October 1, 2006

If you're looking for something to read about the return of the Supreme Court...

You'd be hard pressed to find the conventional wisdom summed up more conventionally and more summarily than in this little Time piece.

16 comments:

Sloanasaurus said...

I still find it very strange that some Justices were able to find in our Constitution that race can be used as a factor for Public University Admissions... especially after we had a bloody civil war and Constitutional Amendments to bring truth to the phrase that "all men are created equal." There isn't a single soldier who fell on the battlefields at Gettysburg, Anteitim, or Cold Harbor who was fighting for racial preferences - None of the members of Congress or state legislators who voted for the 14th and 15th amendments were voting for racial preferences either. That decision is nothing more than a spitting on the graves of our ancestors and will be another blot on our Supreme Court and national history.

I have nothing against giving poor students money to attend college. However, to give someone an advantage because they are of a certain race is abhorrent.

When I attended the UW Madison law school, it turned out to be the most racist institution I have ever been a part of. In the school there were all kinds of special groups - there were black students associations, and gay lesbian associations, and native american, and hispanic associations, etc., etc., etc., Moreover, minority groups tended to stay in their own groups. As an undergrad at Madison I never noticed such self segregation. In the law school it was all "in your face..." It was a shock because I thought law school was going to be a "great place to exchange ideas..." What a let down. What a sham.

Nothing was more symbolic than the OJ trial. When the verdict was being read the black students association had a party where they watched the verdict (at the law school (at least it seemed that way). When the verdict was read, the whole group burst out with wild cheers of joy. It was one of my best lessons in law school - I learned that race trumps truth. Maybe it always has.....

Simon said...

"Kennedy is the likely swing vote in tight cases. He began to play the role last term--with characteristic moderation."

Isn't it interesting how "moderation" looks a lot like incoherency?


"In December, the court will wrestle with whether race can be used to assign pupils to public elementary and secondary schools"

It's hard to see how Kennedy can rule other than against such programs, in light of his Grutter dissent.

Maxine Weiss said...

I'm doing some reading about the Warren Court of the 1960s, and how liberal they were, and how they let all these criminals go free on technicalities.....'Miranda' was enacted in 1964 etc..

I wonder if we'll ever see a Court like that again...?

Peace, Maxine

Adam said...

Sloanasaur, the same people who passed the 14th Amendment then authorized the Freedman's Bureau and other race-conscious ameliorative measures. Go figure.

Ruth Anne Adams said...

I prefer this little timepiece.

Doyle said...

Maxine -

I hope so. Unfortunately it may take awhile... Hopefully Clarence Thomas eats lots of trans fats.

John Jenkins said...

@ Adam,

(1) The Fourteenth Amendment gives the power to Congress to enforce equal protection of the laws. That's what those programs were designed to do.

(2) Even if that power extended to Affirmative Action (which is another question), it is Congress's power alone, not the power of the State governments. Which governments must provide equal protection of the law without regard to race. It's hard to see how actively favoring one race over another is consistent with that requirement (irrespective of whether affirmative action is a good idea: the Court obviously forgot its role as the interpreter of law and not righteousness in this area).

(3) We're 140 years or so into the life of the Thirteenth,Fourteenth and Fifteenth Amendments. While individual racism still exists, I think it's been a while since the government (particularly the liberal education side of government) has discriminted against black students. (bracketing the world of criminal procedure for another time).

Much of this would be solved if government would get out of the education business, but that won't happen in my lifetime.

Maxine,

I hope not. Miranda ranks right up there as the single most lawless decision in the Court's history (with Bush v. Gore up there too). It had no basis in the law and was a complete fabrication, the implications of which are still being played out (Is it a Constitutional imperative? If not, how is it binding on the states, etc.) Of course, without it, what would crime dramas do?

@sloan,

If it weren't race, it would be something else. Clubbiness is part and parcel to being human.

John Jenkins said...

@ doyle,

Sentiments like that are precisely why there won't be such a court anytime soon. People willing to wish death on their political opponents for the sake of their own power don't deserve to be in power.

Maxine Weiss said...

From Ann Coulter's 'Godless' Chap 2:

"The heyday of liberal activism on the Supreme Court. was from 1953 to 1969, with the Warren Court remaking criminal law to benefit criminals. Hundreds of thousands of violent criminals were unleashed on society, where they could commit more rapes and murders."

She's talking about:

1. Gideon v. Wainwright.... (right to a public defender--at taxpayer expense)--

2. Mapp v. Ohio.....(illegal search and seizure-evidence thrown out)

-and- of course....

3. Miranda v. Arizona ....(criminal confessions without an attorney present)

Those three are the biggies, and all three, enacted in the 60s led to sky-rocketing crime rates.

Coulter talks about how Ernesto Miranda was a rapist, who had ALREADY been convicted before being completely overturned.

Hey, who knew Ann Coulter's stuff was so scholarly.

I think Ann C. could give Ann A. a run for her money in terms of teaching Con Law!

Peace, Maxine

Fenrisulven said...

Doyle: I hope so. Unfortunately it may take awhile... Hopefully Clarence Thomas eats lots of trans fats.

Damn. The sidebet was: the first person to wish for a SCOTUS death would be a lefty, even though its the libs on the court approaching their sunset. I passed on the bet because the odds were too weak at 1-3.

George said...

My nine-year-old daughter and I sat in on one of the court's sessions last winter. Quite something, it was, my daughter's good behavior.

As for the Justices, Souter looked like something you'd find in Norman Bates' fruit cellar.

Thomas had an egg frying on top of his head.

Kennedy had all these little ceramic mules, the kind you'd find on Ebay, like salt and pepper sets. He kept taking them out of a paper bag and carefully arranged and rearranged them on the bench in front of him.

Roberts was coughing. Every time he did, a tiny yellow feather would pop out of his mouth, and all eyes would fix on it as it gently settled through the air.

Bryer rubbed his scalp like a man who couldn't remember whether he'd placed his lunch order. I'm guessing one of those Weight Watchers frozen entrees.

In all seriousness, Justice O'Connor looked a bit frail and exhausted, and she has earned a well-deserved retirement.

Simon said...

Adam said...
"[T]he same people who passed the 14th Amendment then authorized the Freedman's Bureau and other race-conscious ameliorative measures."

That's an interesting argument to advance, because it parallels an argument advanced by Justice Scalia in McCreary County:

"The First Congress instituted the practice of beginning its legislative sessions with a prayer. The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate. The day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim 'a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favours of Almighty God' ... The same Congress also reenacted the Northwest Territory Ordinance of 1787, Article III of which provided: 'Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.' And of course the First Amendment itself accords religion (and no other manner of belief) special constitutional protection."

McCreary County v. ACLU of Ky., 545 U.S. __ (2005) (Scalia, dissenting) (citations omitted). Accord Wallace v. Jaffree, 472 U.S. 38 (1985) (Rehnquist, dissenting); Edwards v. Aguillard, 482 U.S. 578 (1987) (Scalia, dissenting). So, Adam: if you hew to your logic that legislative actions roughly contemporary to the ratification of the Fourteenth Amendment are dispositive as to its meaning (assuming, arguendo, that the statutes you cite establish the proposition you urge upon us), trumping even its plain text, surely you must also accept that legislative actions roughly contemporary to the ratification of the First amendment are dispositive as to its meaning, trumping even its plain text? Thus, you surely must agree with Justice Scalia's assesment that the First Amendment does not mandate government neutrality between religion and irreligion, right?

Fitz said...

"Kennedy is the likely swing vote in tight cases. He began to play the role last term--with characteristic moderation."

I think good old Kennedy is getting ready to be the darling of the Left. "moderation" means swinging to the Left to the MSM.

"In December, the court will wrestle with whether race can be used to assign pupils to public elementary and secondary schools"

Is this not just the failed busing policy. I dont mind affirmative action (because it shows we dont fetishize) the 14th amendment. I am not familiar with the facts, but unless these plans a ratified by the repestive state legislatures (judicial ordered desegregation has been a failure)

jeff_d said...

My favorite line in the Time article is, with respect to whether Kennedy will stick with his dissent in Stenberg v. Carhart, "the question is whether he'll be swayed more by his aversion to abortion or his respect for precedent."

Maybe this was lifted verbatim from a People For the American Way or NOW press release. Journalism it is not. Hard to imagine the issue being framed more dishonestly.

First, Kennedy's personal feelings about abortion aren't in the least relevant, and nothing in his jurisprudence provides a shred of support for the view that a policy preference against abortion has motivated his votes in abortion cases. A quick glance at Casey might be worthwhile here.

Second, there are obvious reasons other than "aversion" to abortion to uphold state-imposed restrictions on partial birth abortion procedures. Respect for constitutional text and history leaps to mind as one such motivation. So does respect for democratic government.

Finally, it's hard to imagine any area of law less deserving of "respect for precedent" (i.e. stare decisis) deference than Casey and its offspring. As Scalia pointed out in dissent in Carhart, the majority opinion amounted to five lawyers guessing as to how to resolve a medical issue that might never even arise. Not exactly the sort of thing that ought to endure through the ages.

Simon said...

Jeff:
"My favorite line in the Time article is, with respect to whether Kennedy will stick with his dissent in Stenberg v. Carhart, "the question is whether he'll be swayed more by his aversion to abortion or his respect for precedent." Maybe this was lifted verbatim from a People For the American Way or NOW press release. Journalism it is not. Hard to imagine the issue being framed more dishonestly. First, Kennedy's personal feelings about abortion aren't in the least relevant, and nothing in his jurisprudence provides a shred of support for the view that a policy preference against abortion has motivated his votes in abortion cases. A quick glance at Casey might be worthwhile here."

Ah, but don't you see what Time did there? By saying "the question is whether he'll be swayed more by his aversion to abortion or his respect for precedent," they set up a false dilemma: that either Kennedy will respect precedent and uphold the law, or he will give in to his personal proclivities. They thus frame the question in such terms that if Kennedy votes to strike down the law, he can be painted as a judicial activist, both because he didn't follow precedent, and because the only other alternative to following percedent is to be "swayed more by his aversion to abortion." As with most liberal media bias, this isn't precisely an intentional distortion, it is a byproduct of a mindset that cannot process alternatives that it disagrees with.



"Finally, it's hard to imagine any area of law less deserving of "respect for precedent" (i.e. stare decisis) deference than Casey and its offspring. As Scalia pointed out in dissent in Carhart, the majority opinion amounted to five lawyers guessing as to how to resolve a medical issue that might never even arise. Not exactly the sort of thing that ought to endure through the ages."

Well, stare decisis is at its nadir in constitutional cases in any event. See Seminole Tribe v. Florida, 517 U.S. 44 (1996) ("When governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent. Our willingness to reconsider our earlier decisions has been particularly true in constitutional cases, because in such cases correction through legislative action is practically impossible") (citing cases) (citations and internal quotation marks omitted); accord New York v. United States, 326 U.S. 572 (1946) (Douglas, dissenting) ("'Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.' But throughout the history of the Court stare decisis has had only a limited application in the field of constitutional law. And it is a wise policy which largely restricts it to those areas of the law where correction can be had by legislation. Otherwise the Constitution loses the flexibility necessary if it is to serve the needs of successive generations") (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. at 406) (citations omitted); Agnosti v. Felton, 521 U.S. 203 (1997) ("Stare decisis is not an inexorable command, but instead reflects a policy judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right. That policy is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.") (citing cases) (citations and internal quotation marks omitted).

But, while "stare decisis is not an inexorable command, particularly when we are interpreting the Constitution, even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some special justification," Dickerson v. United States, 530 U.S. 428 (2000) (citations and internal quotation marks omitted), and "[t]hough from time to time we have overruled governing decisions that are 'unworkable or are badly reasoned,'" - and Roe and its progeny are both - "we have rarely done so on grounds not advanced by the parties." United States v. IBM, 517 U.S. 843 (1996). Do not look to the Roberts court to overrule Roe in the abortion cases this term. That's a long wait for a train that don't come. Unless the litigants specifically brief for it, I would expect a narrow a ruling, rather than a frontal assault - and at most, an overruling of Stenberg.

Fenrisulven said...

Super Duper Precedent.

C'mon. YOu know you want to say it.

Super Duper Precedent.

Its fun :)