Tag: Supreme Court

Republicans Speak Trump; Democrats, Esperanto

Posted on by Michael Liss

by Michael Liss

It is more proper that law should govern than any one of the citizens. —Aristotle, Politics

Supreme Court interior, Washington, D.C. Photograph in the Carol M. Highsmith Archive, Library of Congress, Prints and Photographs Division.

Aristotle was an optimist. Try to visualize an old Greek guy in a himation as a talking head on one of the Sunday shows. He’s never getting an invite to the White House—and it’s not just because of the clothes. Limits on an American President? This American President?

It is grim out there if you are a Democrat. The House, gone; Senate, gone; White House, so far away the distance is measured in light years. SCOTUS, nauseatingly gone. Day after day, Trump, with the cunning of an outlaw biker President, uses his power to taunt, punish and utterly dominate anyone who had or has the temerity to oppose him. Based on the number of prominent people and institutions that have knelt before him, he’s darn good at it. He’s also darn good at speaking to his supporters, and particularly skilled at keeping his fellow Republicans in line. Trump speaks fluent Trump, and Republicans, increasingly, are learning repeatable, debate-ready whole paragraphs of Trumpiness to be used in almost any circumstance. It’s a “Newspeak” modernized from 1984, and it works. People understand it. They react to it viscerally.

How about Democrats? With some notable exceptions, they mostly speak Esperanto. Excellent at cocktail parties with your photos of the Prado (“The Goyas were amazing!”), but not all that useful for everyday conversation.

Full stop. I am not going on an extended “TDS” rant, or its post-November 2024 variant of perpetual Democratic self-flagellation. Newspeak is also a definite no. Let’s talk about power in our system, the extent and implications of it, how it’s expressed and constrained, and the political application of it. In short, let’s channel our inner Aristotle and survey the role of the Rule of Law in contemporary politics.

Perhaps it is best to state the obvious at the beginning: What role? The Rule of Law is a losing argument in recent elections—and it is a losing argument to make to politicians. Maybe that will change, maybe it’s a temporary phenomenon of the Trump Era, maybe it just lacks a compelling spokesperson, but many voters don’t care—and in fact, some cheer its failure.

What is it they are rejecting? What is the Rule of Law? Read more »

Monday, February 12, 2024

Mifepristone, the FDA, and Abortion Activism

Posted on by Carol A Westbrook

by Carol A Westbrook

Mifepristone in updaated package

The Supreme Court is poised to make another landmark decision this year, when it determines if it will uphold a Texas Federal court’s ruling that invalidates the FDA’s (U.S. Food and Drug Administration’s) updated labeling of the abortion pill mifepristone (pronounced mi-ˈfe-pri’-stōn) , brand name Mifeprex (Fig 1). Not only will this ruling have a significant impact on abortions in the US, it will also determine whether the Supreme Court (Fig 2) has the power to modify or nullify an FDA ruling. But before we delve any further into this debate, let’s review the action of this drug on the biology of the female reproductive system.

Fig. 2. Justices of the US Supreme Court pose for their official photo at the Supreme Court in Washington, DC on October 7, 2022. (Seated from left) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Samuel Alito and Associate Justice Elena Kagan, (Standing behind from left) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson.

In the early part of a woman’s monthly cycle, her levels of the hormone progesterone rise, and this causes the lining of the uterus to thicken and increases its blood supply, converting it into a state that can support a fetus. After unprotected sex, sperm are deposited in the vagina, and they begin to travel up the fallopian tubes; at the same time, an egg is released from the ovary and travels down the fallopian tube. (Fig 3) When sperm and egg unite, conception occurs. Interestingly, the date of conception does not mark the start of the pregnancy; pregnancy is actually counted from the beginning of a woman’s monthly cycle, two weeks prior to conception. The total length of a pregnancy is usually 40 weeks, or 9 months. Read more »

Monday, January 1, 2024

A World Unsettled: The Supreme Court And The Risks Of Activism

Posted on by Michael Liss

by Michael Liss

January 1, 2024. Happy New Year! Just eleven months and five shopping days before Election 2024. Whether you find it comforting that 2024 also happens to contain an extra day might be the best marker of how Political Seasonal Affective Disorder has impacted you. Personally, I haven’t been sleeping particularly well.

The New Year is often about taking stock, and if I’m counting correctly, this is my 101st essay for 3 Quarks Daily. The majority have been about American history, American politics, and what is ostensibly American law but looks a lot like politics.

Last August, as the 49th anniversary of Richard Nixon’s resignation drew near, I started a series about the chaos of the late 1960s/early 1970s and how Presidents can lose their hold on the White House. That led me back to two men, one famous, the second memorable, who, to this day, in different ways, have had an impact on the way I think.

I will come to Henry Kissinger shortly, but I first want to spend a little time celebrating Walter Kaufmann. This is not the prolific philosopher Walter A. Kaufmann who was a pre-World-War-II expat from Germany, got his PhD at Harvard, and spent most of his career at Princeton. My Walter Kaufmann is Walter H. Kaufmann, who was also a German expat, got his PhD at the New School for Social Research, and, in 1953, published Monarchism in the Weimar Republic. My Dr. Kaufmann liked a cigar, a good story, and a better glass of wine. He also taught at my high school—German to those less linguistically challenged than I was, AP European History to voluble (in English) types like me. Dr. Kaufmann had a certain cool about him, in no small part for having gone to grade school with Werner Klemperer, son of the conductor Otto Klemperer, and, to Dr. K’s enduring dismay, the future Colonel Klink.

Like all good little suburban students, we took AP classes to take AP exams to score high enough to get college credits. Dr. K was a realist, but wanted to teach this subject on his terms. The word went out that no one got higher than a 93, his logic being that no one could know anywhere near 100% of the subject matter. So, if you were in the running for Valedictorian or Salutatorian and/or cared very much about your final class rank, to learn at the feet of Dr. K came with some obvious risks. Read more »

Monday, August 28, 2023

Supreme Corruption: The Highest Extort in the Land

Posted on by Mark Harvey

by Mark Harvey

Out of the crooked timber of humanity, no straight thing was ever made. —Immanuel Kant

Justice Clarence Thomas

I have a couple of friends in my county who might be considered high-powered on the local level. One is a district judge and the other is a county commissioner. I’ve invited the judge to a few local gatherings that support relatively benign conservation groups. He has always declined, saying that he may at some point have to rule on one of their cases, so he doesn’t want any appearance of supporting the group outside of court. I recently invited the county commissioner to a benefit dinner for another conservation group. He accepted the invitation but insisted on paying his way through a donation to the organization as he didn’t want to accept any gift from me. Compared to some of the all-powerful Supreme Court justices like Clarence Thomas and Samuel Alito, who rule the land, their ethics are studied and consistent. On Chief Justice John Robert’s court, their ethics might be considered quaint and would find no home.

Thomas and Alito have both accepted extravagant paid vacations worth tens and hundreds of thousands of dollars by political operatives and businessmen who have a lot to gain from having Supreme Court decisions go their way. In Alito’s case, he joined hedge-fund billionaire Paul Singer on his jet to Alaska for a fishing trip in 2008 and then failed to recuse himself on a 2014 Supreme Court decision that ensured Singer netted billions of dollars from a business deal. ProPublica, arguably the best investigative journalism operation in the world, wrote about the story in June. Anticipating the story when ProPublica sent him a list of questions about the Singer trip, Alito wrote a sort of preemptive editorial in the Wall Street Journal defending the trip—before the story was even written.

Part of Alito’s defense of flying on Singer’s jet to Alaska was that there was an empty seat that would have otherwise gone unused. That feeble excuse harkens back to the days of the notoriously corrupt New York Alderman, George Washington Plunkitt, who made the famous distinction between “honest graft” and “dishonest graft.” Serving in the New York City government in the late 19th century, Plunkitt knew in advance what lands would be necessary to complete a public park. So he bought the land and then sold it to the city at a very tidy profit. As he put it, “There’s an honest graft, and I’m an example of how it works. I might sum up the whole thing by sayin’: ‘I seen my opportunities and I took ’em.’” Read more »

Monday, July 17, 2023

Your Rights: Roberts’ Rules Of Order

Posted on by Michael Liss

by Michael Liss

It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. …[W]e do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country. —Chief Justice John Roberts, Opinion of the Court, Biden v. Nebraska

Let us not be misled.

Here we go again.  Another year, another round of controversial Supreme Court rulings, another set of difficult questions about the behavior of Supreme Court Justices.

This is not a happy group, and the unhappiness is not merely ideological. The personalities are different. In each of the four instances of changing seats since 2016, the Court lost a bit of its temperamental cohesiveness. Beyond the famous friendship between Justices Scalia and Ginsburg, Justice Kennedy was conciliatory and mindful of the Court’s traditions; Justice Breyer was courtly and insisted he was among friends. Now we have Justice Kagan squaring off against the Chief; Justices Thomas and Jackson engaging in what looks to be a very personal argument; and Justice Alito veering from searching for the Dobbs leaker, to accusing his critics of endangering his life, to airing his grievances from the safe space of the WSJ Opinion pages. Let me admit to being surprised that Justice Kavanaugh not only vouches for collegiality, but is also the Justice most in the majority.

That the liberal wing of the Court is discontented is understandable—with a couple of exceptions, it’s getting crushed on the field. Linda Greenhouse, in an article for The New York Times, points out that long-held conservative wishes that had been dammed up behind the pre-Trump-largely-centrist Court have been realized. Abortion, guns, affirmative action, the open embrace of religion, and a heavy SCOTUS hand on those regulatory actions of which conservatives don’t approve—all these trophy wins have been banked, with more to come. Greenhouse ends on what anyone who believes in checks and balances should find chilling: “The Supreme Court now is this country’s ultimate political prize.” Read more »

Monday, May 22, 2023

Midnight Judges And Jefferson’s Battle Over The Federal Courts

Posted on by Michael Liss

by Michael Liss

“Declaration of Independence,” John Trumbull. Capitol Rotunda.

November 1800. In the Presidential rematch between John Adams and Thomas Jefferson we have a clear loser, but not yet a winner. John Adams will be returning home. Thomas Jefferson, thanks to a bizarre tie in the Electoral College with his erstwhile running mate, Aaron Burr, will have to wait for the House of Representatives. Whatever that result might be, it is clear that a new team is coming to Washington. Jefferson’s Democratic-Republicans have flipped the House and have narrowed the gap in the Senate. Over the course of the next few months, thanks to by-elections, three more Federalist Senators will go down, and Jefferson’s party will control both the Executive and Legislative branches.

It’s fair to say that many Federalists are in a panic. Through Washington’s two terms and Adams’ first, being in power is the only thing they have known. It was so easy in the beginning, given Washington’s enormous personal prestige. Then, because people will talk, and there were more ambitious and talented men than there were positions to fill, the grumbling set in. It took just three years from Washington’s 1789 inauguration for Madison’s (and, sotto voce Jefferson’s) new political party to emerge, and, although the Democratic-Republican team did not contest the Presidency against Washington in 1792, it was part of a loose Anti-Administration coalition that won the House.

The grumbling increased in Washington’s Second Term, first directed at his Cabinet, particularly Alexander Hamilton, then, respectfully, of course, at Washington himself. A great man, yes, it was whispered, but in decline and controlled by his advisors. Among the whisperers was Washington’s own Secretary of State, Thomas Jefferson, who left the Administration at the end of 1793 to return to Virginia and do what Jefferson did exceptionally well—ponder, and quietly, oh so quietly, move political chess pieces around on the board.

The Federalists’ reign was not over: in 1796, enough people thought John Adams had earned a stint in the hot seat, and, by the narrowest of margins and with the help of the House of Representatives, Adams held the office for the party.  Still, the balance of power was inevitably shifting away from the Federalists. The Party was basically “aging early,” becoming stiff, cranky, lacking in new ideas. Read more »

Monday, April 10, 2023

Tribal Waters and The Supreme Court

Posted on by Mark Harvey

by Mark Harvey

After we get back to our country, black clouds will rise and there will be plenty of rain. Corn will grow in abundance and everything [will] look happy. –Barboncito, Navajo Leader, 1868

Barboncito, Navajo Leader, circa 1868

My idea of a fun evening is listening to the oral arguments of a contentious dispute that has reached the Supreme Court. As much as I disagree with some of the justices, I must admit that almost all of them are wickedly sharp at analyzing the issues—the facts and the law—of every case that comes before them. I don’t always get how they arrive at their final votes on cases that seem cut and dried before their probing inquiry. But most of them can flay a poorly presented argument with all the efficiency of a seasoned hunter field-dressing a kill.

So it was with the recent hearing on Arizona v. The Navajo Nation, heard before the court this year on March 20. At stake, in this case, is what responsibility the US government does or doesn’t have in formally assessing the Navajo Nation’s need for water and then developing a plan to meet those needs. The brief on behalf of the Navajo people, Diné as they prefer to be called, puts the case in stark and unmistakable terms: “This case is about this promise of water to this tribe under these treaties, signed after these particular negotiations reflecting this tribe’s understanding. A promise is a promise.”

The promise referred to in the brief refers to a promise made about 150 years ago when the Diné signed a treaty in 1868 with the US Government to establish the Navajo Reservation as a “permanent home” where it sits today. The treaty is only seven pages long and it promises the Diné a permanent home in exchange for giving up their nomadic life, staying within the reservation boundaries, and allowing whites to build railways and forts throughout the reservation as they see fit. A lot of things were left out—like water rights. Read more »

Second Monday In October: The Legitimacy Crisis

Posted on by Michael Liss

by Michael Liss

Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court. —Chief Justice John Roberts

Justices of the Supreme Court, October 3, 1931. From The New York Public Library.

Ah, if only it were that simple. It’s not, so fasten your seatbelt because the men and women in black are back.  

First, the good news. The Court welcomed its newest member in Justice Ketanji Brown Jackson, and the rookie can play. She acquitted herself quite well in her first oral argument in Merrill v. Milligan. Justice Jackson joins Justices Kagan and Sotomayor in the “Lost Battalion” of Liberals, but there is every reason to think she can make her mark.

Now to the bad: Regrettably, it must be noted that SCOTUS is back in session, and no good can come from this. Having wreaked havoc across a broad spectrum last term, Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett are expected to continue to gorge themselves. To paraphrase Sir Edward Grey on the eve of World War I, “The lamps are going out on our rights. We shall not see them again.” Read more »

Monday, March 28, 2022

Your Rights: Disappearing

Posted on by Michael Liss

by Michael Liss

Judge [Ketanji Brown] Jackson is an extraordinary person with an extraordinary American story[,] … [as well as] impeccable credentials and a deep knowledge of the law…, but I am unable to consent to the nomination. —Senator Ben Sasse (R-NE)

At least Ben was polite about it. The rest of Judge Jackson’s hearing was absolutely awful. If you watched or read or otherwise dared approach the seething caldron of toxicity created by the law firm of Cotton, Cruz, Graham & Hawley (no fee unless a Democrat is smeared) you’ve probably had more than enough, so I’ll try to be brief before getting to more substantive matters.

 

First, as to KBJ’s chances, the jury is still out. Sasse’s fan dance means the Judiciary Committee will split 11-11, so a parliamentary maneuver will be required to move her nomination to a vote by the Senate as a whole. She just got Joe Manchin on board (leaving Sinema as the only possible Democratic holdout), and she might, maybe, get a vote or two from a Republican.

We should acknowledge that standing up and out of the latrine that Cotton & Co. just dug is a little difficult for many Republicans, even the ones who are about to retire. I mean, who could possibly say yes to a smut-peddling, criminal-coddling, CRT hugger who doesn’t even have a grasp of basic anatomy? The country should be grateful that Republicans finally were able to unearth the truth (having erroneously aided in confirming her to the federal bench twice before). Good grief. It wasn’t always like this. Read more »

Your Rights In The Rearview Mirror

Posted on by Michael Liss

by Michael Liss

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. –Alexander Hamilton, Federalist 78

It’s my oldest memory. I am three, standing harnessed between my parents, in a brand-new two-seater 1959 Jaguar convertible roadster. We are on an empty gravel road someplace in Virginia and my Dad decides to let his new baby fly. I can see In front of me the windshield and, below, a gray leather dashboard that has two things of great interest…a speedometer and a tachometer. The motor hmmmmmms as he takes the car through the forward gears, the tachometer first rising and then falling, the speed increasing. The big whitewall tires are crunching the rough road; cinders are flying; we hit 60 MPH, then 70, then 80; and I’m clapping my hands and piping out “Faster, Daddy! Faster!” My mom goes from worried to furious “Slow down, Ernie, slow down!” As he passes 90, I look down for a moment and she’s slapping her yellow shorts. I peek at the rearview mirror and see a huge cloud of dust. 95, 100, and finally 105. Then without warning, and without using the brakes, he starts to slow, gradually downshifting; the speedometer and tachometer fall; and that’s where my memory ends.

I have been thinking about writing a Supreme Court piece since the conservative bloc’s muscle-flexing on Texas’s SB-8 abortion law, and, each time I do, the memory of that beautiful sportscar flying down the road keeps gnawing at me. The thrill of it, the uncertainty, the obvious danger. My Dad’s going through whatever decision-making process he did to start, continue, and end.

We’ve got a new Sheriff in town, a new driver for that beautiful car. Justices Thomas, Alito, Kavanaugh, Gorsuch and Barrett are taking the wheel and the throttle. Just where is their ultra-conservative vision taking us, and at what cost? Read more »

Monday, July 22, 2019

SCOTUS Says No To Politics

Posted on by Michael Liss

by Michael Liss

The Supreme Court doesn’t play politics.

In what was destined to be an inevitable ruling, by an inevitable 5-4 vote, inevitably written by Chief Justice John Roberts, the Supreme Court decided, in Rucho v. Common Cause, that it couldn’t decide how much “partisan” gerrymandering was too much partisan gerrymandering. So it wouldn’t. Case closed.

Rucho is an extraordinary decision, with the potential, over the next 10 years, to change fundamentally the way we experience democracy. That may seem to be a radical statement, but it is absolutely true: Political parties now have a virtually free hand, once they obtain control over a state government, to redistrict as they see fit in order to retain that control. The Supreme Court is not completely out of the game—Roberts did acknowledge that they might still review gerrymandering based on race, or on “one-person, one-vote” grounds, but, by order of the Chief Justice, the Courts will be closed for a permanent federal holiday if the gerrymandering was done for the purpose of political gain.

This is an earthquake, which will, no doubt, lead to a further arms race between the parties. As Republicans control more states (Kyle Kondik, writing for Larry Sabato’s Crystal Ball, cites research indicating that Republicans control redistricting for 179 Congressional Districts, Democrats only 49), the advantage will be theirs. Many critics on the Left are suggesting that the conservative majority on the Court chose this path for precisely this reason. I prefer not to be cynical. Rather, I just want to point out the obvious: The real losers will be the center of the electorate; mainstream, moderate voters who find their concerns completely ignored because the more “safe seats” there are, the more influence primary voters (who tend to be far more doctrinaire) will have. This will inevitably lead to more radicalized government answerable to fewer and fewer people, and even more alienation. Read more »