Tag Archives: Supreme Court

And now, Justice Kavanaugh

KavSneerCropsusan_collins_official_photo-e1538799982930.jpg

 

Senator Susan Collins (R-ME) put the icing on the cake. The confirmation was baked in long ago: the path to a fifth conservative seat on the Supreme Court was in the works for at least 30 years. (Remember Karl Rove’s dream of a permanent Republican majority?)

Before Dr. Christine Basley Ford described the sexual assault she had suffered in high school at a specially convened hearing of the Senate Judicial Committee, the Republican Senate Majority Leader Mitch McConnell (R-KY) vowed that the Senate would “plow” through to a certain confirmation. But when Ford described her ordeal, she moved and impressed not only the senators, but the president, with her authenticity. Judge Brett Kavanaugh’s confirmation no longer looked like a sure thing.

Then Kavanaugh testified. Red-faced, he wept and he raged. Furious, he accused the Democrats of plotting a “calculated and orchestrated political hit,” fueled by “pent-up anger about President Trump and the 2016 election.” But “what goes around comes around,” he said, apparently foreseeing vengeful retribution against the Democrats.

Following the hearing, people were appalled at Kavanaugh’s injudicious lack of control, his partisanship, fury and unseemly demeanor. The American Bar Association and the Yale Law School withdrew their endorsements pending a further investigation by the FBI. Close to 1,000 professors of law wrote to the Senate that Kavanaugh lacks the judicial temperament required for a seat on the Supreme Court.

The Republicans, all men, identified with Kavanaugh. They said they believed Ford had been sexually assaulted, yet contrived a way to exonerate Kavanaugh and justify voting for him. They began to poke holes in Ford’s testimony, pointing to her inability to remember details such as the address of the house, who took her home and the like. The people Ford named as being at the party couldn’t recall the party, much less the attack. All the evidence the senators chose to examine was gleaned from the severely limited FBI investigation. It was not enough to identify Kavanaugh as Ford’s aggressor. There was only Ford’s word. It didn’t occur to the men that a woman who had been sexually assaulted would have a powerful and excruciatingly present memory of the event, if not the superfluous details, while others present would have no reason to remember what was for them one unremarkable party among many. Once again, the woman was silenced, her searing testimony almost beside the point.

Within days, the debate shifted. Kavanaugh’s lack of judicial temperament, his lying under oath and his fierce partisanship replaced the sexual assault as the principal reasons to deny him a lifelong seat on the Supreme Court.

In the end, however, Kavanaugh’s unsuitability was tamped down by the overwhelming desire to hold on to power. Republicans have an extremely thin majority in the Senate. In the event of a Democratic victory in the imminent midterm elections, they would lose not only one or both houses of Congress, but the ability to establish a conservative majority in the Court that could endure for decades to come.

So Ford exposed her private torment to the world, and for what? For nothing, as she herself had feared?

Well, no, not entirely. Women heard her and their own buried traumas rose to torment them. All across the country women clamored to bear witness. They marched and spoke and wrote and pounded on the doors of their representatives. 

Many men listened to them. Amazed by their number, they confessed they had no idea that sexual assault was such a widespread problem. The #metoo phenomenon, just a year old, came roaring back.

Now that women’s and Democrats’ efforts have failed to prevent the elevation to a lifetime appointment of a judge whose convictions threaten the progress already made, what comes next?

Keep striving. We have to believe that though we have undoubtedly suffered a setback, we have the strength to reclaim lost ground and continue to advance into a more equitable future for all Americans.

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Notorious RBG speaks her mind

RBG

Justice Ruth Bader Ginsburg

Supreme Court justices are human beings and as such they have biases. The difference between them and everybody else is that they don’t express their opinions publicly.

Except when they do.

Justice Samuel Alito mouthed “not true” on national television in defiance of President Obama at the 2010 State of the Union. The President had just criticized the 10-day-old Citizens United decision. In the last week, Justice Ruth Bader Ginsburg denounced presumptive Republican presidential nominee Donald Trump, calling him “a faker” who “really has an ego.”

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said, articulating what many, including Republicans, believe. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

Expressing these sentiments publicly landed her in hot water. Trump called for her resignation and Republicans deplored her action. No surprise. But so did just about everyone else, including liberals and progressives. What was shocking was where she said it, not what she said. No one doubts that she is a liberal Democrat. No one could expect her to back Trump and his unconstitutional proposals that jeopardize the freedom of the press and the rights of free speech and religion, due process and equal protection.

Perhaps RBG believes the prospect of a Trump presidency is so dangerous that she was willing to scrap protocol and jeopardize her legacy to cry out from her bully pulpit.

To preserve the appearance of impartiality and foster faith in Supreme Court and its ruling, the justices don’t take sides in public. The fear now is that RBG might be forced to recuse herself in any case involving Donald Trump. But that is unlikely. In the history of SCOTUS no justice has been compelled to recuse him or herself.

No, Justice Ginsburg dreads Trump’s disregard for the law and willingness to trash the Constitution. I believe that she may well have gone out on a limb in a valiant, though reckless, effort to preserve American democracy.

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White males only?

ChrisRockSunday night Oscars host Chris Rock brought Black History Month to a rousing close. He engaged us with humor that unmasked the ugly truth of a racism that still pervades a self-deluded and self-defined liberal society. Talented people of color can’t possibly win Hollywood’s highest honors if white people are given the major roles. And the same holds true for women of all hues. They rarely have the opportunity to demonstrate their talents when they are passed over by the white men who dominate all aspects of film-making, to mention only one of the many creative and other fields of human endeavor.

SistersInLawToday the focus shifts from color to gender, as Women’s History Month highlights the achievements of women all over the globe. In honor of the occasion, Women’s Voices For Change is publishing my review of Linda Hirshman’s “Sisters-in-Law: How Sandra Day O’Connor and Ruth Bader Ginsburg went to the Supreme Court and Changed the World.” The book’s title is clever, but somewhat misleading, though it does chronicle the vital legal arm of the women’s movement. Had Justices Ginsberg and O’Connor not been appointed to the Supreme Court, American women today would have a very different “herstory.”

How many women born 50 years ago or less understand how inequality made women’s lives and aspirations radically different from those of men? How many know that until the 1970s, when old laws were struck down and new laws began to change the culture, women were rarely if ever seen in corporate boardrooms, as members of houses of Congress and state legislatures, or as judges in the courts? Women were even prohibited from serving on juries (and so they never could be judged by juries of their peers), and often were not hired or promoted in order to protect jobs for men.

Continue reading …

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A remarkable week in June

What a week!

It began with the mourners for the Charleston massacre victims. Their appeal to take down the Confederate flag from South Carolina’s state capitol swelled to a national demand to remove all symbols that glorify the Confederacy and tacitly condone slavery.

The Supreme Court handed down two momentous, life-altering decisions. The first, King v. Burwell, upheld the Affordable Care Act, saving it from a precipitous collapse that would have snatched healthcare away from the millions who were previously uninsured. It also ensured a significant legacy for President Obama. The following day, on Friday, June 26, the Court affirmed in Obergefell v.Hodges  that LGBTQ citizens will no longer be treated as second-class citizens, denied the right to marry anyone of their choosing. The Constitution’s guarantee of equal rights, the Court ruled, applies to all Americans, regardless of sexual orientation.

The week was capped by the Charleston tragedy, as President Obama gave the eulogy for Rev. Clementa Pinckney. After he spoke, Obama grew silent, then gave a plaintive rendition of “Amazing Grace” that will not soon be forgotten.

From mourning to celebration: June comes full circle to a fitting close. Gay Pride parades and festivals mark the Stonewall Riots that propelled gay activism and culminated in a victory unforeseen in 1969.

Democracy is not dead in the U.S., as many fear. This week it made a stunning recovery.

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SCOTUS rules

MarriageForAll

Gay marriage cake by Giovanni Dall’Orto

The liberal wing of the Supreme Court, notably including swing Justice Anthony Kennedy, today made same-sex marriage legal in every state of the Union. Millions, gay and straight, rejoiced.

Writing the majority opinion, Justice Kennedy acknowledged that the Constitution says nothing about gay people, let alone gay marriage, because when it was written there was no visible gay population. Same-sex marriage was not an issue. Justice Kennedy explains:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

To which Chief Justice John Roberts replies in his dissent:

… as a judge, I find the majority’s position indefensible as a matter of constitutional law….

He reads the opinion as a strict constructionist.

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

I find Roberts’s adherence to the letter of the law in the case of same-sex marriage very interesting, in view of his majority opinion in yesterday’s landmark decision, King v. Burwell. The case against Obamacare hinged on six words out of more than 200,000. The dissenters (Justices Scalia, Alito, Thomas) clung to those words, but Roberts ruled that they must be read in context. Clearly, one short phrase was not meant to undo over 900 pages of legislation.

The Preamble to the Constitution declares that Americans have “certain unalienable Rights … Life, Liberty and the pursuit of Happiness.” Today the Court restored those rights to a not insignificant number of the population. (Estimates of the LGBT population vary widely, from 10 to four percent, at least 9 million.)

The backbone of today’s decision, Obergefell v. Hodges, is the 14th Amendment of the Constitution. It prohibits any state from “abridg[ing] the privileges or immunities of citizens.” It also mandates the “equal protection of the laws” to every person.

Judging by their refusal acknowledge the rights and humanity of members of the LGBT communities, some contemporary jurists, conservatives, and self-proclaimed religious individuals apparently do not consider gays to be persons, let alone citizens. They insist that gays have neither the right to marry whom they choose nor even to the “pursuit of happiness,” since sharing one’s life with the beloved is a fundamental happiness.

Justice Roberts accuses the majority of writing the law, a function of the legislature, rather than interpreting it, the duty the court. I agree that it would have been ideal for each individual state to legalize same-sex marriage, but that wasn’t going to happen, and people are suffering now. “For them and their children the childhood years will pass all too soon,” writes Kennedy. A law that radically alters custom should rise from the people. The same was true in Roe v. Wade, the decision that legalized abortion nationwide.  The states are having their say now, as many of them pass ever-more-severe restrictions that in some cases make abortion all but impossible.

Justice Antonin Scalia, the fiery and outspoken conservative, does not hold back:

This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

But neither can a system be called a democracy where Citizens United holds sway, when elective office costs millions and high office billions. It is a plutocracy, where money rules, and consequently, an oligarchy, where an exalted few multibillionaires call the shots. They are enabled by five unelected lawyers, including Antonin Scalia.

Let the wedding bells ring!

 

 

 

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Obamacare survives SCOTUS

SCOTUScare

Reporters running with the news that Obamacare survived trial by SCOTUS

At last! the decision that all Americans — for different reasons — have been waiting for. The Supreme Court has kept the Affordable Care Act viable, at least until the next assault. Justices Kennedy and Roberts joined the progressives on the Court in the 6-3 decision. The ruling affirmed that subsidies for eligible poor and middle-class individuals are legal in federal exchanges. It is estimated that as many as 9.6 million people would have lost their coverage if the Court had upheld the challenge to the ACA, although the Court could not take that effect into account in its analysis of the wording of the law. Mother Jones has a clear and succinct summary of how the ACA works, the case against it and the ruling that saves it.

The argument against the healthcare law was based on six words (“an Exchange established by the State”) that would rule out federal subsidies in states (34 as of now) that didn’t establish their own exchanges (insurance marketplaces that enable consumers to price and compare plans).

Does it make sense that those six words out of 235,000 in 906 pages of legal text were deliberately written with the purpose of invalidating the entire act? Republicans think so. Sen. Rand Paul, presidential hopeful from Kentucky, said, “This decision turns both the rule of law and common sense on its head.”

Justice Antonin Scalia, author of the dissent, characterized the majority opinion as “”interpretive jiggery-pokery,” a “defense of the indefensible,” “pure applesauce,” and “interpretive somersaults.”

Chief Justice Roberts, enraging conservatives by rescuing the ACA for a second time, did not agree with his conservative colleagues. He crystallized the logical underpinning of the majority opinion:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.

The Republican reaction? Knowing that while Obama is president he will never sign a law that undermines or repeals one of his signature achievements; and that Democrats, though in the minority, would not help them to override Obama’s hypothetical veto, Republicans have a simple strategy for overturning the SCOTUS decision: elect a Republican president and maintain the congressional Republican majority to repeal Obamacare.

Sen. John Barrasso (R-WY) of Wyoming, the Republican tasked to head the Senate’s response to the ruling: “We will continue to try to pull parts of the law down, but we need a willing partner in the White House to accomplish these things.”

Jeb Bush: “disappointed … but not the end of the fight against Obamacare…”

Marco Rubio: “ObamaCare is still a bad law that is having a negative impact on our country and on millions of Americans. I remain committed to repealing this bad law and replacing it…”

Republican presidential candidates have a ready-made issue: Obamacare is bad; elect me and I’ll repeal it or replace it. They no longer have to contend with the Democratic argument that they will deny healthcare to millions of people.

Today’s favorable decision on Obamacare was critical, but it’s obvious that the ACA is not necessarily here to stay. It is on firm ground until the next president takes the oath of office in a year and a half. If Republicans were to give up their idée fixe of dismantling the ACA or nullifying it completely and instead collaborated with Democrats to improve it … Ah, well. In another life.

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SCOTUS at a crossroads (again)

Contemplation of Justice, North side of Supreme Court

Contemplation of Justice, North side of Supreme Court

CC-BY-SA-3.0/Matt H. Wade

Go back or go forward? That is the question for the Supreme Court in  Obergefell v. Hodges, a case that could determine whether same-sex marriage is a constitutional right, whether the Constitution requires every state either to license same-sex marriages or to recognize those marriages if they’re performed outside the state.

I believe that SCOTUS will (actually, must) rule for the plaintiffs and establish the right for all couples to marry anywhere in the U.S. When a group is defined by an innate attribute and singled out for either special privilege or punitive measures, that is discrimination, and such discrimination is prohibited by the Fourteenth Amendment of the Constitution: that no state may “deny to any person within its jurisdiction the equal protection of the laws.” As Emily Bazelon says, “Marriage equality is a civil rights slam dunk.”

Though the justices are not required to consider the practical results of their decisions, I should think that even the conservative justices (except perhaps Thomas) would shrink from disrupting millions of established families. Then again, conservatives won’t allow abortion, but when a child is born to an indigent mother, they wash their hands of all responsibility for both mother and child. So much for their concern for children.

Justice Kennedy’s assertion that the “traditional” definition of marriage has been around for “millennia,” as well as Chief Justice Roberts’s saying that in every definition he looked up marriage had been defined as the legal union of a man and a woman until a dozen years ago, is not quite true. They call themselves scholars? The justices didn’t restrict their definition of marriage by characterizing it as Christian or Judaeo-Christian or Western or modern. They couldn’t do that, of course, because of the establishment clause in the First Amendment that prohibits the government from establishing any religion. But even within the U.S., let alone internationally, there is hardly uniformity in the nature and purpose of marriage. (Think of Utah and the Mormons, who until 1890 practiced polygamy. Muslims may also have up to four wives.)

As far as I know (I haven’t read transcripts), even though Antiquity was mentioned in the oral arguments on April 28, there was no acknowledgement that marriage then or in the Middle Ages or at any other time or culture, was any different from the Court’s 20th- and 21st-century models. Not that they should have made such concessions, but neither should they have made vague references to something they clearly know little about. There was no mention of the fact that for most of Western history, marriage was for dynastic and economic reasons. Marriages were arranged, usually by the parents, to preserve and increase the family’s wealth and power and to ensure the production of an heir to continue the family line. The care and protection of children was not a big concern.

Opponents of gay marriage argue that heterosexual marriage is a societal good, because it produces children that perpetuate society. And if gays marry, opposite-sex marriages won’t produce children? If same-sex marriage is legal, opposite-sex marriages will die out?

As is usually the case, the justices must consider other, secondary issues in their decisions. Beyond the questions of philosophy and tradition, the justices will have to give precedence to government by judicial fiat or by the will of the people. The ballot box should be more powerful than the decision of nine intellectuals who are far from the fray. And yet — if the Court had not imposed its unpopular civil rights decisions upon a recalcitrant South, does anyone really think that they would have integrated their schools and welcomed everyone, regardless of the color of their skin, to their restaurants and drinking fountains?

When Roe v Wade came before the Court, Justice Ruth Bader-Ginsberg, a steadfast champion of women’s rights, feared that imposing a decision that went against the convictions of a majority of people rather than letting them change their minds gradually might rouse opposition to the new status quo, i.e., legal abortion. Now we know that she was right — far from being quietly and universally accepted, abortion has become the most divisive issue in America.

Perhaps the pundits who say the outcome of the case is in doubt, that it could be a nail-biter, are hedging their bets. I know I’m prejudiced, but I just don’t see it. History and logic are not on the side of the retrogrades.

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