Archive for the ‘Supreme Court’ Category

Silencing the Unions

January 11th, 2016 5 comments

The conservatives on the Supreme Court are finally taking a whack at finishing off unions. Were they only supportive of Republican causes, they’d be safe, but as general supporters of liberal politicians, they remain a target to be destroyed, as they have been since the 1980’s.

The court will hear a case, Friedrichs v. California Teachers Association, in which a group of school teachers object to paying union dues on the grounds that those dues will be used to support political causes they oppose. Naturally, the Wall Street Journal (behind paywall; open article can be accessed via Google News link) is positively gushing over the prospect of shutting down labor’s political speech:

Defending free speech has been a notable strength of the current Supreme Court, and on Monday the Justices hear a case that gives them a rare and splendid opportunity to repair damage to the First Amendment done by the Court itself.

In Friedrichs v. California Teachers Association, 10 public school teachers object to a California law that forces them to pay union fees that finance causes they oppose. For 39 years the Court has allowed such coercion thanks to an anomalous 1977 ruling in Abood v. Detroit Board of Education. Now is the time to overturn it.

If the court finds in favor of the teachers, it would effectively silence unions politically, leaving their counterparts—corporations—with virtually unchallenged voices in politics, heavily favoring the wealthy and removing what little collective voice remains for the working-class citizen.

The Journal cites Harris v. Quinn, a case that said that “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.” Of course, they ignore religious organizations using public funds to both proselytize and to make political statements. And they ignore lawmakers using public funds to force their own religious views on laws. That’s okay.

And naturally, there is no case the Supreme Court will hear which allows objections of individual stockholders to silence the corporate executives who spend corporate cash on political donations and messages that the shareholders oppose. No problems there.

The Journal also ignores the 2006 decision, Garcetti v. Ceballos, which specifically stated that employers may control the free-speech rights of individual workers:

When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. … Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.

Of course, the conservative side of the court has never allowed itself to be hobbled by little details like consistency. However, the above was written by Kennedy, who could make one of his pivotal stances against the hard-right four, Scalia, Thomas, Alito, and Roberts.

Only time will tell, but I am not overly hopeful: the court has shown great love of corporate power, and little love for anything that opposes it.

Categories: Law, Supreme Court Tags:


June 29th, 2012 15 comments

Wow. Roberts, not Kennedy. Who saw that coming?

American Thinker is already trying to rationalize it, but I betcha that Roberts will be vilified to no end by conservatives.

The interesting thing here: Roberts did not act as a liberal, but instead took a stand that would be called conservative, save for the fact that “mainstream” conservative has driven fully off the crazy cliff. One tweet by Matt Browner Hamlin noted by Andrew Sullivan:

I just can’t believe John Roberts ruled in favor of a policy cooked up by the Heritage Foundation

The Heritage Foundation, now firmly against the ACA, actually proposed the individual mandate a few decades ago.

So, while this shows that Scalia, Alito, and Thomas are partisan hacks, and says god knows what about Kennedy, I think the most we can take from this is that Roberts is probably not a political hack–or at least not consistently. We can fantasize that the Bush-appointed Chief Justice has taken a turn to the left, but that would be asking way too much–and considering that a conservative from 1990 would see this as reasonable…

Though, there is another way to see it: a conservative from the late 80’s or early 90’s almost is a liberal today. Not a “true” liberal, but as a matter of relative gauging compared to where the right wing has bounded off to….

Or, who knows, maybe the Thinker is right and this is just chair-switching of some sort. I don’t pretend to know.

And certainly, this is not the health care plan we should have, and hopefully it won’t take us 30 years to take the next step.

Still, I really would like to know what just happened.

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No Surprises Here

May 24th, 2010 3 comments

A self-proclaimed “ordinary citizen from Omaha, Nebraska,” horrified by President Obama’s “hard-left agenda,” has set up a right-wing tea-party lobbying group. Having worked for a right-wing think tank, she is “a fan of Rush Limbaugh” and is “intrigued by Glenn Beck” and listens to him “carefully.” By all measures, this person is about as hard-right-wing as you can get.

It should be no surprise, then, that she is the wife of Supreme Court justice Clarence Thomas. Justice Thomas recently represented the tie-breaking vote in a case (Citizens United v. Federal Election Commission) which allows organizations like his wife’s to spend unlimited amounts of corporate donations on political ads naming specific candidates without full disclosure of where the money came from. Naturally, he did not recuse himself.

Categories: Quick Notes, Supreme Court Tags:

Litmus Tests

April 22nd, 2010 Comments off

Come on, Obama… “Women’s rights” is a litmus test. Every president has litmus tests. It was even more stupid when Bush tried to claim he didn’t have litmus tests but required his justices to be strict constructionists (the ultimate mega-bundle mother of all litmus tests), but it’s not much less stupid when you try to claim you don’t have any yourself. Politically expedient, maybe–but you’re not fooling anyone.

GOP: We’re Being SOOOO Tolerant Here, Give Us a Nobel Prize or Something

July 13th, 2009 6 comments

Here’s the latest headline in the Sotomayor nomination:

GOP: Sotomayor must assure she can be neutral

Here’s the latest reflection considering the GOP’s stance on Bush nominations:

The GOP can go * * * * itself

Seriously. After eight years of Bush nominating and getting approved very young, white male hardcore right-wing strict constructionists, after the GOP insisting that the president gets to choose anyone he wants and the Democrats better not even THINK of screwing with that, the GOP does not get to now say that Obama’s nominee had better be nothing more than an inch left of center or else they’ll nuke her.

Here’s the deal: Obama just nominated someone so centrist that it makes the mildest Bush nominee look like he came from farther right than frickin’ Neptune. The GOP should be singing hosannahs that the Dems do not have either the vast extremism nor the innate sense of complete unfairness that Republicans use for their Sunday Best and have given them this gift of a non-liberal judge. But no, they still act all indignant, as if Sotomayor is Jane Fonda on Liberal Steroids and they can barely stand to allow this to go unscathed but MAYBE they’ll allow it if she behaves. And if the Democrats in the Senate weren’t such weak-kneed pushovers, the GOP threat would be entirely laughable, instead of just mildly humorous. Humorous in terms of, “ha ha, I didn’t know hypocrites could be so funny!”

How can flaming hypocrites make their past hypocrisies look mild? Stay tuned. In the meantime, Sotomayor will go to SCOTUS, no doubt. But seriously, Obama: next time, grow a pair, will ya?

The Dire Consequences of Ibuprofen

June 28th, 2009 Comments off

A high school assistant principle had a 13-year-old girl strip-searched for painkillers after a fellow student accused her of handing them out, and a search of her backpack and outer clothing produced nothing. The other student had been caught with one over-the-counter pill and four prescription-strength Ibuprofen pills, and accused her classmate of providing them to her. The accused girl was made to strip to her underwear in front of a female administrative assistant and a nurse, then pull out her bra and underpants, shaking them, to show there were no pills there.

In what most would call a “no-brainer,” the Supreme Court ruled (PDF) that this constituted an unreasonable search. In loco parentis or not, you don’t strip-search 13-year-old girls for pain medication on the strength of an accusation by another teen, especially when that teen may be trying to shift blame to escape harsher punishment. Since the search went so far as to expose the student’s breasts and pelvic area, the court ruled that it violated the Fourth Amendment protection of privacy. Although the pills found were prescription-strength, they were also common pain relievers and not a serious health threat–we’re talking Ibuprofen–not heroin, not even Oxycontin.

I might better understand this because I have served as a school administrator, albeit for a college, not a high school. But to order one of the female staff members to take a student to a private room and make the student strip solely on the strength of a few other students claiming that she had provided aspirin to them, against school rules or not, is so ludicrous as to defy belief. That it was “prescription strength” drugs, in this case, is not mitigating; Ibuprofen at 400 mg per tablet may be prescription strength, but you can get it over the counter at 200 mg and take two of them for the exact same effect. As I said, we’re talking about nothing more dangerous than aspirin here. You don’t make a 13-year-old girl strip to the point of even brief nudity on the claims of classmates who were facing punishment based on their testimony. If you want to control an incipient drug problem, there are other ways of doing it. If a strip search is truly necessary, then call in the police.

So the ruling was obvious–but not unanimous. It was 8 to 1. Guess who dissented? Yep. Clarence Thomas. He wrote:

The majority imposes a vague and amorphous standard on school administrators. It also grants judges sweeping authority to second-guess the measures that these officials take to maintain discipline in their schools and ensure the health and safety of the students in their charge.

It’s “vague and amorphous” to say that you shouldn’t strip search 13-year-old girls for aspirin? Really? I think that this is sufficiently over the line of “reasonable” as to be comfortably beyond “vague.” Don’t strip-search teenage girls if all that’s at stake is aspirin. How much more specific should it be? Souter was pretty clear:

The very fact of Savana’s pulling her underwear away from her body in the presence of the two officials who were able to see her necessarily exposed her breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings.

Got it? When you require a teenage girl to strip to that extent, you need far more pressing circumstances. The line to be crossed is “no nudity.” It is perhaps nebulous only in that it doesn’t specify how serious a situation has to be to allow for a strip search, but a good indicator would be that you have to call in the police. In my opinion, Souter doesn’t go far enough in restricting the degree of strip searches, but I suppose that he was simply being cautious.

As for “second-guessing school authorities,” that’s a specious claim. Second-guessing is, by definition, what the Supreme Court does. Thomas is effectively saying that school administrators should be allowed to act without review or oversight, a wholly unreasonable and intolerable alternative.

Thomas justifies the search first by establishing that a general search was warranted–something the majority did not dispute–but then uses fallacious contributory evidence to make the circumstances appear more dire, speaking of unrelated matters such as a razor blade on another student’s person and illnesses of students from taking drugs that were not as innocuous as the aspirin the student who was strip-searched was accused of providing. He then works up to his argument as to why the strip-search was justified:

Because the school officials searched in a location where the pills could have been hidden, the search was reasonable in scope under T. L. O.

If you define as “reasonable” simply by the standards of any location where the pills “could have been hidden,” then the absurd but logical conclusion would bring you to vaginal exams and stomach purging to see if the student used those locations to hide drugs in small baggies. Drugs can be hidden there, Q.E.D. Thomas is trying to eliminate a line which can be crossed, the line which the majority clearly saw.

Thomas claims that the majority overstepped their bounds; that when they claimed that a “greater level of particularized suspicion” would be necessary to allow for such an invasive search, they went too far. “There is no support for this contortion of the Fourth Amendment,” he wrote. Actually, there is: the word “reasonable.” It clearly allows for collective judgment to be used to decide what is and what is not allowable, based upon standards decided by common sense.

In short, Thomas did what he and his colleagues often do: ignore both the word and the spirit of the law to allow their own personal ideas of what should and shouldn’t be to supplant the actual law.

This is, in fact, the classic “legislating from the bench” that people like Thomas claim to hate so much. But people like Thomas don’t really hate legislating from the bench–they simply hate civil rights that offend their own conservative worldview. To be frank, I am not as much surprised that Thomas ruled this way as I am surprised that his conservative colleagues, especially Scalia, did not.

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Sotomayor and “Proper English”

June 23rd, 2009 1 comment

The right wing, especially people like Pat Buchanan, have been attacking Sonia Sotomayor in many ways, one in particular by suggesting that Sotomayor got her academic credentials via Affirmative Action when she did not in fact deserve them. Buchanan recently said this at a conference to rebuild conservative political power:

Judge Sotomayor is up there at school in New York, she gets a scholarship to Princeton, she’s graduated with all these big honors and awards they said she never won. What’s she doing there in the summer? They said her adviser told her to read children’s classics so she can learn English better. How do you graduate number one in Princeton if you’re in the summer and you’re reading Rumpelstiltskin and Snow White? [laughter]

In other attacks, Buchanan added the idea that Sotomayor had to study “basic grammar” as well. More has been said on the topic, of course, but that’s the essence: Sotomayor’s English was so poor that she had to read children’s books in order to get up to speed. How could her English be so bad and yet she’s graduating summa cum laude at Princeton? Must be Affirmative Action, Buchanan concludes. More evidence of the liberals supporting minorities by helping them get undeserved credentials just because of race.

Naturally, that’s not the reality. Here’s the snippet from the New York Times article upon which Buchanan and the others base their argument:

She spent summers reading children’s classics she had missed in a Spanish-speaking home and “re-teaching” herself to write “proper English” by reading elementary grammar books. Only with the outside help of a professor who served as her mentor did she catch up academically, ultimately graduating at the top of her class.

Is this true? Well, in Sotomayor’s own words:

“First I found that my vocabulary and writing skills were poor and I didn’t know anything about the classics. … So during my college summers, I retaught myself basic grammar, learned 10 new words a day and set up a program of reading all the books I had missed.”

A ha! Buchanan was right! Sotomayor was illiterate! Hmm, let’s see.

Sotomayor was born and raised in the Bronx, but during her formative language years (age 0-6) she was in primarily a Spanish-language environment; she only became “fluent” in English after her father’s death. But still, she grew up in the U.S., went to schools where English was the language of instruction. Here’s WikiPedia’s summary of her early education:

For grammar school, Sotomayor attended the parochial Blessed Sacrament School in Soundview, where she was valedictorian and had a near-perfect attendance record. Sotomayor passed the entrance tests for, then commuted to, the academically rigorous parochial Cardinal Spellman High School in the Bronx. … At Cardinal Spellman, Sotomayor was on the forensics team and was elected to the student government. She graduated as valedictorian in 1972.

What can we glean from this? Obviously, she was no academic slouch. Her language skills were also probably not so bad; you don’t get through all that without the ability to speak English fairly well.

So, how do we reconcile Sotomayor’s statements about poor language skills and re-learning basic grammar? The answer is easy: it’s all relative. When she entered Princeton, she found that she could no longer get away with small errors in grammar or less-than-perfect choices in vocabulary. When she says “poor vocabulary and writing skills,” she means “poor vocabulary and writing skills by the standards of Princeton academic requirements.” That’s a pretty significant distinction.

What Sotomayor referred to was not that she was unable to string together sentences like “see Dick and Jane run with Spot,” but that she sometimes made subtle errors in grammar and word choice which in normal language are excused, but which in demanding academic prose can cause some difficulty. Her reading of childhood classics was likely more to learn the flow and cadence of words; her vocabulary building to learn greater variety, not the basics; all of this to recognize and use the subtle distinctions rather than the gross ones. She described (pdf) her English not as simplistic, but rather as “stilted and overly complicated,” and was sorting out the subtle differences between terms such as “authority of dictatorship” and “dictatorial authority.” Hardly Dick-and-Jane-level stuff.

A lot of the left-wing criticism of Buchanan and others tends to focus on which books Sotomayor read–she read Huckleberry Finn, not Snow White, they point out–but miss the whole fact that the “re-learning basic grammar” was not about how her language was poor or admission standards lax, but instead was about how strenuous and demanding her new learning environment was. Sotomayor’s story was not one of remedial education, but of an incredibly difficult and top-notch college program in which Sotomayor excelled so much that she graduated at the top of her class.

Some conservatives might still try to attack Sotomayor for her language problems–even if she wasn’t learning how to write “See Dick and Jane” level material, she still made mistakes, right? How do you get to call yourself literate and yet still make errors that don’t even stand up to those pansy-ass liberal-elite college standards?

Well, it turns out that even the English-only crowds sometimes make an error here and there. Here’s Pat Buchanan standing under a banner at his organization’s conference:

Amer Cause Conf

Note the spelling of “conference” in the banner. And keep in mind that these folks are taking jabs at Sotomayor’s English and going on about how the U.S. should shun Spanish and maintain English as the official language.

I think some tolerance for a certain level or error-making is in order here, don’t you?

Quick Note on Sotomayor

May 29th, 2009 7 comments

If Bush had nominated someone as moderate as Sotomayor, I would have been very, very happy. Sotomayor is left-of-center, but by no means a flaming liberal. Bush, on the other hand, installed young, white, male conservatives with strong strict constructionist credentials. (Miers was not male, but otherwise matched the Bush mold.) Their votes since joining the court confirm their far-right expectations.

Not that conservatives are showing any signs of relief or acceptance for a moderate judge as opposed to an ardent liberal. Anyone who is not a flaming conservative will be mercilessly attacked.

Categories: Quick Notes, Supreme Court Tags:

Sotomayor, Etc.

May 28th, 2009 Comments off

Right-wingers are on a new rant: Sotomayor is a racist. This is the statement she made which they are objecting to:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.”

Sounds racist, right? Sexist as well! Latina women are wiser than white men? Racism! Sotomayor must withdraw!!

Except… the quote, of course, is completely different in context. The above quote is in the context of making a decision on sex discrimination cases. Is it racist to say that a Latina woman is more likely than not to better understand the realities of sexual harassment than a white male? Of course it’s not racist. It’s completely reasonable. Of course a woman will understand sexual harassment better than a man.

Sotomayor points out, correctly, that when the court was all white-male, issues regarding race and gender were not handled in an unbiased manner, and that adding people with more diverse life experience to the court could help correct that. And she’s perfectly correct.

Soon after the ‘controversial’ statement, Sotomayor continued:

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Note that she does not exempt herself from the dangers of judging unwisely outside her field of experience. A little later, she repeats that sentiment of self-caution, that her experience tints her perceptions just as much as a white male’s experience would tint his, and she must be careful to learn and understand:

I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations.

Boy, what an unreasonable, flaming racist she is!!!

It should be noted, by the way, that whenever Bush nominated an extremist non-white judge and Democrats opposed the nomination, Republicans went on a frenzy of calling Democrats “racist” even though their objections were clearly on political grounds alone. Similarly, when an extremist woman nominee was opposed, Democrats were sexist as well. In fact, when an extremist Bush nominee was white, Democrats were reverse racists. Essentially, Republicans scream “racist” pretty much all the time.

Why is it that whenever a judicial nominee is discussed–no matter which party’s president is nominating–somehow, the Democrats are always all racists?

Sotomayor, Ctd.

May 27th, 2009 Comments off

Republican Senator Jim Inhofe released this statement today:

“Of primary concern to me is whether or not Judge Sotomayor follows the proper role of judges and refrains from legislating from the bench. Some of her recent comments on this matter have given me cause for great concern. In the months ahead, it will be important for those of us in the U.S. Senate to weigh her qualifications and character as well as her ability to rule fairly without undue influence from her own personal race, gender, or political preferences.”

Let’s look at a few key parts of this statement.

Of primary concern to me is whether or not Judge Sotomayor follows the proper role of judges and refrains from legislating from the bench.

Keep in mind that “legislating from the bench” is a Republican code phrase meaning “making decisions that I don’t like.” Originally, the phrase was restricted to Roe v. Wade, which right-wingers often cite as the worst case of such judicial legislating. As I pointed out in the last post, however, conservative justices are the ones going wild legislating from the bench. In addition to Scalia on the Establishment Clause, you have the whole right wing of the court rewriting the meaning of the Second Amendment, at the very least relative to how all past Supreme Court decisions observed the amendment. In the re-writing, they did their fair share of Roe-style “legislating,” specifying what was or was not legal in terms of gun control. In short, Republicans are fine with “legislating from the bench,” it’s any decision that they disagree with that is unacceptable to them.

In the months ahead, it will be important for those of us in the U.S. Senate to weigh her qualifications and character…

What happened to the inviolable prerogative of the president to choose whomever he pleases for the court? Oh yeah, that was just for Bush. Well, at least until he tried to put Miers on the court.

…as well as her ability to rule fairly without undue influence from her own personal race, gender, or political preferences.

Two major points here. First, “without due influence from her own … political preferences.” Really? Shall we talk about Alito, Roberts, Thomas, and Scalia, then? None of them hold up to that standard, but I am quite certain that Inhofe would be delighted to vote for one of their political clones, especially if their political preferences played an undue influence on their rulings. Again, the only real right-wing concern here is politics.

But the very interesting statement is “without undue influence from her own personal race [and] gender.” If Sotomayor were a white male, do you think Inhofe would have mentioned either? Not a chance–which means that what Inhofe really means is that she cannot be capable of making any ruling that does not observe and respect preference to whites and men.

More to the point, keep in mind that conservatives who apply their religious beliefs to their lawmaking defend the practice by claiming that their religion shapes who they are, or that in a sense, it is who they are, and they cannot escape it–nor should they, they say. But if your (non-white) race or (non-male) gender should shape your official actions, that’s unacceptable. If Sotomayor were not Christian, you can bet whatever amount you’d like that Inhofe would have included “religion” to that list of things that Sotomayor should not allow to influence her decisions.

It is not that I completely disagree with everything he says, but rather the plainly hypocritical contrast between what Republicans deem acceptable from conservative nominees and liberal ones, in addition to the tones of racism and sexism involved.


May 27th, 2009 1 comment

Surprise! The right wing is now declaring that Sotomayor is “a liberal judicial activist of the first order”! Various sources have different ways of expressing it, but that’s the general tone. She’s liberal! And activist! Who’da guessed they’d come up with those arguments?

After the last several SCOTUS appointments from the right, representing about as right-wing you can possibly imagine without nominating Attila the Hun, conservatives don’t get to claim this without people snickering. Especially when it is the conservative Supreme Court justices who “legislate from the bench”–that is, they either strike down laws passed by Congress far more than liberal justices, or they simply ignore the law and instead proscribe whatever the hell they feel like, as in Scalia’s dissent to McCreary in which he uses legal violations as precedent to rewrite the establishment clause of the First Amendment.

Surely, the right wing has depleted the whole “most liberal” attack after having claimed that every Democratic presidential candidate is “the most liberal Democrat” around, and that every nominee is “the most liberal nominee” out of all candidates.

In short, all the arguments against Sotomayor amount to this: “She’s not conservative.” That’s virtually the only meaningful description of why the right wing will rail against her and claim that she is the Nth coming of the Liberal Satan.

And, of course, after the last eight years of Republicans claiming that the president gets to choose anyone and the Congress is required to rubber-stamp it, they don’t get to do much more than impotently rant. By their own standards.

Which, of course, they never follow themselves.