The Supremes Swing to the Right

We’re The Supremes!

The Supreme Court handed down their last decisions dealing crippling blows to the reproductive rights of women and labor unions. Liberals are taking some small comfort in a blistering 35-page dissent by Justice Ginsburg’s but the reasoning of the losing minority of a Supreme Court decision matters only for a day or so and then it belongs to the legal scholars and history books.

The Hobby Lobby case got all the ink and headlines because it’s a horrible slap at women and their reproductive rights, but the conservative majority stuck it to labor unions too. If these two traditionally Democratic voting blocs still want to sit on their hands (and wallets) after the gut punches Roberts and company handed them, they deserve whatever dark plans the Republicans have in store in for both of them should they retake the Senate and hold the House.

While today’s pair of horrible decisions might seem like distinct issues, in fact they are both part of a larger war on women and workers.

The absurdity of the Hobby Lobby decision (only contraceptives are exempted for religious beliefs because of sluts) is obviously part of the Republican war on women, but it is also very much a war on the poor. An IUD costs about a month’s worth of wages at the minimum wage. If an executive can’t get birth control because her employer gets too hot and bothered thinking of her having sexy time, she can afford it on her own. A Hobby Lobby floor worker? Probably not. For women workers at closely held corporations, this decision will be devastating.

The Harris case is specifically about home care workers in Illinois. Who are home care workers? Women. Poor women. Lots of African-Americans, lots of Latinos, lots of undocumented workers. Home care workers are a major emphasis for SEIU right now; a close friend of mine has spent over a decade on a campaign to organize them in one city alone. Harris threatens all of this. But moreover, it shows how little Alito and the boys care about rights for women wherever they are. It’s hardly coincidental that this case comes down the same day as the contraception mandate. The Court evidently believes that the home is not a workplace, but of course it is a workplace, especially if someone is getting paid to do work. That it is women working in the home, as it has always been, just makes it easier for conservatives to devalue that work.

Of course, it’s about more than just working women and it opens the door for Alito and Roberts’ continued desire to mandate the New Gilded Age, so no doubt we will see new challenges to public sector unionism that will probably reach the Court in 2016 or maybe 2017 at the latest. I am not a legal expert, but my guess as to why Abood wasn’t overturned entirely is that there wasn’t 5 votes for it yet.

Regardless, both of today’s decisions are very much about keeping working women without power both on the job and at home.

Ruth Bader Ginsburg, U.S. Supreme Court justice.

“What? Me Retire?” (Photo credit: Wikipedia)

Also, when we hear in 2016 that both parties are the same because of [insert pet issue here] and therefore vote for vanity third party candidate, let us remember this day and these decisions. If you think Strip Search Sammy Alito and Ruth Bader Ginsburg are the same, you might want to rethink your positions.


What matters most and in fact the only thing that matters to those disappointed, dismayed and disgusted with how the Court came down in these cases is Justice William Brennan‘s Rule of Five where Brennan would hold up five fingers to his clerks and say, ”Five votes can do anything around here.”

Brennan was a prophet and the Roberts Court is the proof of it.

From 1801 to 1940, less than 2 percent of the Supreme Court’s total rulings were resolved by 5-to-4 decisions. Since then, more than 16 percent of the Court’s rulings have been decided by “minimum-winning coalitions.” In the two most recent Courts, more than a fifth of all rulings were decided by 5-to-4 votes.

Scholars consider these narrow decisions the most political. Research indicates that 5-to-4 rulings are the most likely to be overturned by later Courts. They carry the same legal authority as more unanimous opinions — but not the same moral authority. In this vein, the one branch of government designed to be above partisanship echoes the rise in hyperpartisanship seen throughout Washington.

The Roberts Court has decided more cases by a 5-to-4 ruling (about 21.5 percent) than any Court before it, though only by a narrow margin. The previous Court, led by William Rehnquist, decided 20.5 percent of its cases by this minimum coalition. That rate, however, represents roughly twice the share of 5-to-4 rulings in the Stone Court, during World War II. And the Stone Court had more than three times the rate of 5-to-4 decisions of any Court prior.

Roberts noticed the trend early in his term. “I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions,” Roberts told The New Republic’s Jeffrey Rosen in 2006. “I think the Court is ripe for a similar refocus on functioning as an institution, because if it doesn’t, it’s going to lose its credibility and legitimacy as an institution.”

Justice Ginsburg is 81. Stephen Breyer is 75. With the Court’s term over, the speculation will begin again will either one retire while President Obama and a Democratic majority are still in power? It’s doubtful for multiple reasons.

Neither Ginsburg or Breyer’s departure tips the Court’s ideological balance. But what if Antonin Scalia (78) or Clarence Thomas (66) were to get a sudden itch to go fishing’ or spend more time with their families? Or just leave the Supreme Court to try out for The View?

Okay. It’s not gonna happen. Scalia and Thomas will announce they’re secret lovers before ever they allow Obama to appoint their replacements.

But even if one of the Justices were to suffer an untimely demise, there’s no way a Republican-controlled Senate would allow Obama to tip the axis of power of the Court to the liberal minority.

This is the current membership of the Senate Judiciary Committee. Do you think there is anyone Obama could nominate Al Franken and Ted Cruz would both vote for?

As far as Brennan’s Rule of Five goes this is a battle the Left lost years ago and it may take many years before they begin to win any.

But the last people I want to hear from are the smug elitists and professional cynics who say “there’s no difference between the Democrats and Republicans.” Yeah, sure. Look at how the justices selected by Democratic and Republican presidents voted and tell me that one again.

Don’t tell me you’re appalled (or even surprised) by the Supreme Court’s conservative majority deciding corporations have more rights than women. Tell me what you’re going to DO about it. The first thing is to vote and keep the Senate in Democratic control. That is, unless you want Senate Majority Leader Mitch McConnell telling President Obama whom he will allow to sit on the Supreme Court when a vacancy opens up.

"Me?  And justice?  Now THAT'S funny!'

“Me? And justice? Now THAT’S funny!’

Expect A Week of Joy and Pain from the Supremes.

We rule!

We rule!

We tend to forget how much the rulings of the U.S. Supreme Court have on the lives of millions of Americans until they remind us all and this is going to be one such time.

This week the Court will hand down decisions on several cases of vital importance to the Black and gay community and depending on how they come down the rulings are likely to cause celebration in one community, consternation in the other and further resentment between the two groups.

Within days, the Supreme Court is expected to issue a series of decisions that could transform three fundamental social institutions: marriage, education and voting.

 The extraordinary run of blockbuster rulings due in the space of a single week will also reshape the meaning of legal equality and help define for decades to come one of the Constitution’s grandest commands: “the equal protection of the laws.”

If those words require only equal treatment from the government, the rulings are likely to be a mixed bag that will delight and disappoint liberals and conservatives in equal measure. Under that approach, same-sex couples who want to marry would be better off at the end of the term, while blacks and Hispanics could find it harder to get into college and to vote.

But a tension runs through the cases, one based on different conceptions of equality. Some justices are committed to formal equality. Others say the Constitution requires a more dynamic kind of equality, one that takes account of the weight of history and of modern disparities.

The four major cases yet to be decided concern same-sex marriage, affirmative action in higher education and the fate of the Voting Rights Act of 1965, which places special burdens on states with a history of racial discrimination.

Aw man, voting rights is SO 1965….

However the majority of the Court rules will delight conservatives and infuriate liberals or delight liberals and infuriate conservatives.   There may be  a little something for everyone this week.

You should definitely expect if the Defense of Marriage Act (DOMA) and California’s Proposition 8 are kicked to the curb (yay) but affirmative action is further weakened and the Voting Rights Act of 1965 is gutted, in the aftermath there will be a furious firestorm of stories and commentaries playing up the “gays vs. Blacks” schism and how one group’s interests are being advanced while the other is being rolled back.

That is simplistic as well as flat-out wrong.  Marriage is not civil rights is not education.  Yet while the parts do not equal a whole, the perception that the Court favors one side’s interests over another will inevitably come up no matter how they rules.  Between the antipathy of the conservative wing of John Roberts, Samuel Alito, Anthony Scalia and Clarence Thomas and swing vote Anthony Kennedy‘s indifference to civil rights it is almost a foregone conclusion the Court is going to serve up a big ol’ crap sandwich for the supporters of affirmative action and voting rights.

It isn’t that there will be any connection between the separate issues of marriage equality and protecting voting rights.   There isn’t and the Supremes don’t do “one for  you and one for me. ”   The Blame Game  will fall on the collective heads of the gay community because invariably some commentators will  designate them as  “winners” in DOMA and Prop. 8 are overturned  and  Blacks will be deemed “losers” if the issues of greatest concern to them are severely curtailed.   There  already exists resentment from some Blacks  over how the gay rights movement has appropriated the tactics and rhetoric of the civil rights movement for their own (and why not? It’s been proven effective and Gandhi never patented it to stop Martin Luther King for giving them an Americanized makeover).

Trust me when I say there will always be those who desire to keep tensions high between the Black and gay communities for their own reasons.  Reasons that include homophobia or racism.

I expect this week is going to be like the old R’n’B song: “Joy and Pain.”

The news channels will serve up team of their legal “experts” to identify the various winners and losers.   That’s fine if you want that sort of snap ESPN style analysis, but I don’t get much from watching Jeffery Toobin or Alan Dershowitz blathering about what the Justices really meant.   You don’t have to be an attorney or a pompous talking head to understand what is going on with the Supremes.  The SCOTUS Blog not only provides  live reporting of the Court’s rulings, it does so in (mostly) plain English

For a layman who has always been fascinated by the workings of the Supreme Court,  I appreciate that.   The expected screams of joy from one side and groans of anguish from the other will need no such translation.

The money isn’t as big as the Super Bowl but the stakes inside this building are a lot higher.

Should She Stay or Should She Go?

Liberals welcomed Ginsburg’s arrival on the Court but some worry she’s stayed too long.

The legal legacy of Ruth Bader Ginsburg may hinge on two  “20/20” questions only she knows the answer to.   Should she step down from the Supreme Court seat she’s held for 20 years while there’s a Democrat in the White House until 2016 and a Democratically controlled Senate for at least another 20 months?

If Ginsburg cares at all about her legacy, she should step down while there’s still an opportunity to be replaced by a like-minded justice. If she hangs on beyond 2013 the odds keep going up a Republican controlled Senate will turn back any successor they consider too far to the Left.

I’m not the only progressive checking out the calendar and worrying Ginsburg may hang around past President Obama’s term.  In an essay for Salon Jonathan Bernstein laid out the looming dilemma.

Retiring and giving up her final years on the nation’s high court is a lot to ask from Ginsburg, who has been a liberal hero for many years. But just as she was a liberal hero before serving on the Supreme Court, she can be a liberal hero again by leaving it.

This is all pretty straightforward. Ginsburg is 80. Her health is apparently fine now, although she’s a two-time cancer survivor. There’s every possibility she could not only continue in office beyond the Barack Obama presidency but that she could survive even eight years of a Republican in office after that, if that’s what’s in the cards.

And yet: “Every possibility” isn’t good enough. Ginsburg will turn 84 soon after Obama’s successor will be sworn in. Realistically, anyone planning for the future has to assume there’s a 50 percent chance of that successor being a Republican.

Moreover, the simple fact is that most Republicans will support a filibuster against any Supreme Court nominee. Right now, the 55 Democrats (including two independents who caucus with the Democrats) may be enough, combined with a handful of Republicans who are moderate enough or simply oppose knee-jerk filibusters, to get a nominee confirmed.

It’s only going to get harder, however. Next year is an election year, and Republicans fearing a Tea Party challenge will be even more reluctant to let the Kenyan socialist in the White House have a third Supreme Court nominee confirmed. And after that, the odds are pretty good that Democrats will lose ground in the 2014 elections and that they could even lose their majority in the Senate altogether.

And then every month that goes by brings us that much closer to January 2017 and makes it that much easier for Republicans to just implement a confirm-nobody strategy to run out the clock.

Polski: Thurgood Marshall

Marshall was replaced by Clarence Thomas, his polar opposite.

Why should she stay? She’s been there 20 years already. Or do you want her to repeat Thurgood Marshall‘s mistake by hanging on too long and letting a Republican president appoint her replacement?

I’ve never understood why these Justices hang on to the bitter end. They live in Washington and they’re political animals: Ginsburg knows she’s more likely to be replaced by someone closer to her ideologically if Obama has Patrick Leahy running the Judiciary Committee instead of Charles Grassley.

An appointment to the Supreme Court is a lifetime gig, but why wait until you’re almost dead to step aside gracefully.   It’s not as if Ginsburg will out-wait Antonin Scalia or Clarence Thomas to see who steps down first.  Those two bastards would sooner eat their feet than allow Obama to pick their replacements.  Unless they drop dead during oral arguments (and as Thomas rarely speaks or asks any questions, who’s gonna notice if he does?), it’s Ginsburg at the top of the chart of associate justices most likely to call it quits.

It sounds cold to suggest Ginsburg exchange her robes for  slippers and morning television, but if she’s replaced by another Thomas as Marshall was she might have wished she retired a year earlier than later.

I’m a political animal too. Holding on to the bitter end is not a good way for a Supreme Court Justice to go out.   Ginsburg is serving a lifetime appointment and as long as her health holds up and her mental facilities are sharp (as lawyers who  are subject to her questioning during oral argument before the Court can attest to) she shouldn’t be badgered into leaving before she’s ready to go.   The way most of the Justices ignore the media and decline to do interviews it is unlikely Ginsburg pays much attention to the angst of progressives.

Ginsburg and her colleagues on the Court serve lifetime appointments to insulate them from political pressure.  That doesn’t mean when they choose or don’t choose to step aside doesn’t have major political impact.

Whether Ginsburg decides to stay or go, this woman who is small in stature will have a huge impact on the future direction of justice in America.

Ginsburg is a little lady who has a big impact.

The Biggest Bigot Ever to Sit on The Supreme Court

“Can I drive you home, Miss Daisy?”

The United States Supreme Court is the third branch of the federal government and historically the most mysterious to the typical citizen. Most can’t name more than a few of the nine justices and fewer truly understand how important they are to their lives. Every so often a decision is handed down that is so momentous only someone stuck in a cave can go unaware of its significance.

The Court attracts the best and the brightest of legal minds like a Oliver Wendell Holmes, William O. Douglas and Felix Frankfurther. There have been 112 men and women appointed to the highest court in the land, and once you get past the best and brightest you have the pretty good, just okay, and the staggeringly mediocre.

Then there are the special cases. The justices that are downright terrible and grossly incompetent.

Cue up Uncle Clarence Thomas. But before we got to #106, we had a real winner in Number 66, James Clark McReynolds.

Even Thomas might be floored by how foul a piece of crap McReynolds was. He authored no major decisions and is best known for being such an unlikeable bastard when he died not one of his colleagues on the Court bothered attending his funeral.

Appointed by President Woodrow Wilson McReynolds served on the Court for 26 years and while he worked with three other conservative justices to foil and block many of Roosevelt’s New Deal, he was a raging douche who went out of his way to be nasty, rude and bigoted even to his colleagues on the bench.   He pointedly refused to speak to Justice John Clarke because he was “too liberal” or Louis Brandeis and Benjamin Cardozo because they were Jewish.   He refused to pose for the annual Court picture with Brandeis posed next to him in seniority and would not sign opinions authored by Brandeis and would leave the justices conferences when he would speak.

One miserable, rotten human being right down to his socks.

When President Herbert Hoover was considering Cardozo, McReynolds and two other justices asked Hoover not “to afflict the Court with another Jew.”  When Cardozo was nominated the rabid anti-Semite from Kentucky reportedly said, “Huh, it seems that the only way you can get on the Supreme Court these days is to be either the son of a criminal or a Jew, or both.”

McReynolds had plenty of contempt left over from hating Jews to letting Blacks know exactly what he thought of them.  He hated having to serve with Jews on the Supreme Court, but he didn’t even try to mask his contempt for Blacks.  The American Spectator revealed how intemperate the judicial temperament of McReynolds was provided an opportunity to express it.

Arrayed behind the raised bench, the nine Justices peer down from their lofty, high-backed leather chairs, their black robes distinct against crimson drapes trimmed with gold.

Rising to his feet to begin his presentation is attorney Charles Hamilton Houston. Houston is one of America’s more brilliant members of the bar. Educated at Amherst College, where he was the class valedictorian, he had gone on to graduate cum laude from Harvard Law School, where he served on the law review. Today, the historic courtroom is hushed, with all eyes on Houston as he begins to speak.

Suddenly, silently, without a word, there is movement from the bench.

Justice James Clark McReynolds swivels his chair, turning it around 180 degrees. And keeps it that way. There is a moment of stunned silence as the recognition dawns on McReynolds’s fellow Justices, headed by Chief Justice Charles Evans Hughes. So too is there a jaw-dropping understanding in the rest of the ornate, historic chambers as everyone else realizes the import of what has just occurred. The Justice is now staring steadily at the curtains, the back of his tall chair quite deliberately, ostentatiously, and literally turned to Houston.

There was a reason.

Charles Hamilton Houston was not just one of America’s leading attorneys this November day in 1938. He was also a black man. And Mr. Justice McReynolds, a Tennessean, graduate of Vanderbilt and the University of Virginia Law School, a onetime law professor, a political progressive appointed in 1914 by the progressive hero Woodrow Wilson, is both a racist and a vehement anti-Semite.

McReynolds has no intention whatsoever of giving the black lawyer addressing the Court this day the slightest recognition. Why? Because James McReynolds — like the President who appointed him — judges people by race. He is, as is Wilson, a rabid white supremacist and a segregationist.

Houston, Justice McReynolds has a problem with you.

Indeed, when Chief Justice Hughes, a Republican appointed by President Herbert Hoover, later hands down the decision validating Houston’s argument and putting the first crack in Plessy by insisting on Gaines’s right to attend the school (which Gaines never did) McReynolds will write the dissent. True to the racial beliefs he shared with the President who appointed him, McReynolds insists that the “best interests” of Missourians are served by “separation of whites and Negroes in schools,” his racist values deciding his vote in one of the most important legal cases of the decade.

So too was McReynolds’s racism in play in Powell v. Alabama. This case involved nine young black men known to history as the “Scottsboro Boys.” Charged with the rape of two white women in 1931 Alabama, the defendants were provided with a lawyer only as the trial was literally about to begin. The trial lasted barely one day, at the end of which all but one of the young men were sentenced to death. The conviction was upheld by the Alabama Supreme Court. Now a civil rights cause receiving massive publicity across the nation, the case was taken to the U.S. Supreme Court. The Court, under the leadership of Chief Justice Hughes (Wilson’s opponent in the 1916 presidential election who campaigned on a platform pledging “the protection of every American citizen in all the rights secured to him by the Constitution”), ordered a new trial, siding with the black teenage defendant, “Ozie” Powell, and the Scottsboro Boys. The Court noted the “hostile” atmosphere that had prevailed in denying the defendants appropriate counsel, that blacks had been kept from the jury, and that the trial itself was neither fair nor impartial for racial reasons. In short, the Scottsboro Boys had been denied due process under the 14th Amendment. McReynolds dissented of course, tartly saying he did not see that a new trial was necessary.

Settling into the Supreme Court’s barber shop for a hair cut from the longtime black barber, a man named Gates, McReynolds decided to talk of Howard University, the famous black university in the District of Columbia. Said Justice McReynolds: “Gates, tell me, where is this nigger university in Washington, D.C.?” According to an account later provided by another Justice: “Gates removed the white cloth from McReynolds, walked around and faced him, and said in a very calm and dignified manner, ‘Mr. Justice, I am shocked that any Justice would call a Negro a nigger. There is a Negro college in Washington, D.C. Its name is Howard University and we are very proud of it.'”

James McReynolds would have despised serving on the Court with the likes of Clarence Thomas, but even a dead old segregationist would approve of how relentlessly Thomas has worked to be as unjust as possible to Blacks.

As hostile as McReynolds was to the Scottsboro Boys, Thomas has been similarly hostile to Black prisoners whose cases reach the Supreme Court as the cases of Juan Smith and John Thompson will demonstrate in the last installment.

The Last Day In the Death of Troy Davis

After the execution of Troy Davis comes the tears

(ORDER LIST: 564 U.S.)




The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is denied.

Clarence Thomas, huh?  Why am I not surprised to find his dirty little hands all over this?  He probably wishes he could have killed Davis himself.   But as much as I would like to blame Thomas for Davis’ death, he is shielded from direct responsibility by the secrecy of the Supreme Court.

Each member of the Supreme Court is assigned a portion of the country where all capital punishment cases go to for stay of execution.  Georgia is in Thomas’ ball court.  The entire Court decides whether the stay is granted or not but rarely do they comment either way.  Thomas probably voted with the rest of the Court’s conservative wing to deny the stay, but nobody knows but the justices themselves how they voted.

Not that it makes any difference now.

Davis was put to death for the killing of an off-duty police officer in 1989 and 22 years later, still proclaiming his innocence, he was given a lethal injection and killed by the state of Georgia after the Supreme Court gave them the green light.

If you lock up the wrong guy for burglary or robbery or extortion or arson, there’s always a chance they can be exonerated, vindicated, compensated and freed.

Screw it up with a capital punishment case and that’s it. No do-overs, no takebacks, no second chances to right a wrong. It’s game over. Fuck it up and someone is dead who should not be.

And how do you make up for that?

This is why as someone who has previously supported the death penalty, I am coming around to the conclusion I may no longer be able to do so.

There is nothing any president could have done to spare the life of Troy Davis. That said, while Rick Perry boasts how he sleeps perfectly well having sentenced over 230 people to die, Obama can’t take a pass on commenting on the state-sanctioned murder of Troy Davis.

White House spokesperson Jay Carney said the president believes in fairness in sentencing but, ” it was not appropriate for him “to weigh in on specific cases like this one, which is a state prosecution.”

I understand that explanation.  I don’t accept it.

How many votes did Davis have his in his favor among The Nine?

Even if the President doesn’t have the power to pardon a man in a state case, that doesn’t mean he can or should remain silent on one of the biggest and most painful issues of the year.

His silence would equal cowardice.

A leader doesn’t just speak when his people call upon him, but when his people are speaking and he remains quiet.  The president is failing this test of leadership.  It’s nothing new for the Supreme Court to keep their lips zipped.  When Obama dummies up its noticeable by the roaring silence.

The Republicans are scheduled for another debate tonight.  Think anybody will have the balls to ask Rick Perry what he thinks about Troy Davis?

As MLK said, “The hottest place in Hell is reserved for those who remain neutral in times of great moral conflict” and the president’s neutrality is not serving him well at this time.   It’s not that Davis was necessarily innocent or a good guy.   There were just ample reasons to delay his execution until some of the unresolved issues hanging over this case were answered.

Apparently, the Court felt after 22 years, all the questions had been answered in their mind.

Obama needs to end the silence and find his voice.  His refusal to say anything is maddening and frustrating.

Every one knows what’s right and what’s wrong. You can’t stay silent in a time of great moral conflict. When MLK was marching and getting dogs sicced on him and hosed down, HE MADE THE CHOICE TO STAND FOR SOMETHING!

I know Obama cares about Palestine and jobs and the government not shutting down. What does he care about one Black man being put to death for a crime he may not have committed?

I got mad respect for Obama, but when he avoids issues of race like Superman avoids Kryptonite he looks like the worst kind of coward.

Troy Davis is dead.   Everybody feel safer now?

"Troy Davis? Hmmm...don't think I know the brother."