As the new ranking Republican member of the Senate Judiciary Committee, will Sen. Jeff Sessions (in photo), R-Ala., be tempted to settle some old scores in the process of dealing with President Obama’s first nomination to the U.S. Supreme Court? Sessions saw his own nomination to the federal bench by President Reagan go down in committee 23 years ago. In the process, reported the Washington Post, “a career Justice Department lawyer testified that Sessions had once called the NAACP an ‘un-American’ group, while another raised issues about remarks Sessions made about the Ku Klux Klan,” and Sen. Edward Kennedy, D-Mass., called Sessions “a throwback to a shameful era.” Sessions told Fox News that he let Obama know the Republicans on the committee would treat any nominee “with respect and give him or her a fair hearing.”
It appears that President Obama will make his first Supreme Court nomination later this year, as Justice David Souter reportedly plans to retire. The retirement and appointment are unlikely to change the ideological makeup on the court, though you never can tell. A Tribune Media Services article noted:
“Souter’s career will go down in history as one of many justices who proved to be entirely different than what was forecast. When nominated by President George H.W. Bush, he was called a conservative who would vote on the right. John Sununu, Bush’s chief of staff, referred to him as a ‘home run for conservatives.’
“But soon after taking his seat in 1990, it became clear that the White House did not really know its own nominee. In 1992, Souter cast a key vote with Justices Sandra Day O’Connor and Anthony Kennedy to preserve Roe v. Wade and the right to abortion nationwide. And in the years afterward, he voted regularly with the court’s liberal bloc.”
Calling it “Kumbaya day at the Supreme Court,” a Legal Times blog noted that the court handed down five signed opinions Monday without a single dissent – “a rare alignment for this or any Supreme Court.” Plus, 10 of the 15 signed opinions of the court so far this term have been unanimous, serving Chief Justice John Roberts’ goal of unanimity. Where can Congress get some of that?
The publication Legal Times noted that Monday’s U.S. Supreme Court hearing in Kansas v. Colorado was the “first time in recent memory that two state attorneys general” argued against each other before the high court. The face-off between Kansas’ Stephen Six and Colorado’s John Suthers also drew attention for an unusual faux pas. During dry questioning about the expert witness fees in the states’ long-running water lawsuit, Suthers referred to Justice David Souter as “Justice Ginsberg,” meaning Ruth Bader Ginsburg (who sits next to him on the bench), to which Souter replied, “I’m greatly flattered” and “You’re not the first to have done that.” Usually, attorneys’ mix-ups have involved Justices Antonin Scalia and Samuel Alito or, in the past, Ginsburg and former Justice Sandra Day O’Connor.
The U.S. Supreme Court is considering a case today on whether Pleasant Grove City, Utah, violated free speech rights and the Establishment Clause of the Constitution. The city allowed a national group to place a Ten Commandments display in a city park but then denied another religious group from placing its own historical display. The 10th U.S. Circuit Court of Appeals in Denver ruled that the city was free to ban all displays if it wanted to, but that once it decided to allow the Ten Commandments it had no right to bar the other display. Do you agree?
The debate about whether gun ownership really is a right protected by the U.S. Constitution was finally settled today. The Supreme Court overturned a 32-year-old ban on handguns in Washington, D.C., and in doing so judged that the Second Amendment guarantees an individual right to own guns that isn’t tied to “a well-regulated militia.
“The decision is big, though how far-reaching is still unclear. The National Rifle Association plans to challenge gun control laws in other cities. Some people are concerned that the ruling could lead to the removal of other gun restrictions, though Justice Antonin Scalia said the ruling shouldn’t “cast doubt on long-standing prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”
The U.S. Supreme Court ruled 5-4 today that it is unconstitutional to sentence someone to death for raping a child if the victim was not killed. The majority said that imposing the death penalty violates the Eighth Amendment’s ban on cruel and unusual punishment, because the death penalty is disproportional punishment for the crime, as heinous as child rape is. The majority also cited “the evolving standards of decency that mark the progress of a maturing society,†which drives constitutional originalists nuts. In 2002, the court blocked the execution of mentally retarded defendants, and in 2005 it banned the execution of people for crimes they committed before they were 18.
“It shouldn’t be necessary for the Supreme Court to tell the president that he can’t have people taken into custody, spirited to a remote prison camp and held indefinitely, with no legal right to argue that they’ve been unjustly imprisoned – not even on grounds of mistaken identity,” columnist Eugene Robinson wrote about the court’s Guantanamo Bay detainee decision. “But the president in question is, sigh, George W. Bush, who has taken a chainsaw to the rule of law with the same manic gusto he displays while clearing brush at his Texas ranch.”
But a Wall Street Journal editorial complained that the court had declared judicial supremacy over Congress and the White House. “Justice (Anthony) Kennedy’s opinion is remarkable in its sweeping disregard for the decisions of both political branches,” the editorial said. “In a pair of 2006 laws – the Detainee Treatment Act and the Military Commissions Act – Congress and the president had worked out painstaking and good-faith rules for handling enemy combatants during wartime.”
Instead of asking Hillary Clinton to be vice president, Barack Obama should promise to appoint her to the U.S. Supreme Court, wrote James Andrew Miller. “If Obama were to promise Clinton the first court vacancy, her supporters would actually have a stronger incentive to support him for president than they would if she were going to be vice president,” he wrote. “Given the Supreme Court’s delicate liberal-conservative balance, she would play a major role in charting the country’s future; there is no guarantee that a Clinton vice presidency would achieve such importance.” But how is Clinton qualified to be a high court justice? And wouldn’t a promise to appoint her be just as motivating to the GOP base?
Sen. John McCain has made it clear that he’ll be very socially conservative on judicial appointments. How socially conservative? He’s named Sen. Sam Brownback, R-Kan., co-chairman of his Justice Advisory Committee.
Brownback, remember, thinks abortion should be illegal in all circumstances, including cases of incest, rape and when the life of the mother is at risk.
This might give pause to Democratic voters thinking of supporting McCain if Hillary Clinton loses the nomination.
Mildred Loving died last week. She and her late husband, Richard, were at the center of a 1967 U.S. Supreme Court ruling that struck down laws forbidding interracial marriage in some 17 states.
Last year, on the 40th anniversary of the decision, she reflected eloquently on the case. An excerpt:
“My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.
“Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the ‘wrong kind of person’ for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.
“I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.”
Chief Justice John Roberts wasn’t entirely serious in his talk last week to a packed house at the University of Kansas. Asking his audience to ponder life without the Louisiana Purchase, which turned 205 years old this week, he said: “Imagine a Kansas cookout with berets instead of ball caps, beef bourguignonne instead of barbecue and fans yelling ‘Vive les Jayhawks.’æâ€
Then there was this: “I find that when I tell lawyer jokes to a mixed audience, the lawyers don’t think they’re funny and the nonlawyers don’t think they’re jokes.â€
It’s unwise to place too much predictive value on the questions that U.S. Supreme Court justices ask during oral arguments; sometimes they are playing devil’s advocate rather than expressing their own leanings. Still, several justices clearly were skeptical Tuesday of the constitutionality of a Washington, D.C., ban on handguns. “In my view, (the Second Amendment is) saying there is a general right to bear arms, quite without reference to a militia,†said Justice Anthony Kennedy, a key swing vote. If a majority agrees, that would be a historic shift from past court interpretations and would open up challenges to other gun laws.
Associated Press recently noted that it’s been two years and more than 140 cases since U.S. Supreme Court Justice Clarence Thomas asked a question during the court’s oral arguments. “If I think a question will help me decide a case, then I’ll ask that question,†he said in a C-SPAN interview last fall. “Otherwise, it’s not worth asking because it detracts from my job.†True, some of his colleagues can be chatty to a fault, but isn’t an inquiring mind essential to a justice’s job, and to justice?
It’s extraordinary enough that a sitting U.S. Supreme Court justice would express any view on such a timely legal issue as torture, more so because of what Justice Antonin Scalia told the BBC about what he called “so-called†torture — that it’s unconstitutional only as punishment, not as an interrogation tool.
“Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?†Scalia asked.
“It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be? And how severe can the infliction of pain be?â€
As a letter writer wonders in today’s Reader Views: “If it is OK to torture for the sake of obtaining information, how long will it be before the local police begin using this tool?â€
Sen. Sam Brownback has been offering crowds six reasons a Republican needs to win the presidency: the justices on the U.S. Supreme Court who are older than 70. When he delivered the line to a Topeka caucus crowd Saturday, he added: “If Hillary Clinton or Barack Obama are elected in the fall — how about a few more boos! — what direction do you think they’re going to take the Supreme Court? It’s going to a more leftist court.â€
The guy Brownback thinks can best fill any vacancies on the high court — with Brownback’s counsel, of course — is John McCain.
Given that McCain would be 72 when elected and sworn in, though, Brownback should exercise caution when suggesting being over 70 puts you in God’s waiting room.
Can bloggers name the six justices Brownback is talking about? (John Paul Stevens is 87. Ruth Bader Ginsburg is 74. Anthony Kennedy and Antonin Scalia are 71. And Brownback is rushing Stephen Breyer and David Souter, who turn 70 in August and in 2009, respectively.)
As U.S. Supreme Court Justice Antonin Scalia said during a hearing on Kentucky’s lethal injection procedure, “there is no painless requirement†in the Constitution regarding punishment for one’s crimes. But surely the justices heard enough testimony Monday to conclude that the three-drug execution protocol can be cruel, something that is prohibited in the Constitution. As Justice John Paul Stevens said, “I’m terribly troubled by the fact that the second drug is what seems to cause all the risk of excruciating pain, and seems to be almost totally unnecessary.†If a single barbiturate can cause death painlessly, why hold out for the three-drug method? Scalia suggested that sending the case back for more study would cause “a national cessation of executions†for years. But the court should favor what’s constitutional over what will expedite executions.
The U.S. Supreme Court declined to take a case challenging Project 100%, a San Diego program that regularly sends deputies out to search all nooks and crannies of houses belonging to welfare applicants, without warrant or suspicion. Should a family or individual resist the search, they can be denied benefits.
The Supreme Court had previously ruled that home visits to verify eligibility for benefits are not considered searches, because they aren’t part of criminal investigation. But the program still shows disregard for the rights of the poor and brushes aside the Fourth Amendment.
Posted by Kristin Mehler
The U.S. Supreme Court is deciding whether to take up a case that could have a far-reaching impact on gun rights and laws. At issue is the long-debated, awkwardly structured sentence of the Second Amendment to the Constitution: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.â€
Does this guarantee an individual’s right to bear arms or just a collective militia’s right?
That’s never been settled by any previous high court, and if the justices decide to take it up (they discussed the case today but haven’t issued a decision whether to accept it), it will be a closely watched and significant battle in the culture wars.
Posted by Randy Scholfield
In his new memoir, Supreme Court Justice Clarence Thomas calls Anita Hill "my most traitorous adversary," rekindling debate about Hill’s 1991 sexual harassment allegations against Thomas. He claims Hill was part of a plot by "left-wing zealots" to block his confirmation because of his abortion views.
And on CBS’ "60 Minutes" Sunday, Thomas claimed that Hill "was not the demure, religious, conservative person that they portrayed."
But Thomas isn’t likely to have the last word on the subject. Hill responded in a New York Times commentary this week, saying, "I will not stand by silently and allow him, in his anger, to reinvent me."
She went on: "Regrettably, since 1991 I have repeatedly seen this kind of character attack on women and men who complain of harassment and discrimination in the workplace."
Meanwhile, Washington Post columnist Eugene Robinson arguesthat Thomas is one of the more cogent arguments against affirmative action.
Posted by Randy Scholfield
In 2007, a time of terrorism and identity theft, no one should be able to vote without showing a photo identification card. That only makes sense, right? But some voting rights activists persuasively argue that because there are costs associated with acquiring a photo ID, such a mandate is an unconstitutional poll tax that disenfranchises voters. There is enough confusion about the issue in state courts around the country that it comes as a relief that the U.S. Supreme Court has agreed to hear a case on Indiana’s voter ID law. Given the leanings of the Roberts court, some voter ID opponents aren’t hopeful that justices will see things their way, but the court’s consideration is warranted.
Posted by Rhonda Holman
A Washington Post article made a big deal about how nearly a third of the public thinks the U.S. Supreme Court is too far to the right, according to a new poll. But should that be surprising? What percentage of the U.S. population is liberal or leans to the left? Wouldn’t they think the court is too liberal, especially after the appointments of John Roberts and Samuel Alito. Meanwhile, about half the public thinks the court is generally balanced in its decisions.
Posted by Phillip Brownlee
The U.S. Supreme Court made it clear to the nation’s public schoolchildren Monday that their limited First Amendment protections don’t apply to self-expression that appears to be pro-drug. The justices ruled 5-4 against the Alaska kid suspended from high school in 2002 for unfurling a 14-foot-long banner reading “Bong Hits 4 Jesus” at a school-sanctioned event. We shouldn’t read too much into the decision, just as the principal probably shouldn’t have read so much into a sign the kid claimed he meant as a joke. (Then again, that kid, now 23, pleaded guilty to a drug charge in Texas in 2003.) But it’s hard not to wonder if this outcome would have been different if the justices’ average age was younger than 67.
Posted by Rhonda Holman
What Mr. Bumble says in Charles Dickens’ "Oliver Twist" also applies to the U.S. Supreme Court’s rulingTuesday on workplace discrimination: "If the law supposes that, the law is a ass — a idiot."
The conservative majority ruled that the law only allows federal claims of pay discrimination if employees file a formal complaint with a federal agency within 180 days after their pay was set. But as dissenting Justice Ruth Bader Ginsburg noted, employees often don’t know until well after that deadline that their pay was unfair, given the confidentiality of salaries.
That’s what happened to the plaintiff in this particular case, who learned late in her nearly 20-year career — via an anonymous e-mail — that she received dramatically less pay than the 16 men who had held the same position at a Goodyear Tire plant in Alabama.
If that hard deadline is really what the law requires, then Congress needs to change the law.
Posted by Phillip Brownlee
The “Bong hits 4 Jesus” case made it to the U.S. Supreme Court this month. Now another First Amendment case is in the news, as a federal judge in Philadelphia reversed a 1998 law that made it a crime for commercial Web sites to let children under 17 access “harmful” material. Judge Lowell Reed Jr. ruled that First Amendment rights shouldn’t be stifled for the protection of minors.
The decision puts the responsibility mostly on parents for keeping harmful online material away from children by using such things as Internet filters.
Posted by Ross Stewart
