Holding Court

Call this post a full-court press on Supreme Court news and views (article on Stevens "The Dissenter," and "The Incredible Shrinking Court," need to be read by Monday):

1) From the 2005 Senate comfirmation hearings of Samuel Alito, political cartoonist Mike Lane illustrated the constitutional conundrum facing the newest justice and the term stare decisis -- lettting the precedent stand unless there are compelling reasons not to -- and a woman's right to choose an abortion.

Alito's mother said, "Of course he's against abortion,'' in a classic sound-byte before during the confirmation hearings. The question is not really what the Alito believes personally, but as NPR reported in 2005 if that Roe v. Wade was settled law.

http://www.npr.org/templates/story/story.php?storyId=5012335
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2) U.S. Supreme Court Justice Clarence Thomas made news last week by speaking his mind, something he's not prone to do while on the job.

As the above data shows, Thomas' silence during Supreme Court oral arguments is legendary. While his colleagues pepper lawyers with questions, Thomas listens. While the other 8 justices force legal teams to perform verbal and logical gymnastics 30 minutes at a time, Thomas often leans back in his large chair and stares at the ceiling.

When he does speak during oral arguments, it's almost always in private conversation with Justice Breyer. (And from the looks at the menus that they swap, those conversations are often about what to get for lunch.)In the past, Justice Thomas has said the oral argument time is not meant for Justices to show off but for the lawyers to make their legal arguments before the Court. But Thomas has recently said--in jest-- that “My colleagues should shut up!”

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3) In the Ny Times article, "The Disenter," gives insight into how the High Court has moved right and now the self-proclaimed conservative, and eldest (and now retired) member of the Supremes, may have been be The Nine's most liberal justice:

"Justice Stevens, the oldest and arguably most liberal justice, now finds himself the leader of the opposition. Vigorous and sharp at 87, he has served on the court for 32 years, approaching the record set by his predecessor, William O. Douglas, who served for 36. In criminal-law and death-penalty cases, Stevens has voted against the government and in favor of the individual more frequently than any other sitting justice. He files more dissents and separate opinions than any of his colleagues. He is the court’s most outspoken defender of the need for judicial oversight of executive power. And in recent years, he has written majority opinions in two of the most important cases ruling against the Bush administration’s treatment of suspected enemy combatants in the war on terror — an issue the court will revisit this term, which begins Oct. 1, when it hears appeals by Guantánamo detainees challenging their lack of access to federal courts.

"Stevens, however, is an improbable liberal icon. “I don’t think of myself as a liberal at all,” he told me during a recent interview in his chambers, laughing and shaking his head. “I think as part of my general politics, I’m pretty darn conservative.”

http://www.nytimes.com/2007/09/23/magazine/23stevens-t.html?_r=1&oref=slogin

This is one of the two linked articles you need to read by Monday.

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4) The second article you need to have read by Monday is Time's cover story from last October:

The Incredible Shrinking Court

"The irony is that the Court's ideology is playing a dwindling role in the lives of Americans. The familiar hot-button controversies--abortion, affirmative action, the death penalty, police powers and so on--have been around so long, sifted and resifted so many times, that they now arrive at the court in highly specific cases affecting few, if any, real people. And it's not clear that Roberts wants to alter that trend. His speeches on the judicial role suggest a man more interested in the steady retreat of the court from public policy than in a right-wing revolution. Unless the Roberts court umpires another disputed presidential election (à la Bush v. Gore in 2000--a long shot, to say the least), the left-right division will matter mainly in the realm of theories and rhetoric, dear to the hearts of law professors and political activists but remote from day-to-day existence. What once was salient is now mostly symbolic."

http://www.time.com/time/magazine/article/0,9171,1670489,00.html

5) Finally, a re-run post from last year's 'Global Warming' SC decision:

The world saw former Vice-President being called a “rock star” and getting an Oscar from movie stars for his documentary on the “climate crisis,” and later a Nobel Peace Prize. But with far less glitz and fanfare, the legal definition of whether global warming is damaging US and the world was being argued in the U.S. Supreme Court a few months ago.

The new “swing vote” on the high Court is Justice Anthony Kennedy and his questions during the oral arguments in Massachusetts, et al. v. EPA (05-1120) seemed to indicate that justices may be ready to decide more than the case at bar.

At issue is the states’ (MA. and 12 others, including Illinois) lawsuit challenging the federal bureaucracy’s (EPA) lack of enforcement of an act of Congress (1990 Clean Air Act). The questions the Court is considering are:1) May the EPA decline to issue emission standards for motor vehicles based on policy considerations not enumerated in the Clean Air Act?2) Does the Clean Air Act give the EPA authority to regulate carbon dioxide and other greenhouse gases?Breaking down the oral argument, Justice Kennedy seemed to be saying the Court has a bigger, global, question to answer. But not all on the bench seemed to think it was in the Court’s jurisdiction.

From the transcript of the oral argument, Justice Kennedy is questioning counsel for the petitioners, the Massachusetts states attorney:

JUSTICE KENNEDY: At the outset, you made this, some of this perhaps reassuring statement that we need not decide about global warming in this case. But don't we have to do that in order to decide the standing argument, because there's no injury if there's not global warming? Or, can you show standing simply because there is a likelihood that the perceived would show that there's an injury?

MR. MILKEY: Your Honor, especially in this case where none of our affidavits were challenged, I don't think the Court needs to go there ultimately on the merits because we showed through our uncontested affidavits that these harms will occur. There was no evidence put in to the contrary, and I would add that the reports on which EPA itself relies conclude that climate change is occurring.

JUSTICE KENNEDY (later): What is the scientific answer to if global warming exists? I think this Court might have to press for an answer to this question.

(Justice Antonin Scalia’s prides himself as a strict constructionalist, and a Constitutional scholar. He never claimed to have aced Mr. Rosiano’s “Cosmic Journey” class, he chimes in):

JUSTICE SCALIA: Mr. Milkey, I always thought an air pollutant was something different from a stratospheric pollutant, and your claim here is not that the pollution of what we normally call "air" is endangering health. That isn't, that isn't -- your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming.

MR. MILKEY: Respectfully, Your Honor, it is not the stratosphere. It's the troposphere.

JUSTICE SCALIA: Troposphere, whatever. I told you before I'm not a scientist. (Laughter.)

JUSTICE SCALIA: That's why I don't want to have to deal with global warming, to tell you the truth.The decision in Massachusetts, et al. v. EPA (05-1120), given last June ruled in favor of Massachusetts.

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In analyzing new Chief Justice John Roberts and newest associate justice Samuel Alito influence of the high Court, attorney Patrick Cotter said the two, who have not spoken or written much, have had little effect so far. For the long term, however, Cotter said President Bush may have created what conservative presidents have been trying to do since the 1950s – cement a solid block on the bench. He said to watch how many times Kennedy sides with Roberts and Alito.Statistically, the Roberts Court took 40% fewer cases this year than last, when it issued just 69 opinions (the lowest # since 1953). Now the docket is even less filled with just half the opinions to come down as compared to the Rehnquist court of the late 1980s. What would possible reasons for the Court deciding less? Blog your thoughts. Linked is the transcript of the oral arguments in 05-1120.

http://www.oyez.org/cases/2000-2009/2006/2006_05_1120/argument/

There are no cameras in the Supreme Court or other Federal Courts, although movement to advance bills such as the "Sunshine in the Courtroom Act of 2007" has been progressing.

www.firstamendmentcenter.org/news.aspx?id=19772

But there are charts that track the decisions that our Judiciary make. Click on the picture above and you will get a great graphic from the Washington Post which shows the number of US circuit court judges appointed by Dems & Repubs as well as the # appointed by Bush. Then click here for an article that argues that Bush may not have changed the Supreme Court as much as he wanted (Justice Stevens the 87-year-old hold out) but he has had a significant impact on the circuit court level.

This article talks about how Obama may be able to create a "major shift"in the federal judiciary.The chart at the left tracks the SCOTUS voting record of the last session of the High Court, which had more 5-4 decisions than the Supremes have had in the past.

As we watched the Elena Kagan hearings last June, here are some sites to help you teach the US Supreme Court. First off the Chief Justice always writes a year end report which, among other things, talks about the number of cases appealed to the Court each year and how many were given certiorari. It is a very short document that your students could easily digest.

SCOTUS Blog is another great resource. Here is a link they put together yesterday on year end statistics, graphs, etc. (including how often each judge voted w. each other, the number of 9-0 decisions (more on this than any other) and much more.

Where does Elena Kagan stand on...

//www.nytimes.com/interactive/2010/05/10/us/politics/20100505-kagan-opinions.html?ref=politics

Compromising Position

WASHINGTON (AP)– His political credibility on the line, President Barack Obama testily defended his willingness to choose compromise over combat with Republicans on Tuesday, lecturing fellow Democrats not to be "sanctimonious" purists.

Sensitive to charges of caving on bedrock principles, he said he welcomed fights with the GOP ahead of his 2012 re-election bid.

"I will be happy to see the Republicans test whether or not I'm itching for a fight on a whole range of issues," Obama said. "I suspect they will find I am. And I think the American people will be on my side."

The subject was taxes, who would or wouldn't keep Bush-era reductions come Jan. 1. But for Obama, barely a month after disastrous congressional losses to the Republicans, there was a lot more to it.

What emerged Tuesday was a portrait of a president determined to show he's not a weak, irrelevant capitulator — the kind of image that, if it becomes part of a lasting narrative, could derail his presidency and re-election bid.

In the past few days, Obama has tried to recover from the midterm elections by showing deference to his opponents, angering allies in the process.

The key moment came Monday, when he announced a deal with Republicans that would extend tax cuts to all taxpayers for two years, after long insisting that upper income Americans did not need the help and the nation couldn't afford it. Though he won a number of concessions from Republicans, congressional Democrats were left bristling.

Fore more:

http://news.yahoo.com/s/ap/us_obama

With all the budget talk this last week, the 2 Teachers at CBS 2 School gave us a good post on Budget Basics:

You had to know your GSL (Government as a Secondary Language) if you expected to understand the big budget news last week.

President Barack Obama’s bi-partisan national debt commission released its formal report suggesting ways to reduce the nation’s deficits and total debt. But the Commission also released news that its suggestions did not garner enough support to automatically move the proposals forward in the legislative process.

The Commission’s proposal dealt with five key budget basics:

Revenues—the taxes collected by the federal government that pay for government expenses.

Among the Commission’s proposals was a plan to simplify the U.S. tax code but eliminate popular incentives such as tax deductions for mortgage interest. The proposal also caught political flak for suggesting that top income earners should pay even more into the Social Security program.

Entitlement Spending—governmental expenses that are permanent and can only be changed with amendments to laws. Of the $3.5 trillion dollars that the federal government spends, more than $2 trillion is spent on entitlement spending.

Social Security is the government’s single most expensive program, and only getting more expensive with a larger pool of retirees who are living longer than ever. Among the Commission’s more controversial proposals was trying to save money by increasing the age (from 67 to 69) at which someone could receive full Social Security benefits.

Discretionary Spending—well less than ½ of the federal government’s expenses are costs that can be adjusted on an annual basis.

Defense spending takes up the lion’s share of this spending with more than $600 billion spent in this area for the 2010 fiscal year. The Commission recommended that discretionary spending be capped from 2012 through 2020. It also recommended that non-critical spending be cut in order to get spending more in control.

Deficit and Debt—our federal government has spent over a trillion dollars more than it takes in for revenues this year. With the accumulation of deficits during the last 40 years, our government as accrued more than $14 trillion in total debt during that time.

The Commission’s recommendations were meant to deliver a stark message about the importance and difficulty of cutting expenses while increasing revenues. If adopted fully, the Commission’s proposal could have resulted in cutting $4 trillion dollars in deficits by 2020. But with key lawmakers from both parties refusing to endorse the Commission’s deficit-cutting proposals, we’re back to hearing the same old message that GSL has delivered for nearly 50 years: let the next generation deal with it.

Don't Tell Me.....

While President Obama could use and Executive Order to hault enforcement of the military's "Don't Ask, Don't Tell," policy, he has said it would be better for Congress to take action after the Defense Department issued it's report.

Congress at work in the Senate Miltary Affairs Committee produced this, as covered by TPM (and the Daily Show):

Jon Stewart last night lampooned Sen. John McCain's (R-AZ) continued stalwart opposition to repealing Don't Ask, Don't Tell, even after the Pentagon released its review indicating that a repeal of the ban on openly gay men and women would have little to no effect on military readiness.

"McCain's like one of them Japanese soldiers living on Okinawa in 1949, still fighting because he doesn't realize the war ended a long time ago," Stewart said. "And, for some reason, even though he's been alone for years and years on this island, doesn't like gay people."

Read TPM's full coverage of the Don't Ask, Don't Tell debate here.

Gaypocalypse Now

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