A Spork in the Drawer

On Guns

I can't say that I have any strong feeling either way about yesterday's Supreme Court ruling on DC's gun ban. While finding for the first time (!) that Amendment II guarantees the right of an individual to possess firearms it leaves open the ability of states and locales to regulate them. In other words, a bit of a mish-mash that will undoubtedly lead to many more court cases.

At any rate, the last 7½ years have taught more than a few liberals that having a gun might not be such a bad thing.

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Embarrassing

Unlike a pair of British reporters, George doesn't know that the Supreme Court is the top court in the land.

And pointing it out is "slanderous."

(With video.)

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We Have Yo Destroy The Constitution To Save It

Sen. Lindsey Graham (R-Closet) has an idea:

Graham said he'd explore the possibility of drafting a constitutional amendment "to blunt the effect of this decision."

[...]

Graham's talk of a constitutional amendment indicated how little room the Supreme Court has left him, Sen. John McCain — the presumptive Republican presidential nominee — and Bush in their long-standing effort to create a separate trial system outside the federal courts for alleged terrorists.

While amending the Constitution to get rid of that pesty Habeas Corpus perhaps Lindsey could eliminate annoyances like the First, Fourth, Fifth, and Sixth Amendments. And regular elections. I mean, how can any Great Leader get anything done if he has to submit to the will of the people now and then?

And Graham belches out this howler:

"The court's ruling makes clear the legal rights given to al Qaida members today should exceed those provided to the Nazis during World War II," Graham said.

Really? Here's just one example:

Those German and Italian POWs held in over 500 camps across the U.S. were sent out to harvest and process crops, build roads and waterways, fell trees, roof barns, etc. In the process, they formed significant, often decades long friendships with “the enemy” and under went considerable changes as individuals and as a group—thus fundamentally influencing post-war German values and institutions, as well as American-German relations. Many even emigrated to the U.S. after the war.

Are there any lies too egregious for a Republican to spread?

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Why Voting For Obama Matters

I've had a chance to sit down and read Scalia's dissent (*.pdf) in today's Boumediene decision and it's a doozy:

America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60–61, 70, 190 (2004). On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.

Notice the conflation, once again, of 9/11 with Iraq.

But more importantly, let's look at this:

On the issue of appointments to the Supreme Court, McCain mentioned that Sam Brownback would play an advisory role in helping decide who he should nominate for the Supreme Court. As models of who he would select, John McCain pointed to Justices Samuel Alito and Antonin Scalia.

Also note that Scalia believes that the Constitution allows for criminal suspects - American citizens here in the US - to be tortured.

Now, look again at today's decision: 5-4. Of those five in the majority at least one and possibly three (Stevens, Ginsburg, and Souter) are likely to die or retire in the next four years.

One vote on the court is all that it will take for rightwing extremists to control that body for at least a generation.

Remember that on Election Day.

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A Surprise

By a 5-4 decision the Supremes get one right:

The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.

In its third rebuke of the Bush administration's treatment of prisoners, the court ruled 5-4 that the government is violating the rights of prisoners being held indefinitely and without charges at the U.S. naval base in Cuba. The court's liberal justices were in the majority.

Justice Anthony Kennedy, writing for the court, said, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

Expect to hear the phrase "the Constitution is not a suicide pact" a lot over the next few days. Indeed, we have Fat Tony:

Scalia said the nation is "at war with radical Islamists" and that the court's decision "will make the war harder on us. It will almost certainly cause more Americans to be killed."

Yes, if we just do away with that pesty Constitution all would be fine.

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This Is What I've Been Saying

Put Hillary on the Supreme Court.

Obama could do worse and she'd probably be pretty darn good in a black robe.

Plus it would make wingnut heads explode.

So there's that.

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Revenge Of The Nuns

Remember those nuns who were prohibited from voting in Indiana on Tuesday? Well, their Sisters in Missouri are fighting back:

Nun of the Franciscan Sisters of Mary comments on Voter ID disenfranchisement

WHO: Missourians for Fair Elections

WHAT: Press Conference on the impact of legislation to
require government-issued photo ID to vote

WHEN: 1:00 PM, Thursday, May 8, 2008

WHERE: League of Women Voters, 8706 Manchester, Jefferson City, MO 63144

JEFFERSON CITY, MO – On Thursday, May 8, three Missouri voters who
lack government-issued photo IDs as well as Secretary of State Robin
Carnahan and community leaders will discuss the potential impacts of
legislation currently being pushed through the Missouri General
Assembly. The proposed legislation would make Missouri one of the
toughest states in the country for eligible citizens who want to vote
by requiring voters to present a government-issued photo ID at the
polls. If passed, these changes could be in place by the November
general election and could put the voting rights at risk for up to
240,000 registered Missouri voters.

"This may sound like a good idea at first," stated Sister Sandy
Schwartz of the Franciscan Sisters of Mary regarding voter ID
requirements, "but once you stop to think about who would really be
affected, this is going to keep a lot of our loved ones from being
able to vote." Yesterday in Indiana twelve nuns in their 80s and 90s
were turned away from the polls because they lacked the needed IDs to
vote. Sister Schwartz and others are concerned about the difficulties
the policy change would create for elderly Missouri nuns, as well as
other senior citizens, the poor, and minorities.

Sing it, Sisters!

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And So It Goes

No one could have predicted:

At least 10 retired nuns in South Bend, Ind., were barred from casting regular ballots in Tuesday's Indiana Democratic primary election because they lacked photo IDs required under a state law upheld last week by the U.S. Supreme Court.

[...]

Borkowski said that two of the nuns with whom he spoke ``were very frustrated'' and so upset that they refused to exercise their rights to cast provisional ballots. He said one of the nuns told him that many other elderly nuns living on four floors of the Congregation of the Sisters of the Holy Cross decided not to vote upon learning that their sisters had been turned away at the poll in their building.

Lauren McCallick, an 18-year-old freshman at St. Mary's College, also in South Bend, said she was forced to cast a provisional ballot because she could produce only a California driver's license and a college identification card.

Voter disenfranchisement: It's the law!

Thanks, Supremes.

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What's At Stake In November

St. John makes a promise:

Republican John McCain castigated Democrat Barack Obama for voting against John Roberts as Supreme Court chief justice in a speech about the kind of judges McCain would nominate.

McCain offered an olive branch to the Christian right in a speech planned for Tuesday at Wake Forest University. The far right has been deeply suspicious of McCain, the expected GOP presidential nominee, because he has clashed with its leaders and worked against them on issues like campaign finance reform.

McCain promised to appoint judges who, in the mold of Roberts and Supreme Court Justice Samuel Alito, are likely to limit the reach of the Roe v. Wade decision that legalized abortion.

Let's remember that the Roberts Court ruled that gender discrimination in pay is A-OK, that allowed non-scientific anti-choice boilerplate to determine a reproductive rights case, decided that certain classes of voters can be disenfranchised, and much, much more.

The next president will likely have the opportunity to appoint at least two justices. The country can't afford to have more Robertses, more Alitos, more Scalias, more Thomases.

Neither Hillary nor Obama may be liberals in any real sense but either is a damn sight better than McCain.

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We Know Which Way This Will Go

The Supremes look at Exxon's Valdez oil spill:

"So what can a corporation do to protect itself against punitive-damages awards such as this?" [Chief Justice John] Roberts asked in court.

The lawyer arguing for the Alaska fishermen affected by the spill, Jeffrey Fisher, had an idea. "Well," he said, "it can hire fit and competent people."

The rare sound of laughter rippled through the august chamber. The chief justice did not look amused.

[...]

Nineteen years after the Valdez ran aground in Prince William Sound and spilled 11 million gallons of oil, the 32,000 plaintiffs -- mostly fishermen, cannery workers and Native Alaskans -- have received no punitive damages from Exxon.

A jury awarded them $5 billion in punitive damages -- a record level, for a record disaster -- and an appeals court cut that in half. Now, the Supreme Court seems inclined to deal another insult to the victims (as many as a fifth of whom have already died) by cutting the award further.

I've little doubt that poor widdle ExxonMobil will have the judgment against it reduced if not thrown out completely.

I'm in the wrong line of work.

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Well, This Is Different

George is actually trying to stop an execution:

Texas wants President Bush to get out of the way of the state's plan to execute a Mexican for the brutal killing of two teenage girls.

Bush, who presided over 152 executions as governor of Texas, wants to halt the execution of Jose Ernesto Medellin in what has become a confusing test of presidential power that the Supreme Court ultimately will sort out.

But wait, it gets stranger:

The president wants to enforce a decision by the International Court of Justice that found the convictions of Medellin and 50 other Mexican-born prisoners violated their rights to legal help as outlined in the 1963 Vienna Convention.

As the AP dryly notes, “That is the same court Bush has since said he plans to ignore if it makes similar decisions affecting state criminal laws.”

Texas isn’t happy and has taken the case to the Supremes:

Ted Cruz, the Texas solicitor general, said the administration's position would "allow the president to set aside any state law the president believes is inconvenient to international comity."

The Supreme Court will hear arguments in the case Wednesday.

I’m no lawyer and thus totally unqualified to comment but I believe that treaty obligations trump state laws.

Still, George trying to stop an execution - regardless of the reason - is odd indeed.

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This Won't End Well

The Supremes are going to decide the constitutionality of voter ID laws.

My guess? In a 5-4 decision the court will uphold the laws. Then wherever they find it most advantageous the Repubs will find ways to make getting an ID as difficult as possible.

Oh, and this will be decided before the 2008 elections.

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Noticing A Trend

A NYT editorial takes a look at the Supreme Court:

The Roberts court’s resulting sharp shift to the right began to be strongly felt in this term. It was on display, most prominently, in the school desegregation ruling last week. The Warren court, and even the Rehnquist court of two years ago, would have upheld the integration plans that Seattle and Louisville, Ky., voluntarily adopted. But the Roberts court, on a 5-4 vote, struck them down, choosing to see the 14th Amendment’s equal-protection clause — which was adopted for the express purpose of integrating blacks more fully into society — as a tool for protecting white students from integration.

On campaign finance, the court handed a major victory to corporations and wealthy individuals...

Corporations also won repeatedly over consumers and small stockholders...

In a ruling that will enrich companies at the expense of consumers...

The flip side of the court’s boundless solicitude for the powerful was its often contemptuous attitude toward common folks looking for justice...

[...]

It has been decades since the most privileged members of society — corporations, the wealthy, white people who want to attend school with other whites — have had such a successful Supreme Court term. Society’s have-nots were not the only losers. The basic ideals of American justice lost as well.

Par for the course in Bushworld.

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Supreme Court Civil War

Jeffrey Toobin on CNN:

TOOBIN: Boy, Tony, 15 minutes ago the Supreme Court was at war with itself in a drama that is rarely seen inside that room. You had two justices basically shouting out, not literally, but talking about the very premises of what it means to be an American. That was what was at stake in the court today. And the drama and the anger and the passion was something that's rarely seen in that courtroom.

[...]

HARRIS: Do you predict the majority view of this is a decision that is going to be a setback for affirmative action in this country?

TOOBIN: Absolutely, absolutely. This is a decision that says school districts cannot use any racially -- racial factors to decide how to assign kids. This is a victory for conservatives. Justice Breyer used a phrase, "Never in the history of the court have so few done so much so quickly." And he was talking about Chief Justice Roberts and Justice [Samuel] Alito making this court a far more conservative institution in just one year. And at that phrase, "And never have so few done so much so quickly," both Justice Alito and Chief Justice Roberts looked over at Breyer and went, whoa, that's pretty personal by the standards of the Supreme Court. [Emphasis added.]

From AMERICAblog:

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This Is Not America

This is ten year old news but it's new to me. Did you know, thanks to the Supreme Court, you can be sentenced to prison time for criminal charges that you've been acquitted of?

Unbelievable.

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The Supreme Court Still Matters II

5-4

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The Supreme Court Still Matters

5-4

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The Supreme Court Matters

A bad day.

Thanks to the Senators that didn't even try to block Roberts and Alito.

Marty Lederman adds details.

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Judicial Activism!

The LATimes fronts a story about how what the Republicans can't get through legislation they're getting through the Supreme Court:

The Bush administration and corporate lobbyists long have sought sweeping "tort reform" to limit lawsuits and massive jury awards — without much success. But in the last year, they quietly have been winning much of what they've wanted on a case-by-case basis in the Supreme Court.

With a week to go in their term, the justices have handed down a dozen rulings that sharply limit the damages that can be won in lawsuits or make it harder to sue corporations.

I'm shocked - shocked, I tell you! - that Mitch McConnell and John Boehner aren't screaming about "legislating from the bench!" Why, they've not been able to pass legislation and here are some damned activist judges swanning in and making laws! And the justices aren't even elected!

None of these pro-business decisions came as a huge surprise. But lawyers who practice regularly before the high court say it is noteworthy that business has been winning so consistently.

It is "a very business-friendly court," said Beth S. Brinkmann, a Washington lawyer who served in the Clinton administration. The justices have made it harder to sue business on many fronts, she said.

Welcome to the new feudalism. Enjoy your stay.

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Just Us Kennedy

Dahlia Lithwick:

The key to comprehending the Supreme Court's ruling today in Gonzales v. Carhart upholding the federal partial-birth abortion ban is a mastery not of constitutional law but of a literary type. Justice Anthony Kennedy's majority opinion is less about the scope of abortion regulation than an announcement of an astonishing new test: Hereinafter, on the morally and legally thorny question of abortion, the proposed rule should be weighed against the gauzy sensitivities of that iconic literary creature: the Inconstant Female.

Kennedy invokes The Woman Who Changed Her Mind not once, but twice today. His opinion is a love song to all women who regret their abortions after the fact, and it is in the service of these women that he justifies upholding the ban. Today's holding is a strange reworking of Taming of the Shrew, with Kennedy playing an all-knowing Baptista to a nation of fickle Biancas.

[...]

It's hard to fathom why Kennedy has so much more sympathy for the women who changed their minds about abortions than for those who did not. His concern for Inconstant Females might be patronizing in any other jurist. Coming from him, it's brilliantly ironic. Kennedy is, after all, America's Hamlet. The man who famously worried that "sometimes you don't know if you're Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line," will long be remembered as the living incarnation of agony and indecision, And today he seamlessly rewrites his Stenberg dissent as a majority opinion that blasts his earlier Casey vote to its core.

I'm no psychologist but in light of today's Gonzales opinion one has to wonder: Is all of Kennedy's tender concern over those flip-flopping women really just some kind of weird misplaced justification for his flip-flopping self?

I love Dahlia Lithwick.

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What You Need To Know

Marty Lederman:

Back in July 2005, I posted to our "Supreme Court Nominations" subsite (now defunct) a list of precedents that were the most vulnerable in the wake of Justice O'Connor's retirement. The list is republished below. At the time, I wrote that the most important and most vulnerable of those precedents were in the areas of the Establishment Clause (especially the direct funding cases such as Mitchell v. Helms), affirmative action (and just watch what happens to Grutter later this Term), and abortion, where Stenberg v. Carhart was hanging by a thread. Today, the thread snapped, as a five-Justice majority upheld the federal "partial-birth abortion" prohibition.

In its decision today, the Court effectively overruled Stenberg's "undue burden" test for facial challenges to abortion-restriction statues (see pages 36-37 of the opinion).

Justice Ginsburg:

Ginsburg, in a lengthy statement, said "the Court's opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman's health." She said the federal ban "and the Court's defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court -- and with increasing comprehension of its centrality to women's lives. A decision of the character the Court makes today should not have staying power."

I would now expect a full-on challenge to Roe and given what I've been reading today, the reasoning behind this decision all but mandates the overturning of Roe.

The last word:

Roberta Combs, president of the Christian Coalition of America, said: "With today’s Supreme Court decision, it is just a matter of time before the infamous Roe v. Wade decision in 1973 will also be struck down by the court.”

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The Supreme Court Matters

Here we go:

The Supreme Court upheld the nationwide ban on a controversial abortion procedure Wednesday, handing abortion opponents the long-awaited victory they expected from a more conservative bench.

The 5-4 ruling said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman's constitutional right to an abortion.

[...]

The decision pitted the court's conservatives against its liberals, with President Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito, siding with the majority.

Justices Clarence Thomas and Antonin Scalia also were in the majority.

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Interesting And Scary

The Administration continues to try to turn itself into an unaccountable dictatorship. This time by arguing against freedom of religion:

On Wednesday, the U.S. Supreme Court will hear oral arguments in just such a case. Hein vs. Freedom From Religion Foundation is unlikely to make headlines, but it could deal a sharp blow to the wall of separation between church and state.

The plaintiffs are ordinary citizens who object to their federal tax dollars being used to fund the president's program for "faith-based and community initiatives." In particular, they claim that several conferences sponsored by the program were propaganda vehicles for religion and therefore violated the establishment clause of the 1st Amendment, which forbids government promotion of religion.

The government defendants — "Hein" is Jay F. Hein, director of the White House Office of Faith-Based and Community Initiatives — dispute the plaintiffs' claim about the conferences. But at this stage, the Bush administration is asking the court to throw the case out on grounds that ordinary taxpayers have no legal interest in how the executive branch spends public money.

[...]

Suppose, as the lower court suggested, the secretary of Homeland Security used general executive funds to build a mosque and hire an imam in the belief that such visible support for Islam would reduce the risk of Islamist terrorist attacks against the United States. Would this traducing of the establishment clause not allow taxpayers to sue?

[...]

Unfortunately, the Supreme Court rarely takes a case to affirm the decision from below. That, together with the recent shoring up of the court's conservative majority, strongly suggest that the administration's position will prevail, despite the threat it poses to the separation of church and state. If it does, everyone at the ball will take notice. But by that time, the party will be over.

This bears watching.

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Do-Nothing Congress?

How about a do-nothing Supreme Court?

On the Supreme Court’s color-coded master calendar, which was distributed months before the term began on the first Monday in October, Dec. 6 is marked in red to signify a day when the justices are scheduled to be on the bench, hearing arguments.

The courtroom, however, was empty on Wednesday, and for a simple reason: The court was out of cases. The question is, where have all the cases gone?

[...]

One theory is that the court is so closely divided that neither the liberals nor the conservatives want to risk granting a case in which, at the end of the day, they might not prevail. To grant a case takes four votes, which can be a heartbreaking distance from the five votes it takes to win. Scholars of the court call this risk-averse behavior “defensive denial.”

Perhaps, along with Congress, we should cut their pay until they start doing their frakking jobs.

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