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The spring term of the Supreme Court wrapped up last week. Most commentary in general or within discussion of specific cases seemed at pains to find balance. Seeing this, my immediate question was "So is the court in balance, or on the verge of chaos?" I only pay some attention to the court. There is no reward for the layman to pay more attention than that. Specific cases arise out of specific facts and are decided by applications of specific points of the law. Try as it might American jurisprudence does not proceed by world turning philosophical pronouncements. The laws are, as well, an intricate and detailed dialogue of closely reasoned arguments that in some if not most cases extend back a hundred years or more. A single undergraduate constitutional law course does not get you a seat at the table. In the end; however, the law must embody a common sense, and survive common sense reviews of its workings to prevent the law drowning and perishing in a sea of arcania. The seeming over-all balance of decisions in the last term, was the result of a balance of votes equaling a balance of decisions, There was a fluctuation of deciding votes which belies the uniformity and rigidity of the courts conservative segment A Win by McCain Could Push a Split Court to Right and graphic
The Supreme Court Term - washingtonpost.com. The Scalia/Thomas/Alito/Roberts bloc formed a closed and hermetically sealed conservative core. They do not have membership in the middle ground, in any dialogue. All compromise occurs elsewhere on the court. The court in fact is at a tipping point, the appointment of single even mainstream conservative to the court and an almost unprecedentedly reactionary Court would emerge quickly from this present cusp.
A few of the more contentious cases stuck with me. Plus one legislative issue, aspects of which are likely to come before the Court eventually. First Detainee rights: Boumediene v. Bush
Justices Say Detainees Can Seek Release - washingtonpost.com:. This one led to Scalia hurling thunderbolts of fear in dissent. The problem was entirely of our own making. The history of the war on terror as been marked by a disinclination towards formality, with a positive inclination towards executive fiat and secrecy. A disinclination to place them in any existing category of status or craft a new one. NPR interviewed Benjamin Wittes recently
Book Ponders How To End Detainees' Legal Limbo : NPR , author of
Law and the long war : the future of justice in the age of terror which examines this issue in detail [see also the review in Foreign Affairs
Foreign Affairs - Terror and the Law - Curtis A. Bradley.] Neither prisoners of war, incarcerated in uniform held to the end of national controlled hostilities, or citizens belonging and subject to some nations law, to which they ought be repatriated. Even (more accurately more problematically) individuals who have injured U S citizens, or property for which international agreement (treaty UN mandate etc) allows American legal action to apply. That they did none of this made it a matter of US law, Made it a matter of US due process. Made it a matter of US law's notions of the natural rights of the Accused. The right to see the accuser and hear the evidence, and not be confronted with the blank wall of interested secrecy and cloaked assertion. Made it matter of our own integrity before the Laws. The fundamental nature of due process this idea of anglo-american justice leads in the direction of universal extensively. Only a bush league poverty of truth and legitimacy stand for limitation.
Telecom Immunity is another of these topics of executive privilege. Here the FISA stuatue: H.R. 3773 a bill in congress passed in the House currently before the Senate. The basic problem with this immunity specified in the second section of this bill (title ii) is that breaks the connection between action and consequence. It is a substantial moral hazard. It dissipates the pressure to disclose or confess when the bright red lines are crossed
Why the new wiretapping law is a lot worse than you think. - By Patrick Radden Keefe - Slate Magazine. It would be best to balance latitude with signatures and the courage of ones convictions. An informal rule that ought to apply is to allow the executive a political latitude perhaps generous latitude close to the latitude they crave (Wittes book also speaks on this point). But not place blanket grants of immunity into the nations laws that would extend that latitude to private citizens, random government officials or corporations. Avoiding law through simple national security letters and the like. This only creates governance by arbitrary and unpromulgated application of law. It fundamentally cuts the bond between the people and government. Without the threat of accountability or punishment, no-ones conscience prods them forward into the light. Arrangements among the pillars of power abound. Neither the people nor their representatives learn of actions in order to judge their need effectiveness legitimacy or malfeasance. These are exceptionally powerful tools the security apparatus ask for here. If the President, or designee feels a need on going beyond the boundaries prescribed by the existing FISA law, they ought have to conviction to stand up to penalty, whether criminal political or social opprobrium. The view of the establishment and this seems to include the Obama campaign at the moment
Telecom Amnesty Foes Lobby Obama Using Obama Tech | Threat Level from Wired.com is give the administration the bill they want or the administration will keep breaking the law and any law that follows the fracture. It is not theirs to hand over inalienable rights that casually. The court made a ruling in just the past few weeks on Exxon Shipping v. Baker
Justices Slash Damages for Exxon Oil Spill:. This is the Exxon Valdez case from twenty years ago. The court has down-warded 500 million dollars against reckless despoilment of Prince William sound
What Does Exxon Owe Alaskans? 1994: Billion; 2006: 5 Billion; Today:
.5 Billion - Dot Earth - Climate Change and Sustainability - New York
Times Blog (I have a little Narcocorridos in the works which I will call, of course, Viva Valdez). The Robert's court in an affect of principle turns punitive damages from pain to petty cash. ExxonMobile's (
ExxonMobil - Powerset) revenues for 2007 were $404.5 billion dollars. There is a message here as well, for those championing offshore drilling particularly the mysterious right wing campaign for immediate offshore drilling in Florida. This involves Cuba with either Vietnam or China's assistance slant drilling into Florida waters to steal US oil. No real sign of that. But for the care the drilling companies will show for your waters fisheries and beaches; this is your message in a bottle. The case District of Columbia v. Heller, the 2nd Amendment case
Justices Reject D.C. Ban On Handgun Ownership - washingtonpost.com was perhaps the strangest of all. At first I didn't think so, private citizen gun ownership has come to be regarded as an conventional right. It was never in doubt what this court was going to do to the District of Columbia's gun law. At the same time the exact meaning of the second amendment was never a settled issue, Its been argued about and in the same terms since I heard it argued in a school debate in seventh grade. The second amendment is a classic example of when opposing rights and desires collide. The desire for the comfort power and immanent settlement of firearms, against the right for safety and freedom from the ease and ecstatic violence of automatic weapons. What I found odd was that the majority opinion simply read the opening clause out of the constitution. It was inconvenient it exists to moderate the whole which would have lead to a less than absolute right so it just disappeared. What precedent that existed disappeared. If in the future DC's shootings escalate, and guns in America become anything but "well-regulated" this will not inconvenience Justice Scalia. In fact I don't think inconvenience is really the word at all.
As people begin to look over this term the conception that this is in many ways a deeply activist court insinuating itself into various realms of governance and placing its opinions on top. From the conservative wing we get bullying backfilling justifications. There is a hard put center and essentially no progressive vote on the court. The argument in Crawford v. Marion county election board was close to giggling nonsense. They claim strict constructing when that argument will deliver, clear words of the legislator, or obvious intent of legislator as they see it when that will. Law is ever a straight line from them to their prevailing opinion. This is a court that increasing is taking charge and reorganizing American law for the right's benefit.
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