Archive for the Supreme Court Category

The Double Ought (00) “Decadent Decade” (January 4, 2010)

Posted in Afghanistan, Bailout/Bribe, Bernanke, Bush, China, Congress, Debt/Deficits, Economics, Federal Reserve, Foreign Policy, Greenspan, Health Care, Housing, Iraq, O'Bama, Presidency, Supreme Court on January 4, 2010 by e-commentary.org

1999:  No major wars yet percolating problems in a dozen venues; budget deficit surplus of about 236 billion dollars, although Bush inherited about a 5.7 Trillion dollar National Debt; and a boiling but unstable and slowly cooling economy.

The decade that threatened to come in with a bang sauntered in with only the traditional fire works.  Y2K may have been such an epic universal non-event because everyone realized that it was a real deadline that could neither be disregarded nor overlooked.  It was not Y2.001K.  Problems were timely addressed in a timely manner in time.  That was not the attitude for the remainder of the decade.

An outwardly non-descript and largely unknown bumbling scion who had been shepherded by others for their own purposes through an uneventful life was appointed by the Supreme Court to run things.  The ship of state sailed uneventfully for a time.  A written invitation to impending disaster delivered to and disregarded by the White House in August, 2001 was honored in September, 2001 by a quartet of airships.  The course of action was simple.  Know who we are and remain faithful to who we are.  Stay our course.  Redouble our vigilance and redouble it again (and redouble it one more time).  Too many in power and influence in the country lost their heads.  Leadership was non-existent.

A perfect storm.  An obscenely incompetent President, a flagitious and arrogant vice-President, a smug, bungling and petulant Secretary of War/Defense (Rumsfeld), hamstrung Secretaries of State (Powell and Rice), a mendacious Secretary of the Treasury in the second term (Paulson), a marginal Attorney General (Gonzales) and their ilk were not the Dream Team.  The damage they inflicted in the decade will take decades to repair.

Bush proclaimed that WeMaD (Weapons of Mass Destruction) and almost everyone joined in the madness.  No one ever made a compelling case for the invasion of Iraq.  The national press (WP, NYT and so many others) yearned for war, any war, just give us a war with photo ops and film at eleven.  The major television networks (NBC, CBS, ABC, Faux) were thrilled and went wild with glee.  It was a time, the only time, to watch their coverage non-stop to bear witness in real time to the folly and the madness.  The few dissenting voices (Warren Strobel and Jonathan Landay with Knight Ridder’s Washington Bureau, Terry Gross and guests with NPR/Fresh Air, Walter Pincus with the WP and a few dozen other courageous individuals) did not reach a wide audience.  They were voices in the darkness.  The Iraq quagmire is the greatest foreign policy blunder in American history.

Deficit spending and economic looting became the national pastimes.  Almost everyone involved in directing and controlling the economy (Reagan, Gramm and Rubin in earlier decades with the assistance of Bush, Greenspan, Paulson, C. Cox, Geithner, Summers and others in this decade) almost without exception (Brooksley Born and a few others) were committed to undermining the American economy at every opportunity for the benefit of a few.  One must concede that they succeeded handsomely.  Although they are domestic economic terrorists, their activities never became the subject of the vaunted “war on terror.”  No one ever made a compelling case for the bribery and bailout of Wall Street.  Bernanke* remains the enigma, the outsider and the ultimate insider, who did not recognize what was obvious before and after he became Chairman in February, 2006 and disregarded the advice of his colleague Edward Gramlich.

The first African-Irish-American was elected President.  There were a few things they did not tell him before he got elected that he learned quickly after he got elected.  He re-nominated Bernanke* to run the Federal Reserve which may be the only option given the limited economic talent in America.  His appointments to date are adequate, yet the administration is still seeking traction and direction.  Health care is becoming his domestic economic quagmire.  Although it is not really the job of the government to provide jobs and/or homes, the populace wants a job to go to during the day and a house to come home to at night.

About the House.  And the Senate.  Congress could be declared a natural disaster area.  The Republicans are useless, the Democrats are not particularly useful.  Forty-five percent of Americans respond to and are motivated by fear and loathing; the Republicans know and stoke their base.  The Republicans may make great strides in the November elections.  The party committed to destroying government may again be given that opportunity.

The nine members of the Supreme Court are more myopic and narrow-minded than just about any other Court in the history of the Republic.  The Court sports two religions (with one exception), two schools (with one exception), and two (mas o menos) schools of thought (with a few exceptions), yet it has two women, too.  The war at the Court and for the Court continues.  O’Bama may have an impact, although the impact of the economy on O’Bama’s future will greatly impact his impact on the Supreme Court.

The profit-maximizing universities in America should be part of the solution, but they are part of the problem; they may be more accurately described as part of the process and the processing.  They recruit, train and drill the next McNamaras and Rumsfelds.  To their credit, they adhere to a thirty-year business plan rather than the three-month strategy pursued by other businesses.

The information made public in the National Intelligence Reports over the decade patiently and exhaustively chronicles the decline of America’s role in the world after six decades of preeminence.  America has done much wrong during that time, yet America has done far, far, far more good, often with resentment and usually without thanks.  On balance, everyone is better off with the United States as the dominant superpower.  This is China’s century.

Now:  Multiple wars, battles, skirmishes and police actions with two major foreign base camps (Iraq and Afghanistan); massive and growing deficits and about a 12.3 Trillion dollar National Debt; zero private-sector employment gain and zero economic gain for the average family over the decade; and no industry to inflate other than the federal government industrial complex.

[See the “e-ssays” dated Jan. 5, 2009 titled “The Millennium to Date”; dated October 6, 2008 titled “A Bleak Day:  The Trillion Dollar Tragedy”; dated September 29, 2008 titled “Futile Efforts”; dated May 4, 2009 titled “Picking the Supreme Beings”; dated May 14, 2007 titled “Term Limits”; and dated Jan. 30, 2006 titled “Greenspan’s Legacy:  Apres moi, Le Meltdown.”]

Bumper stickers of the week:

The Recession is Over.

The Recession is Over; Let the Depression Begin

Halcyon Ano Nuevo

Picking the Supreme Beings (May 4, 2009)

Posted in Supreme Court on May 4, 2009 by e-commentary.org

Justice Souter is leaving the Supreme Court to pursue loftier pursuits (hiking, reading, apple core eating).  Every Justice on the current Supreme Court served on the federal courts of appeals.  Almost everyone today on the federal courts of appeals who is not on life support keeps an updated catalog of Supreme Court robes and bling-bling in the right hand drawer of his or her desk.  They all have mastered the requisite arrogance and condescension.  The current Supreme Court is myopic, disconnected, ideological and unaware of the challenges confronting ordinary citizens in their daily lives.  What the Court needs today is a real live practicing lawyer and an intellectual.  Those requirements may require two openings.

Bumper sticker of the week:

Equal Justice For Some Under Law

The Millennium To Date (January 5, 2009)

Posted in Congress, Presidency, Supreme Court on January 5, 2009 by e-commentary.org

When presented with a defining challenge this Millennium, each branch of government failed.

2000 – Judicial.  Eight years ago, the Supreme Court in Bush v. Gore decided that it not the voters will decide who is to be President.  The Supreme Court elected to appoint the President and preempt the voters.  The court issued a special decision to benefit one person.  An unprecedented decision has set a bad precedent.  The composition and ideology of the Supreme Court is even worse today.

2001 – 2003 (and continuing) – Executive.  Bush and Cheney came into office committed to invading Iraq.  After being warned in a daily briefing in August, 2001 that “Bin Laden Determined To Strike In U.S.,” no one thought to interpret the report to suggest that Bin Laden was determined to strike in U.S.  Bush left for Crawford to clear bush and brush.  When 9/11 occurred, the pretext for invasion arose even though neither Iraq nor any Iraqis were involved in the planning, implementation or funding of the 9/11 attacks.  His decision to invade lit a fuse that will be seen to have triggered the start of World War III.  Now Bush/Cheney are seeking to rewrite history to suggest that the intelligence that they and others actively distorted was provided by others.  For its part, Congress cravenly went along enough to provide Bush with political cover.

2007 – Legislative.  The Bailout/Bribe Bill was predictable and predicted.  Scare the public and you can get anything.  Paulson appointed himself King, raided the fisc, and gave money to fiends and former colleagues.  The Debt is exacerbating intermediate and long term economic problems in ways that the business and economic commentators do not seem to understand.  Bush more than any other person is responsible for the “Bush/Greenspan/Gramm Depression.”  Nonetheless, Congress has been a co-conspirator and an economic enabler.

One hopes that Clio is taking careful notes.

Bumper sticker of the week:

Blind faith in bad leaders is not patriotism.

The Supreme Court On Drugs (June 25, 2007)

Posted in Drugs, Law, Society, Supreme Court on June 25, 2007 by e-commentary.org

“This is your Supreme Court.  This is your Supreme Court on Drugs.”  In Morse v. Frederick, 551 U.S. ___ (2007), some members of the Supreme Court revealed that they are on drugs.  The facts in the case are inane.  An undisputed adult (over 18 years of age) in Juneau, Alaska raised a vacuous sign to attract attention to him while some parade came through town.  How distinctly American.  DON’T TREaD ON ME or BONG HiTS FOR JESUS or something like that.  What it says isn’t exactly clear.  The Jesus reference must mean that it is a protected religious statement.  “Big whoop,” was the typical reaction of most of the kids.  The school principal reacted by over-reacting.  Let the motivated lad experience his 15 seconds (or 1.5 seconds) of fame.  Go on with life.

Not in America.  Roberts is the fellow who employed a Republican baseball analogy when he bamboozled the Senate Judiciary Committee at his confirmation hearing.  He talked about playing the role of an umpire and neutrally calling balls and strikes.  He lied.  In another decision issued today that involves the rights of the wealthy to spend unlimited amounts of money on elections, Umpire John announced that when the “First Amendment is implicated, the tie goes to the speaker,” Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U.S. ___ (2007) (slip op., at 21) and that “when it comes to defining what speech qualifies as the functional equivalent of express advocacy…we give the benefit of the doubt to speech, not censorship.”  ( Id. at 29).  The tie, if it was even close, should have gone to the speaker in Juneau.  Thomas makes some compelling statements about the lack of order, respect and discipline in schools today, but the observations have nothing to do with the case.

The Court expresses solicitude for the kids and their vulnerable adolescent sensitivities.  What some of the Supremes are unable to fathom let alone even comprehend is that kids in their teens are especially sensitive to hypocrisy and dishonesty and condescension and arrogance in adults.  Hypocrisy and dishonesty are among the very traits that define adulthood in America.  The case allowed a few Justices with far too few life experiences to write essays revealing their fears and demons and anxieties.  Dope is not good; booze is far, far, far worse.  Don’t confuse the issues.  It was a simple First Amendment case.  Don’t be hypocritical and dishonest and condescending and arrogant.  You are not paid by the word.  The Ninth Circuit decision could have been upheld in a few paragraphs.  The principal should have been afforded qualified immunity under the circumstances; running a school is a thankless task.  The Court’s new First Amendment test is two-fold:  1) who is making the expression and 2) what is being expressed.  That is not what the Founding Fathers intended.

Bumper sticker of the week:

Celebrate the right to give offense

Et tu, Bobby? (June 11, 2007)

Posted in Law, Society, Supreme Court on June 11, 2007 by e-commentary.org

Et tu, Bobby?  Bobby Bork filed a frivolous lawsuit?  Tell me it isn’t so.  It is so.  So hypocritical and dishonest and unseemly.  His frivolous lawsuit is even a matter of public record.  In print.  In black and white.  You could look it up.  He actually filed a lawsuit in federal court.  And demanded to mulct the defendant for punitive damages.

There he was making the big bucks on the lecture circuit discussing the number of frivolous lawsuits filed in America each year.  Bork claims in his frivolous lawsuit that when he tried to approach the lectern, he found no stairs to climb onto the dais which was of “unreasonable height.”  The sneer quotation marks are his.  That’s a no brainier, as they say.  If it is unreasonable to act, don’t act unreasonably.  Don’t mount the dais.  Everything that happens from that time forward is Bob’s fault.

Bork was defeated for the Supreme Court twenty years ago.  He is one of the darlings of the Federalist Society which believes that too many frivolous lawsuits are filed each year.

The federal judge handling his case should show Bobby the respect he does not appear to show himself.  Put him out of his misery and shame.  Dismiss the lawsuit and address serious matters.

Bumper sticker of the week:

Stop Frivolous Lawsuits

We Will Get Fooled Again (April 30, 2007)

Posted in Supreme Court on April 30, 2007 by e-commentary.org

We did get fooled again.  John Roberts, under oath before the Senate Judiciary Committee, stated that he would be an impartial umpire calling balls and strikes at the plate.  He mouthed support for the doctrine of stare decisis – the doctrine that when a court has once established a principle of law as applicable to a state of facts, the court will adhere to that principle and apply it in all future cases where the facts are substantially the same.  He pined for stability in the law.  Alito made the same representations.  Under oath.  They lied.  It is the American way.  The recent abortion case, Gonzales v. Carhart, 550 U.S. ___ (2007) is not substantively different than Stenberg v. Carhart, 530 U.S. 914 (2000).  An honest Supreme Court could have issued a one-page or even a one sentence decision citing the earlier precedent. Instead, Kennedy and kin disregard precedent, mistate the proper and settled legal standard of review, pat the little ladies condescendingly on the head, and do violence to truth and precedent.  Another day at the office.

Bumper sticker of the week:

I’m Pro-Choice About Everything

The Kennedy Court Reigns In the King (July 3, 2006)

Posted in Law, Supreme Court on July 3, 2006 by e-commentary.org

A few days before the celebration of our independence from King George III, some of the Justices who appointed King George II reigned in the Emperor.  In Hamdan v. Rumsfeld, the Supreme Court ruled that some of the military commissions created by Bush had been improperly constituted. 

The health of the Constitution now turns substantially on the health of a Justice who is turning four score and seven years young next April.  Justice Stevens grew or emerged on the job.  Justice Kennedy is the lynch pin on the Court.  He is the real Decider who has grown and emerged on the job.  Chief Justice Roberts and Justice Alito are showing fealty to the one who appointed them.  The Four Justices of the Apocalypse–Roberts, Scalia, Thomas and Alito–would be satisfied to recess the Court for good and let all three branches of government receive mail at and take direction from 1600 Pennsylvania Avenue

Happy birthday to this very good Republic. 

“A Man’s Home Is His Gated Community” (April 10, 2006)

Posted in Housing, Law, Society, Supreme Court on April 10, 2006 by e-commentary.org

“A man’s home is his castle.”  This maxim reflects a fundamental social and economic compact in Anglo-American law.  All of us agree to treat each other’s home as if it were a castle which frees each of us to do something more productive than to defend one’s home 24/7/365.  A land of fortified castles is far less efficient and creative than a land of homes and businesses respected by all of us.

The recent Supreme Court case of Georgia v. Randolph, 547 U.S. ___ (2006), threatened to depart in a small way from this cornerstone of the Constitution.  The Court addressed whether the police can search a home without a warrant when one occupant gives consent but another objects.  The wife allowed the police to enter and search the home despite the objection of her husband who co-inhabited the residence.  Other prior cases had allowed the police to enter if consent was given by the one inhabitant who was present.  By a 5 to 3 decision, the Supreme Court rejected the search as unreasonable under the Fourth Amendment and invalid as to him.  A man’s and a woman’s home is their castle not just his or her castle.

Some of those who are concerned about crime seek to expand the “castle doctrine,” a corollary to the “castle rule” that allows a person to use force including deadly force to protect oneself and others from attack.  There is a countervailing “duty to retreat” under some circumstances.  The “castle doctrine” has been expanding in recent years to allow one to pursue a possible assailant.  The legislatures and courts must balance these concerns with care.

Gated communities are expanding in many regions of the Republic.  The communities represent a rejection of the “castle compact” and a return to castles with gates and guards rather than draw bridges and moats.  The denizens have their own private McFortress within the larger compound.  They send their kids to private schools in equally guarded enclaves detached from the public.  Their shelters shelter them from ordinary activities.  The reaction is not entirely surprising in the face of criminal activity.  However, the moated communities are changing the landscape and lifestyle of America.

California Prisons Explode Again (February 13, 2006)

Posted in Law, Politics, Prison/Criminology, Supreme Court on February 13, 2006 by e-commentary.org

Almost a year after Johnson v. California was issued by the Supremes, the California prison system exploded again.  [See the February 28, 2005 e-ssay entitled “The Courts, the California prison experiment and the Y Chromosome.”]  Prisoners fight and fornicate.  The legal issue is black and white (and brown).  Prisoners of all stripes uniformly requested to be segregated.  The jury has spoken.  Respect the jury.  Separate the prisoners.

Federalism Distorted (February 6, 2006)

Posted in Law, Politics, Supreme Court on February 6, 2006 by e-commentary.org

Federalism questions – those involving the interplay of federal and state law – are determined by ideology not principle or doctrine.  When a state desires to allow a citizen to use medical marijuana, the Right embraces federal law limitations to preclude individual choice because the Right dislikes dope.  When a state offers to allow and regulate assisted suicide, the Right embraces federal law limitations to preclude individual choice because the Right decides who gets to decide.  However, when the federal government respects a fundamental right that is anathema to the Right’s agenda, the Right disregards the commerce clause and other constitutional safeguards and embraces states’ rights to trump the federal provision and rights.  These are the rules of the game.  The rule of law has been replaced by the law of rules.