July 2, 2008
Not Your Father’s Court
Andrew Cohen Reviews The Decisions And Looks At Trends From The Past Supreme Court Term
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The Supreme Court’s decisions this past term speak for themselves. As they have every term over the past few decades, the Justices once again sided in most cases with employers over employees, with big business over consumers, and with the government over individuals. The few exceptions -- the Guantanamo Bay detainee case, for example, or the child -- rape capital case or the Second Amendment case-merely prove the rule.
Trends? At essence, they all point in the same direction as they did last year at this time. Chief Justice John G. Roberts Jr.’s oft-cited dream of more jurisprudential harmony from the Justices (in the form of more unanimous decisions) remains just that; a fantasy that is no closer to coming true in 2008 than it was in 1998 or 1988. This is true even though Justice John Paul Stevens on a few occasions voted more “conservatively” than some observers thought he would. Big deal.
The death penalty? The Court still stubbornly retains it -- this past term by validating creepy lethal injection protocols in Kentucky -- even as a majority of its Justices found ways to ensure it does not exponentially expand. Election law? The Court in a case out of Indiana made it harder, not easier to vote in presidential elections. And, boy, Exxon Mobil and other big companies sure did well when the Court limited punitive damages arising out of the Valdez catastrophe in Alaska nearly a decade ago. That these cases were decided this way doesn’t really tell us anything we didn’t already know about this Court and its current cast of characters.
So if you really want insight into what this Court is all about what you really need to do is absorb the interview given by Justice Antonin Scalia to the (London) Daily Telegraph, a mainline British daily. Still shilling his new book, Justice Scalia went out of his way to blame Al Gore for the 2000 Florida recount fiasco. “I didn’t bring (the recount fight) into the courts,” Justice Scalia told the Telegraph. “Mr. Gore brought it into the courts. So if you don’t like the courts getting involved talk to Mr. Gore.”
And he didn’t stop with that head-scratcher, either. Justice Scalia then added, “And you know bear in mind that the issue wasn't whether or not the election was going to be decided by a court or not. It was whether it was going to be decided by the Florida court or by the United States Supreme Court, for a federal election,” before telling the reporter that any partisan decisions during the recount came from the Florida Supreme Court and not the U.S. Supreme Court.
What an insult to the tens of thousands of Floridians whose votes did not count in November 2000. What a slap in the face to the Florida Supreme Court, which after all was interpreting state law when it rendered its various Gore-friendly rulings. And what a cynical, offensive way to look at the art and science of judging. Either Justice Scalia is astonishingly blind to the arrogance and partisanship of his comments -- eight years later and on the eve of another election -- or he is keenly aware of it and simply doesn’t care. I tend to believe the latter but, either way, it is conduct unbecoming a sitting judge anywhere.
Such provocative comments from a sitting Justice would be disturbing enough if they were a random, isolated incident. But they are not. Justice Scalia has made an out-of-court career commenting upon “live” topics that have or could come before him. So, too, to a far lesser extent, have Justices Clarence Thomas and Anthony Kennedy and Stephen Breyer. These are not your grandfather’s Justices. They aren’t even your father’s Justices. They are bold and sassy-judge-philosophers who don’t like to pass up a chance to share with the world their view of it -- even when that view skews our wishful perceptions of them as neutral arbiters of the rule of law.
This is the trend made more pronounced this past term. It is the trend that makes the Roberts Court, circa 2008, the disappointment it has become. The chattering class has talked for a decade -- ever since the Monica Lewinsky affair and the impeachment of President Bill Clinton -- about the politicization of the law. And, indeed, this partisanship is as alive on the Court as it has ever been. As alive as it was on the right in the 1910s and 1920s and on the left in the 1950s and 1960s. The slew of 5-4 decisions on the most controversial cases of the term proves that.
But it’s not the staid partisanship of those earlier eras. It’s the in-your-face, capture-the-news cycle, age-of-the-Internet partisanship that marks our current media world. Justice Scalia apparently wants to be a rock star; wants to shock his viewers and listeners and readers. Unchained from any concerns about public opinion, unaccountable to any electorate, he realizes that not only can he rule whichever way he wants to as a Justice he also can pretty much say anything he wants to when he takes off his robe. And the more he does this, the more comfortable other Justices, on the left and the right, may feel the urge or even the right to do the same. This is not a good thing.
The best thing the Justices can do this summer vacation, then, is to go away and (with all due respect) shut up. No more speeches in which they announce their views on relevant topics. No more book tours selling self-serving books. No more contemplating the grand legal themes of our times or defending against all evidence their past mistakes (i.e., Bush v. Gore). Don’t go away angry, Justices. Just go away. And when you come back on the first Monday in October try to keep the snarkiness to yourselves. We don’t want a Court made up of Justices who act like talk-radio hosts. Lord knows we already have enough of them in this country.
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See all 42 CommentsConsidering that your posts all consist of personal attacks, containing no substance whatsoever, your criticism of me is laughable.
Un-American? My family came to this country 400 years ago, helped to gain its independence from England, helped to write its Constitution, and has fought and shed blood in every war ever fought by this country.
Maybe you should study a little American history.
It was Abraham Lincoln who shredded the Bill of Rights, jailed newspaper editors and shutdown newspapers who voiced opposing points of view, who suspended the Writ of Habeous Corpus, and who established extermination camps in Chicago and elsewhere (the Nazis probably got some of their ideas from Camp Douglas, etc.)
It was Franklin Roosevelt who incarcerated hundreds of thousands of American citizens because of their ancestry.
It was John Kennedy who sent the CIA into South Vietnam to assassinate President Diem and his family.
It was a drunken Ted Kennedy who left his female companion to drown.
As to political affiliation, I have none. I vote for the person best capable to serve. You should try it sometime.
I do not know where you get your information,
but
you are very ignorant or very much a republicon LIAR
in the same vein as your corrupt president
a republicon voter
read the bill of rights, read the constitution, the court is not here to provide conservatives with support,
the court is here to uphold the rights of ALL MEN thru the standard of the constitution
anything else, is UN AMERICAN.
for example GW Bush and McBushsame using torture and invading defenseless countries , that is UN American
as well,
Iran is an example of a place where religion runs everything, and that is what YOU want for america
you are UN American
Liberals, no matter the circumstance, believe in a world utopia where peace is aquired wholly by capitulation to outside demands.
Nothing could be further from the truth, or more dangerous to believe.
This is why liberals have no place in America''s future - because with liberal making America policy, America will have no future.
Think about THAT Andrew Cohen, you whining liberal putz.
And yet, when we have cases reported of hundreds of residents of the local cemetery voting at the local precinct, they don''t bat an eye.
The 2000 election was close, very close.
There is NO evidence to support any allegation that the election was stolen.
The US has the highest number of lawyers per capita in the world. If there were any real evidence to support these allegations, provable in a court of law, such proof would have been offered long before now.
Was the election run poorly in some areas? Absolutely!
Have significant strides been made to see that future elections are run better? Yes.
Has enough been done? Probably not.
Please! The court did not install Bush.
The court told Florida that it could NOT continue a recount using inconsistent procedures in violation of the 14th amendment.
The court also told the Florida Supreme Court that they (the Florida Supreme Court) could not override the date set by the Florida Legislature for the selection of delegates to the Electoral College.
The US Supreme Court did NOT tell Florida that they could not conduct a recount. They told them to use consistent rules and to abide by the law set by the State of Florida.
Gore would have been well within his rights to go back to the Florida Supreme Court and request tat the court approve uniform recount standards and proceed with the recount. However, given the time constraint (that according to Florida law the electors had to be selected by December 12th), he decided to concede the race due to a lack of time to complete a statewide recount.
Gore would have been better off had he requested a statewide recount immediately following elecion day due to the closeness of the vote. I don''t understand why he did not make he request until it was too late to meet the statutory requirements.
Would he have won Florida? I have seen compelling arguments on both sides.
I will make the point that in the future, if we again have a close vote such as was the case in Florida in 2000, a statewide recount will be ordered.
No, they do not have to do a statewide recount if there are alleged problems in only some precincts.
But what Florida was doing was to perform recounts in selected precincts, and to use different recount procedures in those various precincts.
The court ruled that Florida had to use uniform recount procedures in order to comply with the 14th amendment.
They stopped the statewide recount precisely because of the use of nonuniform recount procedures for partisan purposes.
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Posted by jbaker314 at 08:14 PM : Jul 03, 2008
The other thing is, and this truthfully is most precious, the conservative court ignored their states rights doctrine to install Bush. You know that doctrine, the one that says that the states should each be allowed to determine thier stance towards abortion. The conservative court ignored that doctrine and ordered a state to stop counting votes, saying that in this case federal law should prevail. Where was Scalia''s dead constitution then? Where was original intent? Would the founders have agreed that the federal government should tell a state how it could count its votes? It seems to depend, at least as far as the conservatives are concerned, upon the issue.
No, they do not have to do a statewide recount if there are alleged problems in only some precincts.
But what Florida was doing was to perform recounts in selected precincts, and to use different recount procedures in those various precincts.
The court ruled that Florida had to use uniform recount procedures in order to comply with the 14th amendment.
They stopped the statewide recount precisely because of the use of nonuniform recount procedures for partisan purposes.
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Posted by jbaker314 at 08:14 PM : Jul 03, 2008
The last I checked, the states were allowed to determine their own method of recount. The reasons for the different recount methods were local. Again, local control being something so called cons are said to favor when it suits them, but not in this case. The different counties used different methods to count the vote in the first place, so their recount methods were bound to be different. The US Court ordered the recount to stop, which was not necessary and by the overwhelming majority of one, voting along idealogical lines, gave the presidency to George Bush.
No, they do not have to do a statewide recount if there are alleged problems in only some precincts.
But what Florida was doing was to perform recounts in selected precincts, and to use different recount procedures in those various precincts.
The court ruled that Florida had to use uniform recount procedures in order to comply with the 14th amendment.
They stopped the statewide recount precisely because of the use of nonuniform recount procedures for partisan purposes.
It turned out to be a deception on his part. He apparently believed that if we believed that he had WMDs, we would not go into Iraq.
He was wrong.
Would we have gone in if he had been more forthright? I don''''t know, and I will not try to guess. History will have to be the judge of that.
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Posted by jbaker314 at 07:38 PM : Jul 03, 2008
JBaker, there were weapons inspectors on the ground who asked for more time to search for WMD, which was the spoken reason for the invasion. Bush ordered them out and invaded. If he had wanted to exaust every opportunity to avoid war he could have exhausted this one.
Also this seems very close to the "Tommy did it too argument". And to that I would just say what all adults have said down through the ages "If Tommy jumped off a bridge would you do so also?"
The fact is Hussein was bottled up. Sure we had to fly planes in a no fly zone, but he wasn''t attacking anyone, we weren''t spending billions every month on nothing and most important, we weren''t going to have more than 4000 of our best die as a result.
No. The Florida court had only ordered recounts in selected precincts, and was using inconsistent recount rules. That was what the US Supreme Court said violated the 14th Amendment.
The Court could have cared less what specific recount rules were used, as long as they were consistent acoss the state. They were not.
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Posted by jbaker314 at 07:33 PM : Jul 03, 2008
So, when there is a statewide election, if any precinct has a recount they all must have a recount? Is that the logic jbaker?
In respect to WMDs, every intelligence service (US, British, French, Chinese, Russian, etc.) is on record as believing "at the time" that Iraq was in possession of WMDs, a view that Saddam encouraged through his various activities.
It turned out to be a deception on his part. He apparently believed that if we believed that he had WMDs, we would not go into Iraq.
He was wrong.
Would we have gone in if he had been more forthright? I don''t know, and I will not try to guess. History will have to be the judge of that.
No. The Florida court had only ordered recounts in selected precincts, and was using inconsistent recount rules. That was what the US Supreme Court said violated the 14th Amendment.
The Court could have cared less what specific recount rules were used, as long as they were consistent acoss the state. They were not.
We need Experience. We need Hillary and Bill.
We can''''t afford to take a chance on someone who still needs training wheels on his bike.
We can still have Hillary.
It IS up to US. All we have to do is let it be known that Hillary backers are NOT going to vote for Obama under any condition. Thats all it takes. If we don''''t play thier game with them, there is no game and the candidate that most Democrats cast their votes for in the Primary will be the next President of the United States!
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Posted by JTait2 at 02:42 PM : Jul 03, 2008
You aren''t really a Democrat. No Democrat is this stupid. Were you voting for Clinton because you liked the way she dressed or was it because you liked her ideas? If it was because of her ideas, then you would support Obama who, by the way, Hillary Clinton supports as well.
Perhaps you would care to offer at least a minimal legal argument in support of your position?
Saying that the court''''''''s decision has no basis in law and $4.00 may get you a cup of coffee at StarBucks.
It won''''''''t get you anywhere in a court of law.
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Posted by jbaker314 at 04:19 PM : Jul 03, 2008
Here is further minimal legal argument. Didn''t the Florida court require a recount in Florida precincts? And didn''t the Florida court have time (debatable whether it was enough) left to do so, when the US Supreme Court ordered the recount stopped? What WAS the reason the Supreme Court used to stop the Florida Supreme Court from counting in Florida districts? It escapes me. Can you help JBaker?
In any case, the topic at this moment is the correctness or incorrectness of the US Supreme Court ruling in Bush v. Gore.
Again, from a purely LEGAL point of view, I believe that the court made the correct rulig.
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Posted by jbaker314 at 01:02 PM : Jul 03, 2008
I can settle this for you. Al Gore WOULD hav edone a better job with 9-11 and more importantly, with its aftermath. He would NOT have attacked Iraq as a consequence of the attack or for WMD that did not exist. He would not have funded the war with credit causing the dollar to lose value and the resultant increase in oil prices.
Perhaps you would care to offer at least a minimal legal argument in support of your position?
Saying that the court''''s decision has no basis in law and $4.00 may get you a cup of coffee at StarBucks.
It won''''t get you anywhere in a court of law.
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Posted by jbaker314 at 04:19 PM : Jul 03, 2008
OK here''s one. Were they considering Federal law or Florida law? Typically the right wing argues that the states have the right to determine their own laws. Which is why it required a complete hypocrital turning away from principle for this court to stop the vote.
It was Alito, Roberts, Scalia, and Thomas, joined by Kennedy, who kept the Court from tossing our individual rights enumerated in the 2nd Amendment.
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Posted by jbaker314 at 06:45 PM : Jul 03, 2008
That is a matter of opinion isn''t it. Is the right collective or individual? By the overwhelming 1 vote majority it was determined it was individual. NOT some thing that inspires.
I typically agree with the concept of individual rights, but knowing the idealogues we have on the right wing of the court I am instinctively opposed to this decision. It is always better to assume if this crew is for something, then suspicion is required.
It was Alito, Roberts, Scalia, and Thomas, joined by Kennedy, who kept the Court from tossing our individual rights enumerated in the 2nd Amendment.
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