Posts Tagged ‘Supreme Court’

Among the many dreadful aspects of Clarence Thomas becoming a member of the US Supreme Court is that he succeeded Thurgood Marshall. Marshall founded and served as executive director of the NAACP Legal Defense and Educational Fund, arguing several cases before SCOTUS, including the landmark “Brown v. Board of Education, which held that racial segregation in public education is a violation of the Equal Protection Clause.”

Thomas, on the other hand, served as chair of the US Equal Employment Opportunity Commission and “halted the usual EEOC approach of filing class-action discrimination lawsuits, instead pursuing acts of individual discrimination,” which are much more difficult to prove. He had little judicial background when George H. W. Bush nominated him to the high court.

The confirmation hearings were reopened after “an FBI interview with lawyer Anita Hill was leaked… Hill, a black attorney, had worked for Thomas… She testified that Thomas had subjected her to comments of a sexual nature, which she felt constituted sexual harassment or at least ‘behavior that is unbefitting an individual who will be a member of the Court.'”

Thomas denied Hill’s allegations, and famously said: “From my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves… and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”

In the #MeToo era, The Boston Globe asked in 2018, Why is Clarence Thomas still on the Supreme Court? New York magazine suggests impeachment.

And the grounds wouldn’t just be over sexual harassment. Back in 2011, we learn that Thomas doesn’t just do unethical favors for wealthy right-wing donors — they also do expensive favors for him. Both he and his late colleague Antonin Scalia probably should have recused themselves in the toxic Citizens United case.

And this from 2013: “Common Cause uncovered that Virginia Thomas earned over $680,000 from the conservative think tank, Heritage Foundation, from 2003 to 2007. Justice Thomas failed to include it on his financial disclosure forms… Once he was caught, Thomas amended 13 years’ worth of disclosure reports to include details of his wife’s income.”

A couple yeas ago, an article from Oyez painted a picture of the justice: “Clarence Thomas is known for his quiet, stoic demeanor during oral arguments and his conservative viewpoint that challenges, if not surpasses, even Scalia’s originalism.

“While many justices use questions to show their opinion on an issue or communicate with the other justices as to their feelings on a case, Thomas remains silent… He has shown his opinions to lean farther right than any other justice on the bench today.”

Birthday is June 23

Watching RBG, a documentary about the Supreme Court Justice Ruth Bader Ginsberg, the parallels among her being an aspiring law student at Harvard and Columbia, the cases she took on as attorney, and her role on SCOTUS are quite striking.

She tended to be dismissed out of hand at Harvard, with her and the handful of other students being asked directly why they were taking spots that could have gone to a man. Decades later, Virginia Military Institute was essentially making the same case, but the argument was met with withering criticism by RBG.

This is a wonderful film, helped by some amazing archival video showing the development of the great love story between Ruth and Marty Ginsberg, who were married from 1954 until his death in 2010. He was gregarious, while he was quiet, goofy when she was serious. Ruth is a notoriously awful cook, while Marty had kitchen talent.

Moreover, he recognized her great legal skills. Arthur Miller, their great friend, said that Marty was the greatest tax attorney in New York City, yet he left his job to follow his wife when she was appointed to the federal bench by Jimmy Carter.

During her confirmation hearing for the Supreme Court in 1993, she felt that many of the men on the Senate Judiciary Committee didn’t “get” it, didn’t understand the effect of being dismissed out of hand. Yet she was confirmed 96-3 after Bill Clinton recommended her, recognizing her stellar mind.

As she became more the liberal voice of dissent, social media dubbed her The Notorious RBG with a Tumblr page, pictures on Pinterest, T-shirts and a book describing the an unlikely recent obsession in our culture: an octogenarian Supreme Court justice.

Ruth has learned to embrace the phenomenon. She laughs at Kate McKinnon’s portrayal of her on Saturday Night Live while acknowledging that it is nothing like her.

Meanwhile, she is passing down wisdom to her grandchildren, including one granddaughter who was in a class of lawyers that’s about 50% female.

The film, which my wife and I saw at the Spectrum Theatre in Albany, is touching, and educational, and, based on my laughter at the latter sections, occasionally quite funny.

I finished reading The Quartet: Orchestrating the Second American Revolution, 1783-1789 by Joseph J. Ellis (2015). The title refers to George Washington, James Madison, Alexander Hamilton, and John Jay. More about the book in the future.

In reading the footnotes – what a nerd! -one jumped out at me. “…for judicial devotees of the ‘original intent’ doctrine” – what DID the Founders mean? – “Madison’s motives” in crafting what became the Second Amendment to the Constitution “are clear beyond any doubt.”

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.

“To wit, the right to bear arms derived from the needs to make state militias the core pillar of national defense” rather than a professional, federal army, which skeptics of federalism feared as threats to small-r republican values. .

“To avoid reaching that conclusion, the [Supreme Court] majority opinion in Heller [v. District of Columbia, 2008], written by Justice Antonin Scalia, is an elegant example of legalistic legerdemain masquerading as erudition. Madison is rolling over in his grave.”

Those not familiar with the fancy noun, it means 1. sleight of hand 2. trickery; deception 3. any artful trick.

In other words, the suggestion that Scalia’s argument is originalist is pure hokum. The Supreme Court had made only a couple rulings over two centuries on that amendment and, it would seem, got it wrong the second time.

In making this ruling, SCOTUS has empowered folks, including some in the powerful National Rifle Association, to argue that ANY limitation on gun ownership is unconstitutional. If the First Amendment can be proscribed – no yelling “fire” in a crowded theater unless there are actually flames – surely the Second can be also.

My wife and I were watching NBC Nightly News on March 24, the day of March for Our Lives rallies all over the world. One of the early stories was Museums across the nation work to archive mementos of grief left after shootings. There is actually a protocol for collecting those items left after mass murders! “Jeff Schwartz of the Parkland [Florida] Historical Society is relying on advice from… curators across the country — from Columbine, Colorado, to Charleston, South Carolina — who have all faced such situations.” We both wept.

So I’m not all that concerned about the “crass ageism” of some of the survivors. The Parkland kids, as of March 24, had been in the media spotlight 39 days, still grieving. I cut them a LOT of slack. “To the leaders, skeptics and cynics who told us to sit down, stay silent and wait your turn, welcome to the revolution,” Marjory Stoneman Douglas student Cameron Kasky told the throngs in DC. “Either represent the people or get out. Stand for us or beware.”

I don’t know what the change in the gun culture will be, but I remain cautiously optimistic, because I have to be.

From The Doors:
The old get old
And the young get stronger
May take a week
And it may take longer
They got the guns
But we got the numbers
Gonna win, yeah
We’re takin’ over
Come on!

A good friend of mine asked me to try to find an interview with Antonin Scalia. The late Supreme Court justice talked about a “dead Constitution,” arguing that people ONLY have rights that are spelled out in the document or by the formal amendment process.

My friend recalls him saying that women, or blacks, had no inherent rights until they could convince sufficient White Men to give them rights thru the amendment process.

I discovered that he laid out his “originalist” views many times. In 2005, he delivered one of his two most essential speeches, Constitutional Interpretation the Old Fashioned Way:

Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment.

Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that’s not how the American people thought in 1920.

In 2008, Scalia vigorously defended a ‘Dead’ Constitution. As his 2016 New York Times obit noted:

“By choosing the appeals court judge and former law professor, Reagan believed that his nominee would become a… man who would unite a coalition of like-minded justices… But from the beginning, Justice Scalia defied all expectations. He eagerly participated in questioning from the bench during oral arguments when new justices traditionally held back. He became an outspoken, witty and acerbic writer and speaker, who was deified or vilified by people on opposite sides of the political divide.”

This is the first Monday of October, the traditional opening of the Supreme Court’s term. Scalia has been replaced by Obama nominee Merrick Garland Trump appointee Neil M. Gorsuch.

pledge of allegianceSometimes, you need to tell a story so you can tell another story. This is one of those times.

Back in the fall of 1968 (I believe) , I was a sophomore at Binghamton (NY) Central High School. This was, of course, a period of a good deal of strife across the country. The war in Vietnam and civil rights movement were prominently on my mind in the months after the assassination of Martin Luther King, Jr. in April. I read a lot of King after his death, most notably his speeches in April 1967 opposing the Vietnam war. Also in 1967, Muhammad Ali was stripped of his heavyweight boxing title for his refusal to be drafted into the armed service.

Both Ali and King evoked race in stating their positions. Read the rest of this entry »

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