Bush V. Gore

The Calm Before The Storm

Ronald 1 Comment

If one is a proud progressive or liberal, as this blogger is, it is hard not to be squirming today as one contemplates the likelihood of two major setbacks for the progressive movement in America this week from the United States Supreme Court.

The majority of experts and prognosticators forecast a 5-4 vote against the Affordable Care Act and for the Arizona immigration law restrictions.

Both such events would be terrible setbacks, and hard to overcome in the short run for sure, and probably in the long run as well.

Some say a defeat on the Obama Health Care law would lead ultimately to Medicare for all within a couple of years, and that defeat on the Arizona SB 1070 would lead to comprehensive immigration reform within two years, as well.

But all that only seems possible IF the Democrats win both houses of Congress and the Presidency again in November.

The theory is that two defeats administered by the right wing Supreme Court by 5-4 margins, on top of the Citizens United case and the Bush V. Gore case of twelve years ago would so galvanize the American people, who are progressives, to organize, unify, vote en masse to promote the necessary changes.

But when one considers the great edge financially that the right wing has with billionaires ready to spend hundreds of millions of dollars individually to back Mitt Romney and the Republican Party in Congress, including the Koch Brothers and Sheldon Adelson among others, one has to wonder if even such organization and unity and discipline by progressives will be enough, particularly when added to the active campaigns of Republican Governors to purge the voting rolls, and defy the Voting Rights Act of 1965.

One can hope for the best on all fronts, but it is hard not to be pessimistic and a bit depressed on this Sunday before the storm likely to erupt this week, by a one vote margin created by the outrage of George W. Bush being selected President over Al Gore a dozen years ago, and still reverberating in 2012 and, likely, beyond!

Did Barack Obama Go Far Enough On Gay Marriage? Ted Olson Does Not Think So!

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In the midst of all the celebration and joy over President Barack Obama’s strong endorsement of the right of gay men and women to marry, he included in his statement on the issue that the matter should be dealt with on the state level, state by state.

But Ted Olson, former Solicitor General under President George W. Bush, disagrees.

He and David Boies, the two lawyers involved in the Bush V. Gore election controversy in 2000, are fighting to bring the denial of gay marriage in California, after it was first allowed, to the Supreme Court, with the idea that the Court can determine the constiitutionality of gay marriage, much as they did with interracial marriage in 1967, with the Loving V. Virginia case.

Yes, it is true that 31 states have banned gay marriage in votes of the people of those states, but why should a basic human right, the right to marry, be subjected to a vote of the people?

If this was done about interracial marriage, even today, a majority in many states would ban such a relationship, but it is not the right of anyone to tell others that they cannot have happiness, and this is the point of conservative Ted Olson and liberal David Boies!

There should be a national standard on marriage, and it should be legal and consistent everywhere in the country.

A Supreme Court decision could mandate this and end the issue for good!

And it is certain that such a decision would not prevent churches and synagogues from deciding not to marry gay people, since civil marriage is all that would be covered by such a decision.

Hopefully, sometime soon, the issue of gay marriage by civil method will be resolved in the law in favor of human rights!

Is It The Kennedy Court, Rather Than The Roberts Court?

Ronald 1 Comment

The more one analyzes the US Supreme Court in recent years, it is more clear than ever that we should call it the Anthony Kennedy Court, rather than the John Roberts Court!

Kennedy, appointed to the Supreme Court by Ronald Reagan in 1988 as a compromise choice who could pass Senate muster, after the well publicized rejection of Robert Bork in 1987, has now been on the Court for 24 years, and is seen more than ever as the “swing vote” on the Court, first sharing that with former Justice Sandra Day O’Connor, until her retirement in 2005, but now all by himself as the most significant vote on the Court.

Kennedy, basically a conservative but with an open mind, has leaned to the Right two thirds of the time, and to the Left one third of the time on the average.

It is seen by just about all Court watchers that Kennedy’s vote on the Obama Health Care legislation is crucial, as to whether it survives or goes down.

Kennedy disappointed many on the left in being in the majority on the Bush V. Gore case of 2000, the Citizens United case of 2010, and the Strip Search case of this past Monday. But at the same time, he upheld the rights of gays to privacy in the Lawrence V. Texas case of 2003, enraging fellow Justice Antonin Scalia.

His questioning about the Obama Health Care law last week showed the quandary he is in, and he is getting pressure from many sources to uphold the law, but the belief is that he will not give in to pressure, and might even be tempted to go with the other conservative Justices in overturning the law.

The theory is that IF Kennedy goes with upholding the law, that Chief Justice John Roberts will join him, making it a 6-3 vote, but that if he decides to negate the law, then the vote will be a partisan 5-4 vote against the legislation.

So to call the present Court the Kennedy Court seems very appropriate!

The Need For Supreme Court Reform By Constitutional Amendment

Ronald 1 Comment

THe controversy over the US Supreme Court has grown in recent years, with the Bush V. Gore case of 2000, where the Court, by partisan majority, chose a President; and the Citizens United case of 2010, which also, by partisan majority, the Court claimed that corporations and labor unions had the same right to freedom of speech in politics as did ordinary citizens, and has led to the Super PACs that are now distorting campaign finance in the Presidential Election of 2012.

That, along with the concern that the Court might strike down the Obama Health Care legislation by another 5-4 partisan majority, and the Strip Search decision of the Court this past Monday, also by partisan majority, makes many wonder if there is not a need for Supreme Court reform.

This is nothing new, as a century ago, during their Progressive Party campaigns for President of former President Theodore Roosevelt in 1912 and Wisconsin Senator Robert La Follette, Sr. in 1924, as well as proposals of President Franklin D. Roosevelt in 1937, suggestions for changes, including constitutional amendment changes by TR and La Follette. were advocated.

Of course, the constitutional amendment route is a very difficult one, and it could be a long road to necessary change, but even if not imminent, the changes that this blogger proposes are worthy of consideration, if not adoption.

These proposed changes would include the following:

A term on the Supreme Court should not be lifetime, but instead 15 years maximum, which in most cases, would mean the Justice would be over 70 at the end of the term.

No one should serve on the Supreme Court past the age of 80, with only a handful who have so served, including outstanding men, such as Oliver Wendell Holmes and John Paul Stevens. Losing such luminaries at age 80 is a shame, but no one can be considered as irreplaceable, as the President and the Pope are replaceable, as well as any other position in any government!

While 5-4 decisions on normal cases would continue, any attempt to override legislation passed by Congress should require a super majority of 6-3 to have such effect. Since we have a two thirds vote for a constitutional amendment to pass Congress and go to the states for ratification; a two thirds vote to override a Presidential veto; and a two thirds vote to ratify a treaty in the US Senate, it seems reasonable that a two thirds vote should be necessary to overturn a congressional law.

What these suggested amendments do is allow turnover on the Court more regularly, and stop the image of the Supreme Court as being out of touch with America, and as an arrogant, unelected group that can hold back progress!

The Destruction Of Civil Liberties: Anyone Arrested For Any Charge Can Be Strip Searched Multiple Times, By Declaration Of The Right Wing Majority Of Supreme Court!

Ronald 1 Comment

An extremely shocking, disastrous decision of the US Supreme Court today will bring the power of the legal system down heavy on ANYONE arrested and detained, no matter how minor the infraction, including traffic violations!

By a straight 5-4 conservative majority of the Supreme Court, a person arrested for failure to pay traffic fines, which he had actually paid, led to six days of detainment in a local jail, and constant, repetitive strip searches that left the person involved feeling a loss of his masculinity, self esteem and self image.

This is not for serious criminals who are accused of murder and rape and robbery alone; it is for ANY charge, no matter how minor, and not only for convicted criminals, but any suspect on any accusation that leads to arrest and detention.

The local police gain unusual powers and control, and what makes it any different than a dictatorship, one may ask?

It is one thing if someone is thought to have contraband on his person, but for everyone for any minor offense or accusation? This is absolutely CRAZY, but nothing can be done about it, and all of us will face the fear that if by chance we are ever detained for ANY reason, we will lose our sense of dignity and self worth!

And realize this includes not only men, but women and CHILDREN as well!

This is insanity, and shows the dangers when the “wrong” President is in office!

This is the result, long term, of the Bush V. Gore case, where the Supreme Court, on a purely partisan basis, gave George W. Bush the Presidency over Al Gore, which led to Chief Justice John Roberts and Associate Justice Samuel Alito in 2005 and 2006!

These two men are proving to be hard line conservatives, and now we must wonder if Roberts, who supposedly worries about the image of the Court, will do what is right on the Obama Health Care legislation in June, and prevent a purely partisan decision by 5-4.

But it also makes one wonder about Associate Justice Anthony Kennedy, a Reagan appointee, who sometimes goes against the conservative majority on the Court, and who could have prevented this nightmare decision today, but chose not to do so.

Will he stay with the conservative majority again on the Obama Health Care law? This is crucial, since if he joins the four liberals on the Court, it is seen as likely that Roberts would join that side, but if Kennedy stays with the conservatives, Roberts assuredly will stay with them as well.

These are the consequences of electing a President, and makes the re-election of Barack Obama even more urgent, as otherwise, the Court will become no better than a Fascist Court in spirit, if not in name!

This decision of the Court will damage the reputation of that body, and it is something all of us who care about civil liberties will mourn for a long time!

Just be very careful NEVER to face arrest, as if we can control that!

Showdowns Between Presidents And The Supreme Court: Jefferson, Jackson, Lincoln, Franklin D. Roosevelt, Nixon, And Obama

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President Barack Obama today challenged the Supreme Court to support the Obama Health Care legislation, which was argued last week before the Court in an unprecedented three day, six hour presentation by the two sides in the case.

Obama made clear that two conservative Circuit Court judges, Laurence Silberman and Jeffrey Sutton, have backed the legislation as constitutional.

Just by simply answering a question from a journalist, what Obama has done is thrown down the gauntlet to the Court, as he did when he criticized them face to face at the State of the Union Address in 2010, shortly after the decision in the Citizens United case, the most unpopular decision of the Court since Bush V. Gore in 2000.

As the author listened to Obama’s challenge to the Court, it brought back the history of Presidential challenges to the Supreme Court in the past.

Thomas Jefferson and Andrew Jackson challenged the Court’s authority, causing antagonism between both Presidents and Chief Justice John Marshall.

Abraham Lincoln was critical of the Dred Scott Decision before his Presidency, and was in conflict with Chief Justice Roger Taney during the Civil War, until Taney’s death in 1864.

Franklin D. Roosevelt denounced the Supreme Court over challenges to the New Deal programs, and tried to “pack” the Court, and Chief Justice Charles Evans Hughes defended the Court from the attacks of the President.

Richard Nixon denounced the Court as too liberal and permissive under Chief Justice Earl Warren, when Nixon ran for President, with Warren swearing him in as President, and then retiring later in 1969. Nixon then had the opportunity to make four Supreme Court appointments and turn the Court more conservative.

And now, Barack Obama has challenged the Court for the second time, with Chief Justice John Roberts expressing discontent, after the fact, to the first criticism of the Court, expressed during the State of the Union Address.

Wondering what the ultimate relationship between Obama, and the Chief Justice and the entire Court in the future, will be, is one of the key events of this election year!

Certainly, Obama is in good company, distinguished company, with the other Presidents who have challenged the Supreme Court!

Chief Justice John Roberts: What He Wants As His Long Term Legacy

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There is much speculation about the US Supreme Court and the most important case in a decade–the Affordable Care Act, known by its critics as “ObamaCare”.

Many think Anthony Kennedy is the key vote, but actually, the author would say that Chief Justice John Roberts is the REAL key vote, and there is much speculation that he will join the liberals and Kennedy, the usual swing vote, and might even convince Antonin Scalia and Samuel Alito to join as well, on the power of his personality and the respect he engenders on the Court over the past seven years.

Chief Justice Roberts is going to have long career on the Court, and he wants his legacy to be positive, and IF the Court rules against “ObamaCare”, his reputation will be in tatters, and will be irretrievable.

Roberts is considered one of the brightest members of the Court, and although a conservative, he is not extreme as Clarence Thomas, for instance, is.

Roberts wishes to unite and move forward, and has been stung by the horrible reaction to the Citizens United case of 2010, and to the remnants of the Bush V. Gore case of 2000, the damage done to the reputation of the Court BEFORE he arrived as Chief Justice in 2005.

His questioning showed a mind conflicted, but to believe that he will negate the whole law is hard to imagine, as he set aside three days and six hours for this case, highly unusual, and that is, to many observers, a sign that he recognizes how crucial this issue is in itself, and the seriousness with which he takes it..

While no one can read the mind of anyone, expect Roberts to write the opinion and be in the majority, which is likely 6-3, but could be 7-2 or 8-1.

This case will shape the long term future of the Court, and if the law is overturned, the likely result will be, over time, a single payer system, which any conservative would not want.

And remember it was conservatives who led the charge in the time of Bill Clinton for what is now “RomneyCare” in Massachusetts, and “ObamaCare” in America!

The Supreme Court On Trial IF It Destroys Health Care Reform: Creation Of A Constitutional Crisis

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The US Supreme Court is in the midst of a crisis of massive proportions, if it destroys the Obama Health Care reform in June.

It will create a crisis in health care for about 50 million Americans, and affect young adults, senior citizens, and people with pre-existing conditions in a massively negative way.

It will undermine the major effort of the Obama Administration to bring health care into the 21st century, and on the same level as every other democratic nation in the world, many of whom have had national health care for all for decades.

It will also put the Supreme Court as an institution on trial, as it is already perceived as overly partisan, with many of the decisions decided on party line vote, based on which party’s President chose the members of the Court.

It will also make it even more obvious that the election will have the effect of deciding the future direction of the Court, based on which party gains the Presidency and has control of the US Senate. This has always been true, and has been mentioned by this author numerous times on this blog.

This Court could undermine public faith and respect for the institution itself, doing even more damage than the Bush V. Gore case of 2000, and the Citizens United case of 2010.

The Court has been a hot political issue in the past in election years, including:

1800-Thomas Jefferson vs. John Adams, with the power of the Court a key issue, and Adams’ last minute appointment of Chief Justice John Marshall leading, despite opposition of Jefferson, James Madison, James Monroe and Andrew Jackson, to a very powerful Supreme Court shaped by Marshall.

1860–The election of Abraham Lincoln, who attacked the Dred Scott decision that stated that a slave owner could take his slave anywhere in the United States, and helping to lead to the secession of the South, and the coming of the Civil War.

1876–An election where the popular vote loser, Rutherford B. Hayes, was chosen by a committee which included five Supreme Court Justices, when no one was able to win the contested electoral votes of three Southern states–Louisiana, South Carolina and Florida.

1912 and 1924–Third party (Progressive Party) candidates Theodore Roosevelt and Robert La Follette, Sr., respectively, proposed limitations on the powers of the Supreme Court .

1936–Franklin D. Roosevelt made the Court an issue because of its constant declaration of New Deal laws as unconstitutional, and tried to “pack” the Court by a proposal to add six new Justices for each one on the Court over the age of 70, an idea soundly defeated in 1937.

1968–Richard Nixon campaigned against the “liberal” Court of Chief Justice Earl Warren, who then had to swear him as President in January 1969, but retired shortly after.

2000–The Supreme Court on a partisan vote stopped the vote count in the state of Florida, thereby awarding George W. Bush the Presidency over Al Gore, with a margin of victory in Florida of 537 votes statewide.

2012 could be another such case of a President confronting a defiant Supreme Court to the will of the majority in Congress and the American people!

Trying To Fathom The Supreme Court On Health Care: The Court Under The Microscope

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Yesterday’s oral arguments before the Supreme Court led many observers to think that the Court is about to declare the Obama Health Care law unconstitutional this coming June.

Not so fast, ladies and gentlemen! This is hysteria and panic before the fact, with plenty of opportunity after the Court decision, if it is, indeed, negative!

Emphasis was put on Justice Antonin Scalia’s sarcastic comments about mandating broccoli, a totally ridiculous statement! But one must remember that Scalia is a showboat, a maniacal egotist who loves to hear the sound of his own voice, and get everyone’s attention, and one must remember that the Court was issuing an audio of the oral arguments immediately after the event, a very rare circumstance, and that had to be on Scalia’s mind!

Scalia was thought to be a possible vote, but if it is not, so what, as Scalia is, arguably, a hypocrite who is constantly contradictory, utilizing a broad interpretation of the Constitution, when he wishes to, and other times, pontificating on “originalism”, the idea that we must literally follow the Founding Fathers as they saw things in 1787 at the Constitutional Convention.

More importantly, the view of Justice Anthony Kennedy and Chief Justice John Roberts will be the crucial votes, and although Kennedy and Roberts both expressed some reservations about the Obama Health Care bill and the mandate contained within it, there were also key comments by both that indicated a mind open to consideration of the constitutionality of the law.

Kennedy is usually the swing vote, and seemed conflicted, which can be seen as a good sign, and Roberts seemed very evenhanded, and is known to want to be in the majority, and probably write this most important decision of the past decade, and aware that the Supreme Court does not look very good in the eyes of many people based on recent cases, particularly the Citizens United Case of 2010, on top of the Bush V. Gore case of 2000.

The argument is that if Kennedy goes to the majority, then Roberts will join, and the vote would be 6-3.

And one must point out that the four defenders of the legislation were excellent in their arguments supporting the legislation, with Justice Stephen Breyer, a true intellectual, particularly outstanding in his arguments, but joined by Ruth Bader Ginsberg, Sonia Sotomayor, and Elena Kagan.

So, with one more day of oral arguments, it is not time to give up on support of the legislation, and also realize that one cannot always judge how members of the Court will vote, based on oral argument alone, as often, what is being done is to test both sides in the case, and sometimes, purposely mislead on intentions, in the process of asking the lawyers in the case to defend their side.

This decision is far from certain, but progressives should feel optimistic about it at this point, and simply wait patiently to see the result, knowing that the cause is just and compassionate, and that those of us who support it are on the right side of history with Franklin D. Roosevelt’s New Deal and Lyndon B. Johnson’s Great Society!

Newt Gingrich’s Attack On Activist Judges: Hypocrisy, Since Only Against Progressive “Activists” But NOT Conservative “Activists”!

Ronald 1 Comment

Former Speaker of the House Newt Gingrich is already showing signs of decline from his “surge” two weeks ago!

Not soon enough, as Gingrich is declaring “war” on “activist” judges, but is totally hypocritical in that he is only attacking “progressive” activists, and not “conservative” activists!

He would wish for a court system which was one sided, only promoting conservative advocacy, and setting America back to the 19th century Gilded Age!

He claims to know history, since he has a History Ph.D. from Tulane University in European History, but he boasts too much of his knowledge about American History and the American Constitution!

If it was up to Gingrich, he would wipe out Warren and Burger Court decisions that have transformed this country politically and socially, and really would wish to wipe out the “judicial review” established by the Supreme Court under John Marshall in the early 19th century!

To claim that only “progressives” are activists is totally ridiculous, as ALL Justices are “activist” in different ways, as they are INTERPRETING the Constitution, which is meant to be a “living” document, adaptable to changing times!

Just one example of conservative “activism” on the Supreme Court is Bush V Gore, where the conservative majority Court in 2000 decided to intervene, stop the ballot recount in Florida, and decided the Presidential Election Of 2000. What gave them the right to do that? And look at what it led to, eight years of foreign and domestic disasters that will reverberate for many generations on our nation!

So Gingrich, as usual, is acting as a demagogue, also demonstrated by his demand that lower federal court judges be required to explain their decisions to the Congress in committees, or be arrested! What a revolutionary, radical grab of power such a requirement would be!