supreme

A Politically Motivated US Supreme Court

Submitted by Charles Knighton

supreme_courtShortly after John Roberts became Chief Justice of the US Supreme Court, he admitted concern that a steady stream of 5-4 decisions could undermine the court’s credibility and legitimacy as an institution. His fear was well-founded. Since then, the Robert’s court has issued bitterly polarized, 5-4 rulings on its most controversial cases—including gun control, voting rights, affirmative action, campaign finance law, Obamacare and gay marriage. Court observers have been almost unanimous in their estimation that these rulings simply represent the results of a mini-election on a court as nakedly partisan and polarized as the country itself—a court with four “blue” justices, four “red” ones, and one “purple” swing vote. It has become increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means, and that justices are not merely politicians clad in fine robes. This is not, one suspects, what the Founders envisioned when they created the court to arbitrate and help temper what Alexander Hamilton called the “ill humors in the society”.

It was not always thus. Until recent decades, the court’s landmark decisions often came in one-sided rulings (Brown v. Board, Loving v. Virginia were both 9-0). Presidents sometimes nominated distinguished jurists with indistinct ideologies, such as Byron White and David Souter, whose philosophies evolved over time. That hasn’t happened since Ronald Reagan appointed the court’s one “purple” justice of today, Anthony Kennedy, and it isn’t likely to happen again. For these reasons, the ideologically strident battle brewing over the replacement of recently deceased conservative justice Antonin Scalia will only serve as a harbinger of what is to come.

Many Americans, conservatives and liberals alike, view the next election as being all about the Supreme Court—and sad to say, it’s an entirely sound rationale. The court has evolved into the most powerful branch of government, making decisions that polarized voters and a gridlocked Congress and president cannot. Since justices serve for life, filling a court vacancy is now the president’s most consequential domestic decision. Depending on whether or not President Obama is successful in replacing Scalia before his term ends, the next president may replace up to four justices—and utterly reshape the court.

On Inauguration Day in 2017, Justices Ruth Bader Ginsburg and Anthony Kennedy will be in their 80s. Stephen Breyer will be 78. If a Democrat appoints replacements for all of them, the court would swing to a 6-3 liberal majority. If a Republican fills all four seats, conservatives would have a 7-2 advantage. Even if there are just two replacements, the court—and the country—will very likely take a sharp left or right turn and stay on that path for decades. The coming political fireworks should provide much entertainment.

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40 Comments on “A Politically Motivated US Supreme Court”

  1. Violet C Beckles February 16, 2016 at 2:25 AM #

    The Supreme Law of the Land is the Constitution and what trumps that is the Treaty with the Moors , If they fail to keep law and order the Nation will flip for that is law,No treaty no Union States for America.

    We the People of the United State , People = Moors?

    Like

  2. David February 16, 2016 at 6:43 AM #

    This submission is timely. It questions the issue of the of impartiality of the bench. An Obama appointment to the bench will be fought on all fronts by the Republicans. We should discuss why and importantly for us, is it any different here?

    Like

  3. de Ingrunt Word February 16, 2016 at 7:59 AM #

    Yes David a timely commentary and doubly yes, how impartial are the judiciary.

    That is a loaded question and not unlike a loaded gun it can be a dangerous thing to play with.

    It would be difficult for example for our legal contributor and UWI Dean Jeff C to freely and frankly opine on that subject re BIM.

    I have no skin in the game so stating the obvious carries with it no back-wash.

    The courts present that aura of impartiality and broadly reviewed they are. But judges here, in the US and in other jurisdictions are afflicted by personal biases as we all are and that definitely affects their decisions – some do so within the context of the written law; others act more brazenly and legislate from the bench.

    Examples are many.

    The saving grace of course re judicial bias is the wonderful option of legal appeal. But that requires more resources to continue an already difficult battle…

    Incidentally the author was quite definitive on the ‘whys’ of this fight to appoint Supreme Court judges. Its the most powerful non elected post in the US and thus the elected folks demand a say in who sits there.

    Here the power of the judges is more muted but they too have a great impact on the country’s life-blood!

    One simple example. If judges became completely free of political winds or peer pressure after appointment to the bench don’t you think they could improve the sloth of our courts and effectively censure (within the law) the rogue lawyers who gum up the system or act with negligence towards their clients. I think they could.

    Like

  4. chad99999 February 16, 2016 at 1:50 PM #

    The reason the judiciary has become so powerful in so many places is because countries all over the world have mindlessly copied the American example of a written constitution and a charter of rights. These are the two documents courts use to legislate from the bench. Judges will suddenly discover that laws against homosexual acts or same-sex marriage or euthanasia are “unconstitutional”, even though this kind of reasoning is pure BS. How could same-sex marriage be OK but polygamy be illegal. How could patients suddenly have a right to suicide.
    Another reason for judicial supremacy is the cowardice of career politicians.These people want to stay in office as long as possible, usually for personal enrichment, and one way to do so is to get the judiciary to make the tough political decisions that can cost votes.

    Like

  5. Tron February 16, 2016 at 7:11 PM #

    At least no backlog at US Supreme Court. That distinguishes this court from the muppet show in Bim.

    Like

  6. David February 16, 2016 at 8:31 PM #

    Is this for real?

    Lesbian nominated by Obama for Federal Judge

    Like

  7. de Ingrunt Word February 16, 2016 at 9:50 PM #

    David are you for real??? What exactly is at issue with a person who identifies as gay or lesbian sitting as a circuit judge in the US State judicial appellate system?

    I know that fire and brimstone will surely rain on us all for this continued abomination of same-sex-relations which according to our bible scholars is unholy and against God’s will…(I say with tongue stuck in cheek). But beyond that what is the issue here?

    There have been misogynist, rabid racists and a whole host of other undesirable characters that have been judges on the Federal bench why pray tell should a person who finds love in a place from which many in society frown be denied if they weren’t?

    I don’t grasp your query or concern?

    Like

  8. David February 16, 2016 at 9:56 PM #

    @Dee Word

    The concern is a vacillating lameduck Obama.

    Like

  9. chad99999 February 16, 2016 at 10:59 PM #

    What are the chances that a lesbian judge is going to be completely fair to a male who is, say, accused of sexual assault of a female? Male judges often prefer female litigants over males for reasons of chivalry. Now male defendants also have to worry about lesbian judges. Then there are the feminist judges who believe women are always right. Where do men go to get justice?

    Like

  10. Simple Simon February 16, 2016 at 11:24 PM #

    I have no problem with gay male or female judges. I expect that gay people have ALWAYS sat on the bench, only thing this back in the day nobody thought of asking a judge where he or she got their jollies.

    Like

  11. chad99999 February 17, 2016 at 6:33 AM #

    I can confidently state that there were no lesbian judges to worry about back in the days when I was growing up, and I resent the fact that there are so many of them around today. I do not believe most of them can be fair, because they cannot get over the fact that they are lesbians. They always have axes to grind, personal scores to settle. Most have a condescending attitude to men, and many are determined to show that they can exercise power over men. Not good.

    Like

  12. David February 17, 2016 at 6:49 AM #

    Keep an eye on the politics. How will the conservatives and right wingers react on the campaign. How will the electorate respond. How will the Democrats benefit.

    Like

  13. de Ingrunt Word February 17, 2016 at 9:10 AM #

    David, I believe you have caught this bull (no pun intended) by its hooves and not by the horns…there is absolutely minimal political fall-out to the Democrats on this issue.

    @Simple is right of course that gay persons abound in the public elected process and have been appointed to the judicial benches – though in small numbers – for several years now. Specifically Pres Obama has walked his talk on diversity by appointing from inception of his tenure ‘many’ judges who identify other than heterosexual.

    This new appointment is not his first (gay/lesbian judges overall) and those conservatives who disparage it will have just as much legitimacy as @chad9999 above. It is irrational to suggest that a lesbian/gay judge cannot be as impartial as a straight judge because of the former’s hatred or love of men.

    BTW, there are many CONSERVATIVE, RIGHT WING gay folks.

    This issue is political for all the wrong reasons and one can never get persons to agree on the fundamental, nor resolve the faulty reasoning of @Chad.

    But when an arch conservative like Dick Cheyney wakes up one morning to the public awareness that his beloved daughter has announced her lesbian orientation then bit by bit the nonsensical political palaver becomes muted by the right-wing.

    Denounce the judge on her scholarship, lack of legal judgement and matters which will determine her efficacy on the bench.

    Who she sleeps next to is not a valid criterion! Just simple prejudice and bias. And irrational argumentation!

    Like

  14. chad99999 February 17, 2016 at 9:57 AM #

    David. Excuse me. A judge’s bias against men IS a political bias. Politics does not just refer to partisan power struggles. The term covers power competition between all individuals and groups. Consult a dictionary.

    Like

  15. islandgal February 17, 2016 at 7:36 PM #

    Chaddd999999999999999999999

    Please take your meds RIGHT NOW! You are hysterical and delusional !

    Like

  16. Carl Moore February 18, 2016 at 9:30 AM #

    Somebody cropped your picture of the judges of the United States Supreme Court. Where are the other two—Ginsburg and Thomas?

    Like

  17. David February 19, 2016 at 6:51 AM #

    Thank you Carl Moore, BU waiting on submissions from you as well. Join the forum, help to make it better.

    Like

  18. Carl Moore February 19, 2016 at 9:09 AM #

    Thanks David, for correcting that picture of the nine U.S. Supreme Court judges.

    You invite me to “join the forum”. You mean re-join, so here I go again, hoping that, this time around, there will be a few more contributors willing to identify themselves and engage in clean and sensible public discourse on the issue I now post.

    Take the Tim Cook Apple “dilemma”. The FBI is making a request to get access to certain information on the iPhone left by one of the San Bernardino killers but Mr. Cook is pleading privacy and security, as if they are synonymous; that to allow the FBI request is to open a “back door” to all and sundry.

    This supports an observation I made a few years ago, which I repeat: “All of civilisations’ eggs are now in technology’s basket … and there is no way back.” But I don’t buy Mr. Cook’s excuse.

    Can we have a mature discussion on this issue without someone reminding me of something I’ve already admitted: that dear old departed Ossie was my cousin?

    I know this matter will not escape the keen legal intellect of Mr. Jeff Cumberbatch and the equally incisive minds of Mr. Alvin Cummins and Mr. Charles Knighton, (among others who are not afraid to identify with their ideas), so I look forward to them sinking their teeth into it.

    Like

  19. David February 19, 2016 at 9:35 AM #

    @Carl

    The Apple/FBI is one of many examples in recent years where concerns about intellectual property and national/global security overlap. It is not a slam dunk as you have hinted. There will be always tension given the nature of how business is done today. Apple under law has the right to exhaust legal avenues.

    Stop waiving a red flag i.e.post your perspective. A pilot in war has to focus on the target and avoid incoming.

    Like

  20. Carl Moore February 19, 2016 at 10:24 AM #

    What red flag; what slam dunk? I thought I’d made my perspective clear ; how much clearer do you want it? Looks like it is you who are trying to obfuscate the issue, David.

    Like

  21. de Ingrunt Word February 19, 2016 at 10:27 AM #

    @Moore, you are such a strident advocate of identification and yet you had a career as a journalist who I must believe would have protected and defended the privacy of a confidential source in the face of whatever the law brought against you.

    Your repeated calls now for those here who seek privacy (many in the same context of those sources) is either absolute hubris or damned hypocrisy. Clearly the efficacy of commentary is not diminished because of the shrouded identify of the blogger just as the info from a secret source remains valuable as long as it can be validated.

    Please make your remarks and defend your positions on the merits; accept bloggers on their merits too and leave the flame-throwers alone.

    Now on the substantive Apple issue. In a word or two re Mr Cook: BS.

    Make the technology and let the COURTS decide when and where free speech can be assailed. It is not for Apple or any other tech comp to get into the area of how far judicial review or a country’s security inspection should go.

    This is a slide to the sci-fi movie concept where ‘Hal’ takes over and shuts out all human command…the real threat to all ‘civilizations’ eggs…’ to which you alluded.

    Like

  22. David February 19, 2016 at 10:41 AM #

    @Dee Word

    The other point Carl must appreciate is that the use of technology is built on trust based on the encryption technology. If the Court approves the government order it will set a precedent.

    Like

  23. de Ingrunt Word February 19, 2016 at 11:01 AM #

    David you know of course that this is really a strange new frontier for this new Apple technology. I say strange because the Courts have repeatedly upheld properly crafted police/Gov’t legal filings to get into cell phones.

    My awareness of these cases suggest that when a direct and clear link is made to the criminal activity and phone records that the gov’t has won the day. In turn cases have been thrown out when police officials have gone on fishing expeditions once phone access was gained.

    Criminals will strive to do their ting and a sensible society must be able to counteract their actions.

    It is self-defeating for Apple or Facebook or anyone to develop tech (without checks and balances) that is so ‘useful’ to society but that also can be used very effectively in the pursuit of destroying that same society.

    How does that make technical or practical sense…I though scientists and these smart fellows were all about the ‘practical’!

    Like

  24. Sargeant February 19, 2016 at 10:49 PM #

    @DIG
    It is self-defeating for Apple or Facebook or anyone to develop tech (without checks and balances) that is so ‘useful’ to society but that also can be used very effectively in the pursuit of destroying that same society
    ++++++++++
    It isn’t self defeating if it was done deliberately as Apple has done, they knew that this day would come and that is precisely why they developed the technology without a way to retrieve information and protect the privacy of its customers. It isn’t the first time that a company has faced calls by a Gov’t for a way in to its devices as a few years ago the Gov’t of India threatened to ban Blackberry unless it provided that Gov’t the means to recover encrypted information. If Apple backs down how long do you think other Gov’ts e.g. China, Russia, India, Pakistan etc. will wait to be allowed the same access?.

    Some of the best minds in the world are in various US State security apparatus the Gov’t should task them to unlock Apple’s secrets and not ask Apple to do it for them.

    Like

  25. de Ingrunt Word February 20, 2016 at 2:14 AM #

    @Sargeant, as I recall the India-Blackberry issue was a different matter completely. India wanted to be able to snoop on all BB traffic or have a carte blanche open encryption. BB said no way initially as memory serves.

    This is quite different. The gov’t is asking for a specific inspection. That should be under the control of the courts similar to standard matters for search warrants in any private area.

    I have no doubt those minds have been on hack attack 24-7.

    Like

  26. David February 20, 2016 at 6:37 AM #

    @Dee Word

    The point you are missing is that if the Court stays with the ruling it will set a precedent around the globe. This has the potential to undermine the trust in the technology if there is the belief big brother can have backdoor access.

    Like

  27. ac February 20, 2016 at 7:14 AM #

    Yes Apple has a right to protect customers Privacy ! but does Apple has a right to protect Criminal activity as in the case of the San Bernardino shooters linked to ISIS ?
    Where does a moral right by Apple to those who died and also might have been customers of Apple take precedent ? or does/nt it ?

    Like

  28. David February 20, 2016 at 8:16 AM #

    Breaking News: The Justice Department said Apple’s move “appears to be based on its concern for its business model and public brand marketing strategy,” rather than a legal rationale.

    Justice Department Calls Apple’s Refusal to Unlock iPhone a ‘Marketing Strategy’

    Like

  29. ac February 20, 2016 at 9:37 AM #

    Agree with the JD n much about peoples privacy but protection of one own interest. How can a business that
    speaks of privacy simply ignore the rights of victims

    Like

  30. David February 20, 2016 at 2:38 PM #

    @Dee Word

    Your review of the following quote?

    Some would argue that building a backdoor for just one iPhone is a simple, clean-cut solution. But it ignores both the basics of digital security and the significance of what the government is demanding in this case.

    In today’s digital world, the “key” to an encrypted system is a piece of information that unlocks the data, and it is only as secure as the protections around it. Once the information is known, or a way to bypass the code is revealed, the encryption can be defeated by anyone with that knowledge.

    http://www.csmonitor.com/Technology/2016/0217/Why-Apple-doesn-t-want-FBI-to-hack-San-Bernardino-shooter-s-iPhone?cmpid=FB

    Like

  31. de Ingrunt Word February 20, 2016 at 4:08 PM #

    @David, maybe I am missing a key part of this very important topic re encryption and a government’s right to know. Or maybe I am doing it an injustice by stripping it to its bare fundamentals because the tech companies are wrong in my view.

    First of all it was always established law that the government has a right to invade our privacy if they have valid and concrete reasons to suspect we were conducting a criminal activity or some activity that contravened rules and regulations. There were clear steps that police officials had to take in order to do their inspection…a key one (in US surely) was getting a judge to approve a warrant.

    In modern times that had extended to inspect our cell phones, our cars and so on. Probable cause, warrants and all that.

    Now the Apple folks have designed a device with encryption for which they do not even have a key because they want to market their products as beyond the reach of ‘big brother’. This is all about ensuring their growth metrics continue to the stratosphere.

    So yes David its all about Money, money money. Of course the Justice Dept is right.

    I go back to my sci-fi ‘Hal’ example. How can we create technology and WE the humans do not have the ability to get in via some backdoor to resolve, destroy or modify.

    Yes I want my privacy but realistically I want more that the police can get details on my next door neighbor if there is valid suspicion that he is planning to destroy the neighborhood.

    Call me foolish but to live in society we have to accept that some folks are dangerous and we must be able to practically balance OUR rights against those of the greater society.

    Compare this to the arguments on gun control and those who vehemently defend the right of the average citizen to buy guns with large magazines and auto-fire options. Guns that were made specifically for fields of war and not domestic home environments.

    Those who want those weapons desire them because they are strident about the rights of the Constitution to bear arms. But where is the common sense.

    Same here in my view. Nothing wrong with very strong encryption. But something wrong if we can’t see why its necessary to be able to decrypt the data of some people.

    Will others get ensnared by that. Fah sure…but that a fundamental aspect of life. Peter invariably often has to pay for Paul….there is no way to avoid that unless we live on a deserted island of ONE.

    Like

  32. de Ingrunt Word February 20, 2016 at 4:12 PM #

    Well an island of two really and a two dogs. It gets lonely all by one’s lonesome!!!!

    Like

  33. ac February 20, 2016 at 7:13 PM #

    however one would suspect that the govt have technological gurus to unlock the phones, govt request to Apple was just a show of legalities

    Like

  34. Hopi February 20, 2016 at 8:59 PM #

    I wonder who Judge Sambo will copy from in order to render a decision now that Scalia is dead.

    Like

  35. Gabriel February 20, 2016 at 9:04 PM #

    Hillary got home by a few hairs in Nevada and Donald Duck leading the pack in SC with Fox News calling it for Trump,Cruz and Rubio.Bush,Kasick and Carson seem out of it.

    Like

  36. Gabriel February 20, 2016 at 9:13 PM #

    Meanwhile the Myanmar Times is indicating that the outgoing military backed government was opposed to any attempt to suspend the article in the constitution which bars Aung San Suu Kyi from assuming the presidency because her sons are foreign nationals.The sons were both nationals before but were denied subsequently by the same military.The plot thickens in Myanmar.

    Like

  37. David February 20, 2016 at 11:33 PM #

     

    Niel Harper's photo.

    Like

  38. Sargeant February 21, 2016 at 12:19 PM #

    Just heard Ted Olson (one of Apple’s lawyers) speaking on behalf of Apple’s right to not break into its phones to supply the Gov’t with info. For background Olson was Solicitor General in GW Bush’s cabinet whose wife was a passenger in the US plane which crashed into the Pentagon on Sept. 11 so he has a dog in the fight.

    What the US Gov’t is trying to do is unprecedented, they are asking a private company to use its engineers to develop software so that the Gov’t can peek into the lives of its citizens. It seems that all Gov’ts have to do is mention “national security” or “terrorism” and rational thought flies out the window as some people are prepared to bend over backward to be accommodating and in so doing relinquish fundamental rights.

    Like

  39. de Ingrunt Word February 21, 2016 at 12:54 PM #

    @Sargeant, really! Why are we allowing this specious argument “the US Gov’t is trying to do is unprecedented, they are asking a private company to use its engineers to develop software …” to WIN the day.

    APPLE created this predicament. APPLE are the culprits not the Government.

    Individual rights have been sacrosanct and are well protected by the US constitution. There are rules well defined to protect those rights.

    If Apple has created such an awe inspiring encryption that is unbreakable then kudos for them. The problem is not an overreach re rights as far as I can see because the law in that area is quite well settled and the US have the ‘FISA’ courts and as you noted ‘Nat Security’ claims to legally trump road blocks.

    The issue here is that the Gov’t is demanding access to Apple proprietary software in order for their gurus to employ their hack-attack skills to gain entrance to the encryption. Now that is a problem surely re Apple proprietary code and brings up a beehive of other issues which as far as my limited intelligence and knowledge tell me has very little to do with the current privacy rights laws.

    This is a whole different legal question in my view.

    Incidentally, how life and times change. I am glad you gave all a nice background reference for Olson. What you could also have added is that he would have been aligned as the principal legal DEFENDER of the ‘severe’ Patriot Act’ rules which came out after those attacks.

    Since then so many people have railed against the Act’s attacks on privacy rights.

    Amusing, for want of better word, therefore that Attorney Olson now in his private capacity has more than a mouthful to say for a client on the other side of the court ‘well’.

    Like

  40. David February 29, 2016 at 5:22 AM #

    Politico Agenda: Ultimately, Apple’s position will leave us less safe and restrict our civil liberties.

    How Apple’s fight with the FBI will hurt our privacy

    Like

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