Packing Sand
Following the end of the last spring term, a year ago, the spin on the Supreme court was that it was a remarkably balanced set of decisions for a court composed as it was. This year, for this last session, no one bothered pushing that line. It was clear to everyone the US Supreme Court had taken a major turn to the right
Decisions Indicate Supreme Court Moved Rightward This Term - washingtonpost.com. This could be read even in the small handful of cases I paid any attention to. There was the West Virginia Judicial Bias case (Caperton v. Massey) The Supreme Court talks about judicial bias. Sort of. - By Dahlia Lithwick - Slate Magazine. This case which I think I first heard about through a 60 Minutes piece is especially bad and revealing. A case so stark as to beggar description. A man, Brent Benjamin, seeking an elected judicial position in West Virginia receives massive campaign contributions from another man, Don Blankenship, who is seeking to overturn a multimillion dollar judgement against him (for unfair competitive practices that ran another company out of business). A case that judge would decide upon taking office, which he announced he had no intention of recusing himself from. It was never that this judge might overcome bias, through application of heroic professionalism. It was entirely that he was not supposed to. He was intended to be purchased justice. And he intended to deliver and lay the limp body of the Law and lay it at Don Blankenship's feet. This was fine by that reliable section of the court Alito, Scalia, Roberts and Thomas, even if in this case they were the only ones and held the minority. Roberts and Scalia issued wounded dissenting opinions provoked by the simple idea the certitude of self examination was not word enough for the public. Brought short by the weak minded notion that wealth should not be able inhabit and reconstitute justice in its image at will. Fretting only mildly that the chimera of judicial bias might bring harms of appearance to the judiciary.
In the voting rights act case {Northwest Austin Municipal Utility district no.1 v. Holder} the story was that it was mark of the conservatism and restraint of Justice Roberts, even a concession to the left that a key part the voting rights act was not simply declared unconstitutional. It wasn't that there weren't those urging them towards this. The Court rather decided in the end to embrace a more limited notion of letting jurisdictions opt out of regulatory provision of the act (that of pre-clearing changes to voting regulations and jurisdictions with the federal government) if they could demonstrate a history of not interfering with with the right to vote Supreme Court: More districts can sue to bail out of Voting Rights Act | csmonitor.com.
An area where the current court seems obviously engaged in programmatic operation is the area of affirmative action. It is a transparent fiction - a malintended lie - to claim that the United States is a class and prejudice free nation, simply because our legal framework is such. No more than proscribing laws and mores alone have eliminated crime. The last significant case of the last term was New Haven Fireman case {Ricco v. DeStafano}. There are elements of this case that make it a muddle. The city had settled on an examination to enable advancement, then balked at this when the results did not show the diversity they also desired. What caused them to imagine a written test as the final arbitrator of anti-combustion effectiveness I don't know? But when they attempted to change course after the fact, suit was brought. This was a case that Judge Sonia Sotomayer had judged at the appellate level Court rules for white firefighters, reversing Sotomayor panel | csmonitor.com . Ricco was not explicitly an affirmative action case. It was not the perfect instrument or test case constructed as crucible to dissolve formal racial awareness, leaving only human nature to carry that enterprise forward.
Some suggest ending attempts at affirmative action, achieving racial blindness, then fighting any lingering effects in other ways. There is an interrelation of class and race prejudice. Racism; though, can't be entirely trapped by reduction to economic deprivation. Artificial adherence to a idealized level playing field that refuses statistical awareness that the field still drains poorly and denies it repair, comes close to a suggestion that a level playing field is not desired The damage done by the Supreme Court in the New Haven firefighters case. - By Richard Thompson Ford - Slate Magazine. I've been around long enough and in different situations to know there are times in given homogenous groupings consensus are reached that seem so obvious as to preclude discussion. Yet with only minor changes to the groups make-up that consensus can be turned on its head.
Court's hard right knot Alito, Scalia, Roberts and Thomas (ASRT) is real. They vote in unison near or in excess of eighty percent of the time. The only question is does it represent adherance to principle or these individuals position in this society. In Scalia's case it hardly matters, he is an intellectual bully by nature. He plays law the way a young Bobby Fischer played chess. He knows few can argue on his level and holds them at bay with tactics of intimidation.
Despite some small fear of perception of bias on the Court, there is the desire to have the Court proceed in a certain manner, notwithstanding the Chief Justice's disinclination to overtly (or obviously) take on that role. I think the Court is aware that by much of the public they are increasing perceived as a body in motion. Aware that they may be perceived as being outside the envelope of American public opinion, something that would strip away a measure of their authoritarian majesty. Originalism is activism. It is a movement with an ideological vision and intended on steering the nation and laws (back) towards this. It is not a course that reflects much judicial restraint or stare decisis. It is largely unalloyed corporatism, the straw boss of the modern world. Marked by continual weakening of ability for common citizens to achieve standing to challenge large institutions in the courts. A course against the extension of standing or collective action. Abandoning, in society, solitary individuals against powerful entrenched interests often faceless behind blank corporate being. Every day Alito, Scalia Roberts and Thomas look in the mirror and their wealth, comfort and privilege is reflected back to them in an overwhelming, confirming sense of entitlement and right order. What they are is the norm from which all else deviates in error. Which makes it an easy task to be dismissive of all else and call it reason. True dispassionate rationality exists only at a remove.
Over the next few weeks the spectacle of Sonia Sotomayer's confirmation and hearing will be in the news. Her judicial experience is considerable extensive it is also rather uncontroversial it won't be commented on much in these proceedings. She didn't spend time as an academic there is no long paper trail of journal articles. She was an inveterate speech giver and the debate will likely center on out-takes from these. The Senators and opinion leaders on the right are well aware that Sotomayer represents and safe and centrist selection for the Obama administration. She will be in many ways an even replacement for Justice Souter. What will occur is an exercise in defining the envelope of allowable opinions on the court with an eye towards future vacancies.
James MacGreagor Burns, a respectable academic...we read him even at Maryland never a hotbed of the revolution, wrote a recent book critical of the Court
Packing the court : the rise of judicial power and the coming crisis of the Supreme Court [WorldCat.org] discussed in this Slate review
James MacGregor Burns' Packing the Court. - By Emily Bazelon - Slate Magazine. He rather raffishly advocates directly challenging the court - this would be accomplished the executive and legislature both - if they attempt to swing into a obstructionist mode or if they continue to produce programmatic rulings heralding a single-minded march to the right. The Court has no mandate to place their own plutocratic oligarchic stamp on this country no matter what conception of the nation excites their ego and sense of entitlement.
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