Category: Courts
Posted by: A Waco Farmer
Blackstone's Formulation:

better that ten guilty persons escape than that one innocent suffer

Even in what many seem to consider a "Bush-controlled, neo-fascist America," we are blessed with a remarkable justice system.

As we speak, the case of Ali al-Marri weaves its way through the American legal process, addressing some of the most crucial issues inherent within the war on terror. The Bush administration currently holds non-citizen (but legal resident), Al-Marri, in military custody as a suspected enemy combatant. According to the executive, Al-Marri's alleged ties to al-Qaida make him a threat to national security.

Today the 4th U.S. Circuit Court of Appeals in Virginia hears arguments on whether Al-Marri should be charged or released from federal confinement. In June, a three-judge panel of the court ruled 2-1 that even under the Military Commissions Act, legislation passed in 2006 to establish military trials, Ali al-Marri retains the right to trial. The government sees it differently and asked for the rehearing, and a ruling is expected in several weeks.

No matter which way the circuit court rules on this case, it is a near certainty that the Supreme Court will eventually rule on the constitutionality of the Military Commissions Act, which will ultimately determine the fate of al-Marri.

The wheels of American justice are turning.

Over at the Supreme Court yesterday, at least five justices agreed to stay the impending execution of Earl W. Berry, who, over the course of nineteen years, had exhausted all his appeals and was on death row in Mississippi and awaiting execution that very evening.

Ironically, Berry, who had brutally beaten to death a 56-year-old woman whom he had kidnapped as she was walking home from choir practice in 1988, argued most recently that Mississippi's system for execution, death by lethal injection, was cruel and unusual punishment.

This case also is part of a larger web of impending cases linked to a future Court decision; in this instance, the issue is the constitutionality of lethal injection.

The wheels of American justice are turning.
Category: Courts
Posted by: A Waco Farmer
1 October 2007

This morning, in celebration of the First Monday in October, traditional opening day of the Supreme Court season, C-SPAN's Washington Journal featured a discussion of the Court's docket with LA Times court reporter, David Savage.

For the most part, Mr. Savage proved perfectly pleasant and informative.

A few moments, however, proved worthy of a raised eyebrow:

1. He echoed the increasingly ubiquitous praise of Justice John Paul Stevens. This will be a theme of the session. I will have more on this phenomenon coming soon.

2. He also reflected the obligatory dismissiveness of Clarence Thomas. Savage generously called his personal story "heartwarming," but he wondered why he is still so angry over the events of 1991. Savage also observed that Thomas often takes on a "woe is me" attitude, intent on dwelling on that trying period in his life.

Two humorous moments:

In response to a clip from 60 Minutes in which Thomas railed against political leaders in the black community intolerant of dissenting opinions, Savage seemed absolutely perplexed that there might be a party line for African Americans or a so-called black gospel.

Savage: "I am not at all sure what he is talking about."

The Times reporter went on: "He seems to be saying that people dislike him for being an independent thinker. I don't know anybody who is against independent thinking."

I think Savage means I don't know anyone who is against independent thinking as long as they think independently along the same lines as I do.

That is, I am wondering how many fellows in the LA Times newsroom are big supporters of the war in Iraq--or consider Ronald Reagan to be the best president of their lifetime.

One other funny thing:

Asked about this upcoming memoir that Thomas is promoting, Savage again went blank, racking his brain for anything remotely like this in the history of the court and then finally pronouncing the memoir completely unprecedented.

A few callers later Savage was forced into admitting that the Sandra Day O'Connor memoir was somewhat similar to Thomas's memoir--but merely in the sense that it too was a memoir.
Category: Courts
Posted by: an okie gardener
I am behind in blogging. Here's a report from a Constitution Day forum I attended at Cameron University in Lawton, Oklahoma. The panel consisted of 3 judges(J) and one state legislator(L).

Q: what is the most striking feature of the Constitution in your opinion?
J: it is enforcable against the government
J: it is adaptable and flexible
J: its balance between liberties and police powers
L: it is a guarantor of rights , not a grantee of rights

Q: what is the role of states today, given their decrease in power?
J: there are natural ups and downs in the relation of power, someday the states will be up again
J: there is a balance in the system
J: Rehquist began a continuing process of moving power back to the states
L: we in the states are addicted to Federal $, and until that changes, the Feds will be supreme

Q: what about illegal immigration?
J: the situation is "total lawlessness" and we cannot long stand lawlessness in such an important area of our nation's life
J: we cannot stand the undermining of the rule of law; the rule of law is why people come here in the first place
J; how do we enforce immigration without upsetting the balance of police power and liberty in favor of police power?
L: by the Constitution it is a Federal problem, not a state problem

Q: what about terrorist wiretaps under the Patriot Act?
J: an established illegality, being delayed in reaching the Supreme Court
J: be afraid
J: ?
L: a Federal government authority, but I don't want our children to get blown up
Category: Courts
Posted by: A Waco Farmer
Stipulation: Cass Sunstein, the distinguished professor of law from the University of Chicago, is a brilliant legal mind, and I generally appreciate his reasoning even when I disagree with his conclusions.

However, his column this week in the American Prospect,

"The Myth of the Balanced Court,"

is surprising and disturbing for its absolutely fallacious premise.

Sunstein's Assertion (condensed and slightly rearranged):

"The mainstream media promotes a conceptual scheme concerning the current Supreme Court, the Myth of Balance Between Left and Right, which makes it utterly impossible to understand either the Court's current makeup or its recent history."

"The Myth of Balance holds that the Court has a liberal wing (Stevens, Souter, Ginsburg, and Breyer) and a conservative wing (Scalia, Thomas, Roberts, and Alito) with Justice Anthony Kennedy serving as the swing vote, or the moderate."

Not so, says Sunstein. Conservatives have achieved a "stunningly successful" revolution on the Court, which has been so successfully hidden by the shills in the mainstream media "that most people have not even noticed it" (of course, Sunstein is a notable exception).

According to Sunstein, "[Ruth Bader] Ginsburg and [Stephen] Breyer [two so-called liberals] are...far more moderate than those of the great liberal visionaries of the Court's past, such as William O. Douglas and William Brennan." Moreover, in Sunstein's book, David Souter and John Paul Stevens are essentially conservative.

What gives?

Sunstein admits that all this nonsense (my characterization) is filtered through his formative experience of clerking for the Court in 1980 during the William Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist years.

Sunstein: "Believe it or not, this Court was widely thought to be conservative."

Actually, I am incredulous. Who thought that exactly?

FYI: That 1980 Court is essentially the same "conservative" Court (switching Stevens for Douglas) that voted 7-2 in favor of Roe v. Wade.

The slight of hand: he uses the Burger Court, arguably one of the most liberal Courts in the long history of American jurisprudence, as the standard against which the political make-up of all courts must be judged. If that Court was conservative--then by comparison, this Court is far right.

Come now, Professor. Sunstein's entire argument collapses like a house of cards if we choose another famous court as the preferred point of reference.

What if we use the Roger B. Taney court as the standard? The Roberts Court would seem pretty left of center. What if we used the William Howard Taft Court? Or the Court headed by Melville Fuller or Edward O. White. Again, would not the Roberts Court look ultra progressive in comparison?

But, for Professor Sunstein, constitutional history seems to begin with Earl Warren.

His second to last paragraph attempts to give some "balance" to his essay by finally addressing (albeit indirectly) the obvious fallacy:

"Nor am I saying that the liberals of the Court's past were correct in their view of the Court's role. On the contrary, the Court does best if it proceeds cautiously and incrementally, with respect for the elected branches of government. Marshall and Brennan, no less than Scalia and Thomas, tried to use the Constitution to impose a contestable political vision on the nation. For the future, the preferable route was charted by underrated justices such as Felix Frankfurter and Byron White -- excellent lawyers who worked within established categories and were reluctant to strike down acts of elected officials, above all Congress."

But it is too little too late.

Sunstein is a vocal proponent of "incremental change" concerning constitutional interpretation. That is, he views conservatives who want to roll back liberal innovations as radicals; however, he has little contempt for historic liberals who radically altered American jurisprudence. Morevoer, he champions the current liberals (and lauds them as conservatives) because they seek to protect the radical departures of the recent past.

UPDATE: A thoughtful and extensive commentary on Sunstein's essay here from Rightlinx.
Category: Courts
Posted by: A Waco Farmer
Today RCP links to a Nicholas Lemann essay in the New Yorker, which condemns a recent Supreme Court ruling as "a complete departure from more than a half a century of jurisprudence on race."

Professor Lemann, dean of the Journalism School at Columbia University, asserts that President "Bush’s legacy" includes "one wholesale change that will likely endure for a generation: the construction of a distinctly right-wing Supreme Court."

Specifically, on race, the right-wing Court wrought by Bush has "abandoned the twin goals of black advancement and racial harmony."

Such hyperbole is embarrassing.

No matter, similarly exaggerated accounts warning of a return to Jim-Crow America have been ubiquitous since the Court released its holding in Parents Involved in Community Schools v. Seattle School District No. 1 this June (2007).

The case revolved around the practice of school districts deciding admission to popular schools based on race--in order to achieve integration and diversity.

Chief Justice John Roberts, who wrote for the majority in a five-four decision to strike down the practice, famously declared:

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

This all makes Mr. Lemann and a host of other concerned citizens very unhappy.

Lemann again: "The Court would do well to contemplate the landscape of the Administration’s wreckage before it considers any other radical solutions, and sweeps away an accumulated body of law and experience."

Reality Check:

Wreckage? Radical? Sweeping Change?

All of this hand-wringing flows from the assumption that only court-ordered integration and other forms of coerced civil rights enforcement stands in the way of a return to our egregious racial past. More importantly, these gloomy scenarios ignore the dramatic transformation of American life between 1954 and the present.

Much has changed since Brown v. Board. While it is true that every African American citizen of the United States does not have total equality, black Americans of 2007 have great opportunity.

Who can deny that race is more often than not a significant advantage (not a disadvantage) for African Americans seeking employment in academia, corporate America, or even the presidency of the United States? That is, all things being equal, who among us would not prefer to check a favored-minority box when applying for admission or seeking employment at the finest institutions of higher learning or the best jobs in this country?

An aside: We are irreversibly pointed toward a re-evaluation of racial politics in America. In the simplest terms, our current cultural standard rests on according preferences to descendants of victims of past racial discrimination and abominations at the expense of other Americans increasingly less different from the protected class and more and more unconnected to the sins of the fathers. Such a system cannot survive the coming reconciliation with basic principles of American justice and equality.

The other outlandish assumption on the part of Lemann concerns the transformation of the Supreme Court into a disciplined, powerful, and permanent arm of the vast right-wing conspiracy.

Reality Check #2:

After nearly four decades during which Republican presidents appointed eleven Supreme Court justices, while Democratic presidents nominated only two, the high court may have finally achieved a tenuous 5-4 majority that depends on the frighteningly fragile conservative vessel, Anthony Kennedy. I emphasize may, for only a fool completely ignorant of history and politics (any nominations?) would pronounce this current configuration, admittedly leaning right for the moment, a permanent institution. One stiff wind, many conservatives fear, and Kennedy is gone.

Another side note: More on this in the coming days--but Kennedy is under assault on one hand (“Scalia-like conservative cretin”) and intense friendly pressure on the other ("Kennedy is evolving; Kennedy is now the swing vote"). This good-cop, bad-cop routine is designed to flip Kennedy into the liberal camp.

But, even if Kennedy holds to his life-long judicial leanings in the face of Beltway celebrity, there is no indication that the conservatives are likely to gain another seat on the Court in the near term. Barring an unforeseen and untimely demise, the older liberals are intent on waiting out the Bush administration to retire. And it seems more than likely that a Democratic president will have an opportunity to appoint at least two nominees during her next term.

Shame on Nicholas Lemann and his fellow travelers for their disingenuous diatribes designed to scare the uninformed and whip up partisan fervor.
Category: Courts
Posted by: A Waco Farmer
Some of the most aggrieved criticism of the Libby commutation last week came from sentencing guideline experts. Expressing outrage over special treatment, a number of legal specialists castigated the President for showing mercy to his subordinate after turning a cold shoulder to so many others over the course of his administration.

Is it hypocritical for the President to show leniency toward a loyal member of his administration--and not to others? On its face, we are hard-pressed to conclude anything other than blatant favoritism. Inarguably, these experts on sentencing practices have a point, especially in terms of the larger issue that they are attempting to spotlight.

On the other hand, the Libby case may tell us much more about Washington politics than it reveals about the American justice system in general. Rhetoric aside, Scooter Libby is no "ordinary Joe" convicted under normal circumstances.

Why is this different?

Customarily, an ordinary person does not contend with a top-flight US attorney, appointed as a special prosecutor with unlimited resources, instructed to devote all his energy toward investigating a specific incident, which may or may not have been a crime, and under intense pressure from the media and much of the political establishment in Washington to produce a public scalp.

In the end, the Prosecutor obtained a conviction. Nevertheless, the extraordinary nature of the case was exacerbated by the fact that the prosecutor did not charge Libby (or anyone else) with violating the law that originally precipitated the investigation.

Should the President treat Libby like just another convicted criminal under these circumstances?

It occurs to me that the proponents of sentencing reform are asking the wrong questions and scoring a few cheap debating points on an intensely political but not necessarily analogous event.

If, in the end, the President takes extraordinary action to spring a person of good character caught in a trap set through extraordinary means—then, that is the way the game is played. The constitutional power of the President trumps that of his tormentors. From check to check-mate on the Washington chessboard.

Other Bosque Boys thoughts on Scooter Libby:

"Bush and Libby: The Morning After" (ramifications) here.

"A Judicious Use of the President's Power: in his own words..." here.

The entire Bosque Boys file of posts pertaining to Libby here (click and scroll).

You may "bookmark" the Bosque Boys by clicking on the icon in the upper right corner.
Category: Courts
Posted by: A Waco Farmer
Kudos to Tocqueville, who predicted, way back when, that the ACLU had no standing in this case contesting the government’s use of warrantless surveillance to monitor suspected terrorists.

Full story via the Washington Post here.

Earlier Bosque Boys coverage here.
Category: Courts
Posted by: A Waco Farmer
On Saturday, C-SPAN will carry John Roberts in the morning (tentatively scheduled for 9:30 EDT); he will address the Fourth Circuit Judicial Conference and review the major decisions of the current Supreme Court term. Following the chief justice's remarks, a roundtable discussion will offer analysis. Discussants set to appear include Duke Law's Walter Dellinger and Akin Gump's Tom Goldstein.

Please note this handy resource from the court's website cataloguing the opinions issued during October Term 2006 here.

On Sunday, 1 July, Michael Barone will be the guest on C-SPAN2's ("Book TV") In Depth, the once-a-month, three-hour interview with a prominent person of letters. Generally, In Depth is a "can't lose" proposition--but Barone seems especially promising. The right-leaning Barone is well known for his encyclopedic knowledge of American politics and his cogent analysis.

Overview of In Depth here.

Specifics about the upcoming discussion with Michael Barone here.

Thanks to Tocqueville for pointing me to the John Roberts programming.
Category: Courts
Posted by: A Waco Farmer
Last month we very briefly discussed the Ledbetter v. Goodyear Tire & Rubber case in which the Supreme Court ruled against a female plaintiff claiming salary discrimination based on gender (you may review here).

This week, Stuart Taylor, the brilliant, implacable and incorruptible legal journalist discussed the case in his column for the National Journal.

Quoting Taylor:

This headline ["Injustice 5, Justice 4'"], borrowed from a New York Times editorial, pretty well sums up the news media's portrayal of a May 29 Supreme Court ruling (here) [PDF] that an Alabama woman suing her former employer for sex-based pay discrimination had not filed her claim within the congressionally prescribed time limit.

Taylor examines the media bias in reporting the decision as well as an enlightening discussion of the ruling itself. Read the full article here.

Another Taylor quote to whet your appetite:

Are Alito and company really such heartless, pro-discrimination brutes? Hardly. Ginsburg's dissent was well put. But Alito had the better of the argument as to congressional language and the Court's own precedents, in my view. And as a policy matter, it's far from clear that justice would be better served by the Ginsburg approach of opening the door wide to employees who, like the plaintiff in this case, wait for many years to claim long-ago -- and thus difficult to disprove -- pay discrimination.

Excellent. Thank you to Tocqueville for passing this along.
Category: Courts
Posted by: A Waco Farmer
My reflexive reaction to the mini-drama over yesterday's Supreme Court of the United States 5-4 decision in re Ledbetter v. Goodyear Tire and Rubber Co.

Read the story from the Washington Post here.

A lot of buzz on this today.

Quick Reaction:

1. If the law passed by Congress to ameliorate salary discrimination based on race and/or gender clearly stated a time limit of eighteen months for redress (which is what our side claims), then it seems a poorly thought-out law. Unless salaries are a matter of public record (which they rarely are), the time limit places an unreasonable obstacle to challenging unfair labor practices. Off the top of my head: Congress should change the law.

2. Ruth Bader Ginsburg and friends should abide by the law. If Justice Ginsburg had succeeded in carrying the day for her side, the ruling would have been a perfect example of legislating from the bench.

Simple Rule: Follow the law. It is not within the province of the judiciary to change the law. In this case, doing the wrong thing for the "right reasons" is still wrong.

I am flying by the seat of my pants on this, as it is not my specialty. Ergo, I welcome some informed commentary. Tocqueville?


Tocqueville wrote:

Your instincts as usual are sound (although I'm not as convinced as you that the Congress's policy judgment is so patently "unreasonable"). The best commentary I've seen thus far is by David Bernstein over at The Volokh Conspiracy: read here.