones in other states - should be struck down. By requiring voters to show a state-sponsored ID such as a driver’s license, those laws create unfair obstacles for elderly and poor voters who are unlikely to own cars and, therefore, unlikely to drive.

Americans who are safely ensconced in the economic mainstream may find it hard to believe that there are law-abiding voters out there who don’t have a driver’s license. In writing the majority opinion upholding Indiana’s law, Judge Richard Posner, who sits on the U.S. 7th Circuit Court of Appeals, certainly had that view.

“It is exceedingly difficult to maneuver in today’s America without a photo ID. Try flying, or even entering a tall building such as the courthouse in which we sit,” he wrote.

But there are still voters in small towns and rural hamlets who have never flown, never entered a federal courthouse and never rented a movie from Blockbuster. Yet they, too, have the right to vote.

It took generations of progress and several constitutional amendments before this democratic republic extended the vote to all American adults. But the universal franchise is now at the heart of our civic enterprise, and it’s one of the values we hold up to other countries as a model. In this country, it shouldn’t matter whether you’ve ever flown on a plane or driven a car if you want to vote.

Proponents of voter ID laws - who are usually Republicans - claim that they are essential for weeding out fraud at the ballot box. There’s just one problem: There is virtually no evidence that fake voters show up at the polls. The actual problem is getting eligible voters to turn out, not having the polls overrun by illegal immigrants or other fraudulent voters.

So why are Republicans insisting on rigid voter ID laws? They want to block some elderly and poorer voters from the ballot box, because those groups are more likely to support Democrats than Republicans.

Even Judge Posner acknowledged the partisan divide. “No doubt most people who don’t have photo ID are low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates,” he wrote. Yet he still found that the law didn’t violate any constitutional standards. Unbelievable.

The nation’s highest court lost credibility when it entered the highly controversial 2000 presidential contest and installed Mr. Bush as president. Conservative jurists violated one of their bedrock principles - states’ rights - to support the Republican candidate. That ruling left a pall over the court that has not disappeared, tainting its reputation for holding itself apart from partisan disputes.

Chief Justice John G. Roberts Jr. and the conservative majority should go out of their way to avoid any more rulings with such a dubious partisan cast. If they strike down the Indiana law, they’ll not only help restore the credibility of the court but also preserve a fundamental constitutional principle: the universal franchise.

Cynthia Tucker is editorial page editor for The Atlanta Journal-Constitution.

Supreme Court starts term narrowly divided
Michael Doyle, McClatchy Newspapers
Sunday, September 30, 2007

WASHINGTON — Big business and foreign prisoners have high hopes for the Supreme Court term that starts Monday.

Business wants protection from lawsuits. Prisoners want freedom. The court is in the middle, divided along lines that defy simple partisan calculations and led by a chief who’s still finding his way.

Wild cards may yet shape the 2007-08 term. The 43 cases accepted for argument so far are only about half the total that the court is likely to consider before the term ends next June. Some potential high-profile controversies, such as Washington’s gun ban and Louisiana’s death penalty for child rapists, could ripen later this year.

“There will be a lot more coming,” predicted Lisa Brown, the executive director of the American Constitutional Society.

Still, Chief Justice John G. Roberts starts his second full year on the job certain of some things.

He knows that two cases already stand out. One involves corporate liability. One involves Guantanamo Bay prisoners. Both have attracted big guns.

Roberts also knows that he leads a closely divided court, which has defied his stated intention of forging greater unanimity. One-third of the court’s decisions last term came on the narrowest possible margin, 5-4.

“It was a record number, at least in modern memory,” Georgetown University law professor Susan Low Bloch noted. “There were also a record number of dissents announced from the bench.”

Roberts knows, too, that although he’s the chief, Justice Anthony Kennedy remains the court’s linchpin. Kennedy was in the majority in every one of last year’s 5-4 decisions. Overall, he was in the majority 97 percent of the time last term.

Not least, the 52-year-old Roberts knows more about judicial vulnerabilities, after a still-unexplained seizure he had during his summer vacation. Roberts has recovered, but the episode highlighted how unexpected ill health can quickly upset a court in which one justice is 86, three others are older than 70 and one already has confronted colon cancer.

In public, all the justices appear healthy. Several spent the summer teaching overseas. One, Justice Clarence Thomas, has been preparing for the publication Monday of his memoir, “My Grandfather’s Son.”

All will convene on their fabled first Monday of October, starting with a dispute over Washington state’s “blanket” political primary. It allows primary candidates to identify their party preferences on the ballot, even if they aren’t party members. Consequently, the two top vote-getters facing each other in the general election might belong to the same party.

Political junkies are closely watching Washington State Grange v. Washington State Republican Party, and the California Democratic Party has filed a brief supporting the challenge to Washington’s primary. It resembles California’s blanket primary, which the Supreme Court struck down in 2000.

When it comes to court kibitzing, nothing may surpass the hearing Oct. 9 in a corporate liability case, Stoneridge Investment Partners v. Scientific-Atlanta. Nearly 30 outside groups have weighed in with amicus briefs, a number more commonly found around hot-button social controversies such as abortion.

“It’s only a little bit of hyperbole to call this case security law’s Roe v. Wade,” Georgetown University law professor Donald Langevoort said. “It’s the biggest security law case in a decade.”

The case pits investors against companies. The outcome will determine, for instance, whether investors might sue an accounting firm for contributing to the misdeeds of a company such as Enron.

Scientific-Atlanta makes set-top boxes for televisions. The company allegedly sold the boxes at an inflated price to Charter Communications. Scientific-Atlanta then allegedly paid the extra money back to Charter in the form of higher ad rates. Charter used this $17 million in spurious ad revenue to inflate its profits.

Investors sued Charter. They also sued Scientific-Atlanta, but the company claims it can’t be sued for securities fraud because it didn’t directly deceive or manipulate the market. Investors retort that they need to be able to confront the associates of corporate bad actors.

“Scandals which have resulted in the spectacular implosion of some of Wall Street’s biggest names have one thing in common; the degree to which the fraud could never have been accomplished but for the active, purposeful and intentional participation of third parties,” the Pennsylvania Public School Employees’ Retirement System argued in one brief.

The Bush administration is siding with the corporations, and the Roberts court is known as a business-friendly forum. The Chamber of Commerce, which has filed an amicus brief siding with Scientific-Atlanta, won 13 out of the 15 cases in which it filed amicus briefs last term. So far this term, according to a tally by veteran Washington lawyer Tom Goldstein’s ScotusBlog, roughly half the cases being considered deal with business.

“The court’s docket has increasingly been taken up with important commercial cases,” Goldstein said.

Lakhdar Boumediene’s case matters for other reasons. It’s the latest in a string of challenges to the Bush’s administration handling of war-on-terrorism defendants.

An Algerian native, Boumediene has been imprisoned for five years without facing criminal charges. The Bush administration considers him an enemy combatant.

He says he’s innocent. He and fellow Guantanamo Bay prisoners want the right to challenge their open-ended incarcerations through writs of habeas corpus.

The Bush administration says the Guantanamo detainees lack that right and that, in any event, Congress stripped foreign prisoners of any potential habeas corpus claims with a 2006 law. Officials refuse to give the prisoners key details relating to their detentions, such as the names of their accusers.

“But I do not know if this person is Bosnian, Indian or whatever,” prisoner Ait Idir protested at a tribunal hearing. “If you tell me the name, then I can respond and defend myself against this accusation.”

“We are asking you the questions,” the tribunal president replied, according to the transcript.

In a rare move, the high court refused at first to hear the prisoner’s appeal, then changed its mind last June. A date for the oral argument hasn’t been set, but nearly two dozen amicus briefs already have been filed.

Mr. Justice Whoop-dee-damn-doo
Marty Kaplan|, HuffPo
September 30, 2007

We’re working our way backward through the ’90s. With OJ Simpson again on the national stage, it was inevitable that Clarence Thomas would follow. The Thomas confirmation hearings were a milestone in real-time mass-mediated American psychodrama. Before the Juice, there was Long Dong Silver. Before the bloody glove, there was the pubic-hairy Coke can. Before the suicidal white Bronco driver, there was the victimized black conservative martyr. Before there was OJ’s jury nullification, there was Thomas’ “high-tech lynching,” which acquitted him right onto the Supreme Court.

I still recall being so obsessed by the Judiciary Committee hearings that I listened to them through an earphone while pushing a baby stroller through the mall. I remember watching Arlen Specter and Orrin Hatch hard at work, attempting to destroy Anita Hill, and finally understanding what the Salem Witch Trials must have been like. I remember being torn between awe at Chairman Joe Biden’s pomposity and amazement at the goings-on in his scalp. I remember calling my friend Jack Rosenthal, then the editor of the editorial page of the New York Times, nearly every day, haranguing him to stiffen the Senate’s opposition. To this day, I recall my revulsion at George H.W. Bush’s cynically gleeful, preposterous attempt to frame the Thomas nomination as a filling of the Thurgood Marshall seat.

It turns out, of course, that the alarming character traits Anita Hill observed in her boss Clarence Thomas were nothing compared to the nutcase judicial temperament he has since revealed. At his confirmation hearing, Thomas — like Marshall before him, and Roberts and Alito after him — paid tribute to stare decisis, the importance of precedent in guiding Supreme Court decisions. But no less an authority than arch-conservative fellow Associate Justice Antonin Scalia told Thomas’ biographer, Ken Foskett, that Thomas “doesn’t believe in stare decisis, period.” If you think nutcase is too strong a word to summarize that view, listen again to Scalia, as quoted in this Terry Gross interview with Jeff Toobin about his new Supreme Court book, The Nine:

Mr. TOOBIN: Clarence Thomas is not just the most conservative member of the Rehnquist court or the Roberts court. He’s the most conservative justice to serve on the court since the 1930s. If you take what Thomas says seriously, if you read his opinions, particularly about issues like the scope of the federal government, he basically thinks that the entire work of the New Deal is unconstitutional. He really believes in a conception of the federal government that hasn’t been supported by the justices since Franklin Roosevelt made his appointments to the court. You know, I went to a speech that Justice Scalia gave at a synagogue here in New York a couple of years ago, and someone asked him, `What’s the difference between your judicial philosophy and Justice Thomas?’ I thought a very good question. And Scalia talked for a while and he said, `Look, I’m a conservative. I’m a texturalist. I’m an originalist. But I’m not a nut.’ And I thought that…

GROSS: Meaning that he thinks Thomas is one.

Mr. TOOBIN: Well, that was certainly the implication.

GROSS: Mm-hmm.

Mr. TOOBIN: It was pretty amazing. I mean, Thomas is well outside the mainstream, even of the conservatives on the court.

The Roberts-Scalia-Thomas-Alito-and-sometimes-Kennedy fivesome on the Court today is the closest the country has come to the domination of the third branch of government by the same ideology that gave us the Bush administration and its Congressional and Fourth Estate enablers. If Justice Stevens can hang on, and if Democrats can nominate and confirm his successor, there is a chance that the Constitution can continue to rely on the better angels of Justice Kennedy’s nature. But even so, I fear that the first Monday in October has lost an essential element of its grandeur for years to come. When Justice Souter wept after the Bush v. Gore decision, he was not only mourning the naked politicization of justice; he was anticipating the tragic abrogation of the Constitution that we have experienced in the seven years since. No reaction to that silent coup is more appallingly prescient than what Justice Thomas now tells us in his memoir was his reaction when his wife came to him in his bath to say that the Senate had confirmed him 52 to 48: “Whoop-dee-damn-doo.”

Clarence Thomas: Nobody Knows the Trouble He’s Seen
Trey Ellis, HuffPo
October 1, 2007

You have to feel sorry for the judge. Like George Bush he has failed upwards until the poor guy is now hopelessly out of his league. Unlike our president, however, he doesn’t have to pretend to understand the complexities of his job for just eight years and then retire to the back nine. Poor Clarence is stuck there for life. He seems caught in some sort of chilling Twilight Zone episode, cursed for what he wished for. His new memoir, My Grandfather’s Son,”is yet another sad chapter in his lifetime of self-hate.

Am I being too hard or condescending on what should be one of the wisest people in the nation? How else do you explain his terror of asking a single question from the bench? His excuse is that the other justices “talk too much.”

It’s called doing their job.

They arrive with questions that need to be answered, instead of dogma that needs to be adhered to. Justice Thomas is clearly that terrified kid in every class that knows that if he opens his mouth everyone will realize that he didn’t understand today’s lesson. Instead of being a beacon of pride for young black kids that, like him, might have been raised in poverty, he is an embarrassment.

His supporters point to his writings, but back in his chambers he is backed up by clerks who are some of our very smartest legal minds. Kato Kaelin could sign off on their briefs and sound like he knew what he was talking about.

George Bush the First’s appointment of a black man who was patently unqualified to the highest bench is exactly what affirmative action is not supposed to be about. The point is to open up gatekeepers like elite law schools and medical schools. Once the students graduate, however, they, and every other job applicant has to rise to a certain standard. My sister is a heart surgeon. Nobody is going to let her cut somebody open just to fill a quota. She has to be excellent at what she does. The bar for a lifetime appointment to our highest bench should have been just as high.

My mom went to Yale law school a few years after Thomas, after having graduated Magna Cum Laude from Howard. She was a thirty-five-year-old black mother of two teenaged kids. She knew she was brilliant, the best of the best, and thrilled at debating the other students. She never once said, “Oh, I’m only here because they needed a brown body. I really belong at the DeVry College of Law.”

And that’s how she raised me. Old school. Yes, racism still exists, she would tell me. So a B might do for the white boys, but you have to be that much better. How pathetic is it that Clarence Thomas writes that he graduated from Yale Law School with his head hanging low, convinced that the world knew that his diploma came with an asterisk of inferiority? When my mom’s friends graduated they burst out of law school ready to kick ass and take names.

The most odious part of Thomas’s memoir is his continued insistence that his contentious confirmation hearings elevate him to the canon of tragic black heroes like Native Son’s Bigger Thomas and To Kill a Mockingbird’s Tom Robinson. As Jane Meyer and Jill Abramson clearly demonstrate in their book, Strange Justice, Anita Hill was only one of several and Thomas, now one of the twelve highest judges in our nation, lied repeatedly during his confirmation hearings. The bitterness that seems to be eating away at him and spews out of this book might stem from the fact that he was the head of the US Equal Employment Opportunity Commission while he was sexually harassing Anita Hill and he is now sworn to uphold the Constitution of the United States of America because he lied his ass off in the United States Senate.

The Low-Tech Lynching of Clarence Thomas
Jerome Doolittle, Smirking Chimp
Sep 30 2007

As Justice Clarence Thomas flogs his million-dollar memoir, sound bites from his 1991 nomination hearings have been surfacing in the news — fragrant bubbles from the swamps of George Herbert Walker Bush’s administration.

The saddest of these golden oldies was the nominee’s anguished cry that the hearings were “a high-tech lynching for uppity blacks.” Is it even remotely possible that Justice Thomas actually imagines himself to be an uppity black? Can he be unaware that he was the least uppity black that Poppy Bush had been able to find in all the land?

Of course it’s possible, and of course Thomas is unaware of it. All of us lie to ourselves, and most of us lie to others. But only a few of us get the chance to lie to the Senate Judiciary Committee under oath. Clarence Thomas is one of them. The Pubic Hair Test proves it.

Fans of political theater will recall that Professor Anita Hill had charged her former boss at the Department of Education with a pattern of sexual harassment which included showing her a Coke can with a pubic hair stuck to it.

But Judge Thomas swore, no doubt truthfully insofar as the truth is vouchsafed unto him, that he had never in his life done such an ungentlemanly thing.

How could we, the millions of spectators at this morality play, have known what to think? Was it the stern federal judge who was telling the truth, or was it the demure law professor?

Only the Pubic Hair Test could settle the question:

Could Professor Hill could have made up a story so peculiar? In other words, was there anything in the accuser’s much-investigated background to suggest that she was a pathological liar? Did she suffer from hallucinations? Was she “creative?” Perhaps even an aspiring novelist?

And if she were such a fabulist, as the Republicans pretended to think, would the Coke can invention do more damage to her enemy than any other lie she might have dreamed up?

No to the first question. Professor Hill seemed depressingly literal and humorless. It was hard to imagine her engaged in a flight of fancy. (The only suggestion to the contrary came from a young black man who seemed principally interested in reciting his resume on national TV.)

And no to the second question, too. The tale of the pubic hair and the Coke can was so meaningless and bizarre that it could not have been an invention. If Professor Hill wanted to destroy the nominee with lies, she was certainly smart enough to have stuck to such old standbys as indecent exposure, groping, and dirty pictures.

The Pubic Hair Test therefore indicated with zero probability of error that this particular woman could not and would not have invented this particular senseless, incomprehensible story.

God knows whose pubic hair that was, or how it got on that Coke can, or what message the future Supreme Court justice thought it conveyed, or what made him imagine that his weird brandishing of it might be seductive — but the incident plainly happened pretty much the way Professor Hill said it did.

And Uncle Thomas had been lynched long, long before the Senate Judiciary Committee ever heard of him. He had slung the rope over a branch at an early age, poor man, and then hoisted himself all the way up to the Supreme Court.

The Red Mass vs. the U.S. Constitution
Mary Shaw, Smirking Chimp
Oct 1 2007

Yesterday, the annual “Red Mass” was held in various Catholic churches and cathedrals across the country. This annual mass is held before the Supreme Court’s fall session opens, and is intended to invoke the Holy Spirit’s guidance in the administration of justice in the coming year. This is where Catholics come together to pray for holy rulings by the judiciary. I kid you not.

The Red Mass held in D.C. typically has a number of Supreme Court justices in attendance, by invitation from the Cardinal.

And often the officiating priest uses this opportunity to appeal for Catholic Church interests, such as anti-abortion rulings.

So how is this not a blatant violation of the Constitutionally-mandated separation of Church and State?

Aren’t the Supreme Court Justices paid to base their rulings on the U.S. Constitution rather than the will of the Pope?

And how is this political mass not an insult to non-Christian justices, such as Ruth Bader Ginsburg (who is Jewish)? And to non-Christian Americans in general?

Imagine the outrage if the Supreme Court justices were invited to attend a similar event annually at a mosque rather than a church — and did so.

“So keep fightin’ for freedom and justice, beloveds, but don’t you forget to have fun doin’ it. Lord, let your laughter ring forth. Be outrageous, ridicule the fraidy-cats, rejoice in all the oddities that freedom can produce. And when you get through kickin’ ass and celebratin’ the sheer joy of a good fight, be sure to tell those who come after how much fun it was.”
~ Molly Ivins, 1944 - 2007

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