Supreme Court Archives - Page 5 of 12

If I tend to believe her over him, is that partisan?

judge shall act Sure, Brett Kavanaugh would not be the Supreme Court justice I would prefer on policy. But I sincerely believe my current antipathy towards him stems from two issues:

1. I tend to believe Christine Blasey Ford’s sexual assault allegation regarding him. We still live in a legal system that fails to identify, prevent and redress the widespread sexual assault and mistreatment of women. “We must account for that failure in parsing these events and allegations. For decades, these systemic inequities have barred people from reporting assault and receiving justice.”

Blasey Ford’s well-documented records were generated long before Kavanaugh’s nomination to the Supreme Court. Her compelling testimony of sexual assault reopened old wounds for other victims Her description of how memory works matches what I’ve experienced.

Prior to testifying, she received death threats. She wouldn’t put herself and her children in peril over a fabricated story about a sexual assault which would prevent only this particular conservative judge from being put on the Supreme Court.

The fact that some Democrats are surely “being political” about this does not negate her truth.

2. Brett Kavanaugh is a recognizable type. Greg Hatcher wrote Watching the Douchebro Death Spiral: I Was That Guy. Fillyjonk had an epiphany, as quoted by Dustbury: “Party culture”? Totally a thing.

Like his sponsor, Brett Kavanaugh seems to lie about almost everything, including stupid stuff, traceable stuff. Kavanaugh lied about getting into Yale only on merit. His grandfather was an alum..

Politifact fact-checked his Senate confirmation hearings and found him veracity lacking.

His 1982 calendar does NOT exonerate him, but rather, points to the fact that Brett is Mark Judge’s boozy friend Bart, a belligerent and aggressive drunk.

That woman on CNN who said, “Tell me what boy hasn’t done this in high school?” rather broke my heart. BTW, not me, for one. The passage of time doesn’t erase youthful mistakes in the criminal justice system, for most people of a different race or class.

I’m happy the Senate forced the extension of the FBI probe of Kavanaugh. If we’ve made any progress since the Anita Hill-Clarence Thomas debacle, it as that the character assassination foisted upon Hill does not seem to be sticking as much to Blasey Ford. Meager progress in 27 years, but it’s something.
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Brett Kavanaugh: Last Week Tonight with John Oliver

Dr. Christine Blasey Ford Testifies Against Brett Kavanaugh | The Daily Show with Trevor Noah – Nah, I don’t believe his response to the Blood Alcohol Chart question either.

NY Times opinion piece: An Injudicious Man, Unfit for the Supreme Court. “This was a job interview, not a criminal trial. Kavanaugh, in his fury and pathos, failed the test.”

Earl Warren versus “people are corporations”

A leader of the Republican Party for more than a decade, Roscoe Conkling had even been nominated to the Supreme Court twice. He begged off both times, the second time after the Senate had confirmed him.

Earl Warren Sometime in 1973 or early 1974, I was in a class at the SUNY College of New Paltz. It was my only course, 15 credits, in political science, and, oddly, I don’t remember much about it except save for the fact that it was conducted by the late Ron Steinberg.

Except for one thing: we all got to meet retired US Supreme Court Chief Justice Earl Warren in his office in Washington, DC. And not a meet-and-greet but him talking with us for at least a half hour, and then the dozen or so of us able to ask him questions.

Earl Warren is the guy whose court made many monumental decisions between 1953 and 1969 when he retired.
They included:
*attempting to end segregation policies in public schools (Brown v. Board of Education)
*ending anti-miscegenation laws (Loving v. Virginia)
*ruling that the Constitution protects a general right to privacy (Griswold v. Connecticut)
*protecting the rights of the accused (Miranda v. Arizona)
*providing lawyers from https://www.denvercocriminaldefenselawyer.com/ to the indigent (Gideon v. Wainwright)
*codifying one person, one vote redistricting (Baker v. Carr)
*freedom of the press (New York Times Co. v. Sullivan)

The question I had must have been stated ineloquently because he didn’t know what I was getting at. I was probably nervous. Finally, I asked him about the precedent of the Court considering corporation as people back in the late 19th century. He said that the Court got it wrong back then.

Earl Warren, who died in July 1974, would have appreciated this article, “‘Corporations Are People’ Is Built on an Incredible 19th-Century Lie: How a farcical series of events in the 1880s produced an enduring and controversial legal precedent.” It involved the Southern Pacific Railroad Company, “owned by the robber baron Leland Stanford,” and the corporation’s lawyer, Roscoe Conkling.

Former President Harry S. Truman applauded the newly-retired Warren in this January 1970 California Law Review article. To the point of my question, Truman wrote:

“I would suggest that it is at least symptomatic of a conservative in today’s society that [Warren] is deeply concerned with the faceless, seemingly randomly and capriciously directed activities of the gigantic institutions which influence the direction of modem life. Under this definition, a conservative is one who worries that the balance of power in this nation has shifted in favor of oversized corporations, government agencies, labor unions, universities, foundations, and institutionalized groups which draw together shifting combinations of some or all of these.”

Happy Constitution Day.

SCOTUS justice Clarence Thomas turns 70

Among the many dreadful aspects of Clarence Thomas becoming a member of the US Supreme Court is that he succeeded Thurgood Marshall. Marshall founded and served as executive director of the NAACP Legal Defense and Educational Fund, arguing several cases before SCOTUS, including the landmark “Brown v. Board of Education, which held that racial segregation in public education is a violation of the Equal Protection Clause.”

Thomas, on the other hand, served as chair of the US Equal Employment Opportunity Commission and “halted the usual EEOC approach of filing class-action discrimination lawsuits, instead pursuing acts of individual discrimination,” which are much more difficult to prove. He had little judicial background when George H. W. Bush nominated him to the high court.

The confirmation hearings were reopened after “an FBI interview with lawyer Anita Hill was leaked… Hill, a black attorney, had worked for Thomas… She testified that Thomas had subjected her to comments of a sexual nature, which she felt constituted sexual harassment or at least ‘behavior that is unbefitting an individual who will be a member of the Court.'”

Thomas denied Hill’s allegations, and famously said: “From my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves… and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”

In the #MeToo era, The Boston Globe asked in 2018, Why is Clarence Thomas still on the Supreme Court? New York magazine suggests impeachment.

And the grounds wouldn’t just be over sexual harassment. Back in 2011, we learn that Thomas doesn’t just do unethical favors for wealthy right-wing donors — they also do expensive favors for him. Both he and his late colleague Antonin Scalia probably should have recused themselves in the toxic Citizens United case.

And this from 2013: “Common Cause uncovered that Virginia Thomas earned over $680,000 from the conservative think tank, Heritage Foundation, from 2003 to 2007. Justice Thomas failed to include it on his financial disclosure forms… Once he was caught, Thomas amended 13 years’ worth of disclosure reports to include details of his wife’s income.”

A couple yeas ago, an article from Oyez painted a picture of the justice: “Clarence Thomas is known for his quiet, stoic demeanor during oral arguments and his conservative viewpoint that challenges, if not surpasses, even Scalia’s originalism.

“While many justices use questions to show their opinion on an issue or communicate with the other justices as to their feelings on a case, Thomas remains silent… He has shown his opinions to lean farther right than any other justice on the bench today.”

Birthday is June 23

Movie review: RBG [Ruth Bader Ginsburg]

An unlikely recent obsession in our culture: an octogenarian Supreme Court justice

Watching RBG, a documentary about the Supreme Court Justice Ruth Bader Ginsberg, the parallels among her being an aspiring law student at Harvard and Columbia, the cases she took on as attorney, and her role on SCOTUS are quite striking.

She tended to be dismissed out of hand at Harvard, with her and the handful of other students being asked directly why they were taking spots that could have gone to a man. Decades later, Virginia Military Institute was essentially making the same case, but the argument was met with withering criticism by RBG.

This is a wonderful film, helped by some amazing archival video showing the development of the great love story between Ruth and Marty Ginsberg, who were married from 1954 until his death in 2010. He was gregarious, while he was quiet, goofy when she was serious. Ruth is a notoriously awful cook, while Marty had kitchen talent.

Moreover, he recognized her great legal skills. Arthur Miller, their great friend, said that Marty was the greatest tax attorney in New York City, yet he left his job to follow his wife when she was appointed to the federal bench by Jimmy Carter.

During her confirmation hearing for the Supreme Court in 1993, she felt that many of the men on the Senate Judiciary Committee didn’t “get” it, didn’t understand the effect of being dismissed out of hand. Yet she was confirmed 96-3 after Bill Clinton recommended her, recognizing her stellar mind.

As she became more the liberal voice of dissent, social media dubbed her The Notorious RBG with a Tumblr page, pictures on Pinterest, T-shirts and a book describing the an unlikely recent obsession in our culture: an octogenarian Supreme Court justice.

Ruth has learned to embrace the phenomenon. She laughs at Kate McKinnon’s portrayal of her on Saturday Night Live while acknowledging that it is nothing like her.

Meanwhile, she is passing down wisdom to her grandchildren, including one granddaughter who was in a class of lawyers that’s about 50% female.

The film, which my wife and I saw at the Spectrum Theatre in Albany, is touching, and educational, and, based on my laughter at the latter sections, occasionally quite funny.

Heller ruling on 2nd Amendment: legerdemain

“To the leaders, skeptics and cynics who told us to sit down, stay silent and wait your turn, welcome to the revolution.”

I finished reading The Quartet: Orchestrating the Second American Revolution, 1783-1789 by Joseph J. Ellis (2015). The title refers to George Washington, James Madison, Alexander Hamilton, and John Jay. More about the book in the future.

In reading the footnotes – what a nerd! -one jumped out at me. “…for judicial devotees of the ‘original intent’ doctrine” – what DID the Founders mean? – “Madison’s motives” in crafting what became the Second Amendment to the Constitution “are clear beyond any doubt.”

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

“To wit, the right to bear arms derived from the needs to make state militias the core pillar of national defense” rather than a professional, federal army, which skeptics of federalism feared as threats to small-r republican values. .

“To avoid reaching that conclusion, the [Supreme Court] majority opinion in Heller [v. District of Columbia, 2008], written by Justice Antonin Scalia, is an elegant example of legalistic legerdemain masquerading as erudition. Madison is rolling over in his grave.”

Those not familiar with the fancy noun, it means 1. sleight of hand 2. trickery; deception 3. any artful trick.

In other words, the suggestion that Scalia’s argument is originalist is pure hokum. The Supreme Court had made only a couple rulings over two centuries on that amendment and, it would seem, got it wrong the second time.

In making this ruling, SCOTUS has empowered folks, including some in the powerful National Rifle Association, to argue that ANY limitation on gun ownership is unconstitutional. If the First Amendment can be proscribed – no yelling “fire” in a crowded theater unless there are actually flames – surely the Second can be also.

My wife and I were watching NBC Nightly News on March 24, the day of March for Our Lives rallies all over the world. One of the early stories was Museums across the nation work to archive mementos of grief left after shootings. There is actually a protocol for collecting those items left after mass murders! “Jeff Schwartz of the Parkland [Florida] Historical Society is relying on advice from… curators across the country — from Columbine, Colorado, to Charleston, South Carolina — who have all faced such situations.” We both wept.

So I’m not all that concerned about the “crass ageism” of some of the survivors. The Parkland kids, as of March 24, had been in the media spotlight 39 days, still grieving. I cut them a LOT of slack. “To the leaders, skeptics and cynics who told us to sit down, stay silent and wait your turn, welcome to the revolution,” Marjory Stoneman Douglas student Cameron Kasky told the throngs in DC. “Either represent the people or get out. Stand for us or beware.”

I don’t know what the change in the gun culture will be, but I remain cautiously optimistic, because I have to be.

From The Doors:
The old get old
And the young get stronger
May take a week
And it may take longer
They got the guns
But we got the numbers
Gonna win, yeah
We’re takin’ over
Come on!