Tuesday Open Thread and Supreme Court B#tching

 

"Jesus Fever" - Kurt Vile

The conservatives on the Supreme Court have issued a couple of truly hideous decisions this week.  Once again, here is one of those instances where the differences between the parties are so profound that, in and of themselves, they constitute a compelling reason to always vote and to always pull the Democratic lever when so doing. 

Today, the five conservative justices issued a 5-4 ruling that taxpayers in Arizona lack standing to make an establishment clause challenge to an Arizona law providing tax credits benefiting religious schools.  In so doing, the Court virtually guts the ability of taxpayers to raise questions regarding the propriety of states using tax credits as a means of favoring religious institutions.  Scott LeMieux has a good piece on this most recent travesty.  He quotes at length Elena Kagan's passionate dissent, which is well worth your perusal. 

I just want to make a simple, non-legal point here.  The breakdown of the Court on this case was completely by party of appointment.  All five Republican appointees were in the majority and all four Democratic appointees were in dissent.  This is not, as I will discuss further below, an aberrant result in the area of contentious constitutional cases.  And it vividly illustrates again something that I wouldn't think needs to be pointed out over and over -- but seemingly does -- that the parties produce profoundly different kinds of Supreme Court justices and that these differences result in profoundly different rights being enjoyed -- or not -- by the American people.  (Of course, I hope you all remember that Kagan was excoriated by the holier than thou set on the left as "the most unqualified justice in Supreme Court history" among other gems.)

It also shows as well, the insidious process of the Roberts' Court destroying rights via procedural rules such as standing.   

And then, there's Connick v. Thompson, yet another travesty handed down by the same 5-4 split.  In this case, egregious acts of prosecutorial misconduct that resulted in a death sentence and the wrongful imprisonment of an innocent man for over 18 years -- 14 of them isolated on death row (I'm sure Jane Hamsher visited him frequently though) -- and his near execution led to a jury award of $14 million on behalf of the victim of this outrageous behavior.  The Supreme Court reversed, in the process granting virtually unlimited license to prosecutors to engage in unethical and dishonest behavior with nearly complete impunity.  Read Dahlia Lithwick's take on the case and the extraordinarily mean-spirited jurisprudence of Clarence Thomas and Antonin Scalia -- two sociopaths in black robes.   Read as well Justice Ginsburg's dissent -- an opinion about which she felt so strongly that she took the unusual step of reading it aloud.  

Once finished, you're welcome to tell me again why it is meaningless in the real world if Obama wins in 2012 or if the Democrats retain control of the Senate.  

Or share your thoughts on anything else.

Comments

[Corvus]

Once again, here is one of those instances where the differences between the parties are so profound that, in and of themselves, they constitute a compelling reason to always vote and to always pull the Democratic lever when so doing.

This has been my perspective for a while as well, Sir Charles. Sure, one of the parties is wishy-washy on abortion rights, occasionally outright hostile to unions, engages in military adventurism, and shits on civil liberties, but the Republicans are EVIL. I will happily, happily take a divided incoherent big tent party like the Democrats over the plutocratic autocratic theocratic sociopaths that run and control the Republican party.

That's basically why I have not commented that much recently (hi everybody!) or even been reading the news all that much. I know it's kind of ignorant, but it's not like anything I read is going to change my voting habits, you know?

[low-tech cyclist]

Vote for the scared rabbits - it's important!

[low-tech cyclist]

And I mean that quite sincerely. But it does illustrate the problem of getting enough lower-information voters whose interests lie with the Dems to go to the polls and pull the right lever.

That's our real problem. Sure, the FDLers and their fellow travelers don't help, but if the Dems cared to stand for the interests of working people more than occasionally, instead of being just a bit more reluctant to hurt them than the GOP is, we'd not miss the FDLers' absence.

[Crissa]

Not that I think the case had merit or not, but it bothers me on the standing...

...If taxpayers don't have standing to challenge tax law as constitutional or not, who does?

[MR Bill]

Crooked Timber has been good on Connick too. "J.K. Galbraith remarked that conservatism was engaged in a long search for a superior moral justification for selfishness. But that quest may sometimes become boring, or perhaps too difficult. Not to worry, because occasions to be straightforwardly vicious are more easily found, if you have the taste for it. Its spiteful tone aside, in substance Connick v. Thompson seems to be a Lord Denning Moment for the U.S. Supreme Court. The conservative majority preferred to affirm an obvious wrong rather than face the appalling vista of a brutal and corrupt justice system."

Bad storms last night, we lost power for a while. My roommates and the dogs came into my basement apartment, and we sat by candlelight.

A promo video for Blue Ridge Community theater
where the play I'm in ("Knock 'em Dead"opens Thursday is up for a People's Choice Telly Award on Youtube..

[Davis X. Machina]

500 words, and not a single mention of the public option.

Or Dawn Johnsen.

A fine figure of a progressive you make, Sir Charles.

[low-tech cyclist]

...If taxpayers don't have standing to challenge tax law as constitutional or not, who does?

From the perspective of Roberts & Co., ideally nobody, if they like the law in question.

Roberts is of course a total hack. And Kennedy seems to have been fully assimilated into the right-wing Borg.

[Sir Charles]

Corvus,

Yeah, but we love you around here brother, so we like you to contribute. Also, there are any number of points that we continue to have to grapple with -- most of which involve the questions frequently posed by l-t c --how do we make the frightened rabbit less frightened and more compelling and progressive.

These are not easy questions as they involve both short term political tactics accepting the world as one finds it, while at the same time there is a need to push towards a meaningful and appealing ideology. It seems to me that these are the questions that should preoccupy us in the lefty blogosphere.

Crissa,

In many respects, the finding of "no standing" is worse than a ruling against us on the merits. It basically says that as citizens this sort of thing is none of our damn business. And it raises the obvious question -- if the citizenry lacks standing than who has it. Well, obviously corporations who are persons under the law -- nay super persons, as they always seem to have standing to pursue their claims.

MR Bill,

Good luck. I'll check out the videos.

We had a pretty big storm here overnight and it is raining and very dark -- kind of ominous looking.

DXM,

I just snorted into my coffee.

Actually one of the more amazing things I've experienced here was kind of the opposite of what you are talking about. I was at a party talking to a DOJ political appointee -- one of Dawn Johnson's proteges who was supposed to work under her -- and I was struck by how little outrage he showed over her incredibly shabby treatment. When I mentioned the need to shift the Overton Window in the coming months he looked at me like I was mad as a hatter. So one can go too far the other way too.

l-t c,

Roberts is a dangerous hack -- one with a high IQ and a fair amount of charm -- and utterly dedicated to getting what he wants ideologically by any means necessary.

I would despise him even more but for the fact that he sits on the Court with two guys who would gladly send an innocent man to his death in order to avoid disturbing their political world views. It's a pretty stunning thing. There is cold, cold blood in those veins.

[Sir Charles]

Corvus,

Plus we have music.

I've got a couple of old school post possiblities that were made with you in mind.

[oddjob]

Jeffrey Toobin on SCOTUS and campaign financing

Hat tip, Talking Points Memo.

[oddjob]

White House Orders Agencies To Prep For Government Shutdown

(just in case....)

[oddjob]

"You know what? Let me tell you, the First Amendment means nothing without people like General Petraeus."
- Sen. Lindsey Graham (R-the closet), openly proclaiming (in so many words) his contempt for civilian rule of the military.

[oddjob]

GOP insiders get it, but that may well not matter:

...For Republicans, it seemed that they could only lose their majority if the party nominated someone for president who was toxic with independent voters like former Alaska Gov. Sarah Palin or Minnesota Rep. Michele Bachmann, neither of whom is likely to win.

However, talking with Republican pollsters, strategists and veteran campaign professionals recently, I now hear sounds of concern that haven’t been heard in almost two years.

Among the worries the party now has is that a government shutdown could get blamed on the GOP. Additionally, these party insiders believe that taking on entitlements, specifically Medicare, could jeopardize the party’s hold on the House, its strong chances of taking the Senate and the stronghold that the party has been established with older white voters—not coincidentally, Medicare recipients....

Hat tip, The Plum Line.

[Toast]

I hope you all remember that Kagan was excoriated by the holier than thou set on the left as "the most unqualified justice in Supreme Court history"

First of all, that title is Clarence Thomas' until he dies.

Second of all, seriously? Lefties said that? I'm really glad that I'm not as absorbed by the political blogosphere as I used to be. Shit like that makes me nuts.

[Sir Charles]

Toast,

That was an FDL special.

It's interesting, because William O. Douglas, a hero to many of us on the left, had similar credentials. Basically he had FDR's vote of confidence as Kagan had Obama's.

And Greenwald compared her unfavorably to John Paul Stevens, not bothering to note that Stevens had come on the Court as a relatively conservative justice who moved left as the Court moved right. I love Justice Stevens, but I remember writing some pretty unfavorable things about him back in 1982-83 when I was a law student -- things tht Greenwald, if he had a better historic sense, would have been in agreement with me by the way.

The bottom line is a lot of energy and outrage was expended in certain parts of the left in a pretty unproductive and largely preposterous way. I feel like that happens with Greenwald way too often -- I find myself in agreement with him on several things in a row and then he just goes totally over the top on things that are just not really worth losing a ton of sleep over. FDL just does a ton of Obama and Democrat bashing in a way that fosters apathy and indifference. Not exactly what we need right now.

[Joe S]

Sir C, I'd just like to point out that there is absolutely no evidence Elena Kagan will be anything like William O. Douglas-- other than the statements of a few Supreme Court litigators who have every incentive to flatter Justice Kagan and whose bread and butter depends on representing very wealthy clients in front of the Supreme Court.

I've read most of Kagan's important works, and her style is mostly descriptive. That makes for a useful law review article-- describing how things are as opposed to a unified ideological view of how things should be. But there isn't much there to guide us on how she's going to be as a justice.

There's simply no evidence anywhere that she's going to be a strong liberal voice on the Court. Is she going to be acceptable to the mainstream of the Democratic Party on many cases- well yes, she probably will be. And yes, she voted in favor of what was a liberal Republican status quo on civil rights in the Connick case.

But there's no reason to believe that she's going to try and shift the political economy of the country using the judiciary or use the judiciary to change the racial balance of power in this country (by looking at voting rights issues with a critical eye). That type of transformational justice that her critics wanted. That's what the Right was able to do in getting Roberts and Alito over the course of a generation through influence of the Republican Party. Nowadays, as a Republican, you can't get appointed as a judge without a Federalist Society worldview. And it's shown results-- For instance, the ACA has been found unconstitutional on a variety of totally specious grounds, and abortion rights are dying the death of a thousand cuts in the Red States.

I don't see any of the Obama appointees (except maybe Sotomayor) using the judiciary in a similar way. That type of agitation by rightwing activists since the 1970's got the Right what it wanted- a Supreme Court and lower courts that churn out opinions like Connick. The Right activists didn't take GWB's word for it that Harriet Miers would be great. They insisted on Roberts and Alito. They got what they lobbied for. It seems wrongheaded not to create such an incentive system on the Left for Democratic politicians-- otherwise we're going to be sitting in a liberal Republican status quo for the next half century.

[Sir Charles]

Joe,

I wasn't arguing that Kagan was going to be new Douglas -- merely that her credentials qua credentials were quite similar.

I am actually not an advocate for the judiciary being a force for transforming the political economy of the country. I think it is ill suited to the task and that judicial activism can be a very anti-democratic force. I am comfortable with a court that will build on existing civil rights and constitutional precedent to protect the right to equality of gay people and a court that will not be a rubber stamp for corporate power.

But although I admire what the Warren Court did, I am in agreement with Obama that we don't need a second Warren Court. I think litigation is a poor way to make policy.

We don't need a new Warren Court to protect abortion rights or to uphold the right of congress to make laws regarding health care or protect voting rights. What we need actually is a court that respects precedent and protects the rights of individuals where necessary, but defers to the elected branches in making policy. We need to stop the judical activism of the right -- historically where judical activism has come from -- not engage in a bout of our own.

We may differ on this subject -- after a life time of practice I just don't think judges are well suited to the kinds of policy making decisions that I view as being the heart of the liberal-left project going forward.

[oddjob]

Ryan's other folly:

The budget plan unveiled by Rep. Paul Ryan (R-WI) Tuesday does a neat trick: It claims that repealing the health care reform law will actually reduce the federal budget deficit -- despite extensive analyses by the Congressional Budget Office that show exactly the opposite....

[kathy a.]

cool -- ryan is going for throwing everyone under the bus regarding health care. what a guy!

[oddjob]

I've read before that Ryan is yet another Ayn Rand fan.

[kathy a.]

i don't favor book-burning, but as they say, there is a danger in only reading one book.

[kathy a.]

crap, another lost post. ayn rand hated social security and medicare, but she took advantage of both.

her so-called philosophy was essentially, "i've got mine, you are a slug and are screwed." i think we are all capable of translating when idiot proposals like ryan's come up.

[Joe S]

Sir C, if there's one thing the 90's and 2000's taught me is that the political economy and constitutional law (and the rule of law generally) are inextricably intertwined. When the First Amendment allows unlimited corporate cash in elections and simultaneously allows the destruction of entities like Acorn, you have to look at the effects of Constitutional law on the political economy. Moreover, when the First Amendment and separation of powers and federalism clauses are set up to allow for full-out assaults on the administrative regulatory state by corporate interests, you have a massive problem. Similarly, when you can disenfranchise millions of African-American voters for drug offenses related to crack, but not millions of Whites for drug offenses related to cocaine, that has effects on the political economy of the country.

I don't think judges should make policy either as traditionally defined-- but I do think that judges need to set up a rule of law which allows for an informed citizenry and cordons decisions based on expertise from powerful interests.

I don't see any evidence of Elena Kagan having the sense that constitutional law and statutory interpretation have profound effects on the concentrations of power in this country. Justices with an understanding of that (like say Justice Brennan or Justice Marshall) are what we need. Judges who don't see that, however smart or qualified they are, are not what we need.

[Sir Charles]

Joe,

I have no reason to doubt that Kagan would be opposed to the Citizens United decision, a grotesque example of right wing judicial activism.

I am afraid that the fate of ACORN had a lot more to do with the gutless nature of our elected politicians than it did with any deficiencies on the bench.

I think attempts to disenfranchise voters will continue to be a major battle with the right -- again, I don't think one has to be a particularly activist judge to see the harm in such attempts.

I just haven't seen any evidence that Kagan will not be as zealous an advocate for rights we hold dear as Stevens was.

[Joe S]

Very clever moving of the goalposts, Sir C. When I said we need a Justice Brennan or Justice Marshall, you say she's probably going to be as good as Justice Stevens-- who was a fairly middle of the road Republican and a relatively moderate jurist.

Which kind of brings me to the point-- we select solomonic technocratic Rockerfeller Republicans for the bench while the Republicans pick dedicated movement conservatives. It's like having a bench composed of James Inhoffes, Tom Coburns, and Jeff Sessions on one side and Ben Nelsons, Joe Liebermans, and Olympia Snowes on the other. Unsurprisingly, the combination leads to a constitutional jurisprudence and a body of statutory interpretation which drives the nation's political economy right.

As for Acorn, I don't know how the Breitbart- O'keefe groups avoid big defamation judgments.

[oddjob]

I don't see any evidence of Elena Kagan having the sense that constitutional law and statutory interpretation have profound effects on the concentrations of power in this country. Justices with an understanding of that (like say Justice Brennan or Justice Marshall) are what we need.

Not being a lawyer I haven't read Kagan at all, but I can't help finding this comment intriguing. During her nomination I read in several places that Kagan clerked with Marshall, and regarded the experience with great fondness.

[Joe S]

FYI, Tim Kaine is running for Senate in Virginia. This seems like the best way to hold the seat. Although, I would have like Pereillo to take the shot at a Senate seat and have won.

[Sir Charles]

Joe,

I'm sorry -- I wasn't trying to move the goal posts -- I was reaching back to Greenwald's decrying of the Kagan selection in comparison to Stevens.

I don't know that it's fair to suggest that Kagan or Sotomayor won't be as bold as Brennan and Marshall -- it remains to be seen and, of course, will occur in a very different historical context. My point was merely that I don't think that one has to be all that bold to act to protect the things that you raised in your comment. I think they all fall within the mainstream of what most Democratic judicial thinkers think.

I believe that both O'Keefe and Breitbart are up to their asses in litigation right now. Indeed, I think Shirley Sherrod may end up owning the various Breitbart media when all is said and done.

[big bad wolf]

if obama wins reelection and if one of the republican five go, then we will see what kagan or sotomayer might do as leaders of a leftish court (thus far i really like sotomayer). brennan was bold early, but was tactical and working to limit damage in his last decade.

[big bad wolf]

if, as i suspect he was, obama was hoping to get goodwin lui on the ninth circuit as a prelude to a supreme court appointment in a second term, that was a good plan. a thwarted one, but a good one.

[kathy a.]

the WI supreme court race is essentially neck-to-neck, but go ahead and refresh. as of now, only about 1/6 of precincts have reported.

[kathy a.]

50/50, about 1/3 reporting. i'm surprised it is this tight.

[oddjob]

My understanding is that the Kloppenburg-favoring areas haven't yet reported in any kind of quantity. If so, then the returns so far are actually probably encouraging.

[oddjob]

51% reporting & Prosser is up by slightly over 1,000 votes out of over 800,000 votes.

Madison has not yet reported.

[Sir Charles]

oddjob,

The suspense is killing me.

[oddjob]

2146 out of 3630 precincts reporting. Over 900,000 votes cast & Prosser's up by about 10,000. Milwaukee and Madison still have about half of their precincts to report. So far Kloppenburg is clobbering Prosser in Madison (70-30%), and has a comfortable lead in Milwaukee as well (60-40).

[oddjob]

Close to a million votes reported. Prosser's up by about 20,000 (2% lead).

[kathy a.]

this one's a nailbiter. she's ahead again. oops, she's behind by 100 votes.

[Sir Charles]

She's up by 500 votes. Unbelievable.

[Sir Charles]

And now 6,800 votes -- good guys. Could this be it?

[oddjob]

Now 4,000. If this keeps up it's safe to say there will be a recount.

[Sir Charles]

18,000.

They're making me lose my old man sleep.

[Mandos]

Here's the problem. It's the same fundamental disagreement over what matters. Few people, when pressed at length, will claim that there is *zero* difference. The claim is that the differences that DO exist are used as a form of political blackmail to prevent a change in overall direction: damned today or damned tomorrow. But not just that: damned very much today, or damned apocalyptically tomorrow.