A blow for bigotry: The Supreme Court demolishes the Voting Rights Act

By Michael J.W. Stickings

As you may have heard by now, the Supreme Court -- or, rather, the Supreme Court's right-wing majority, issued a ruling today that significantly undermines the efficacy of the Voting Rights Act:

The Supreme Court on Tuesday effectively struck down the heart of the Voting Rights Act of 1965 by a 5-to-4 vote, ruling that Congress had not provided adequate justification for subjecting nine states, mostly in the South, to federal oversight.

"In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics," Chief Justice John G. Roberts Jr. wrote for the majority. "Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were."

The court divided along ideological lines, and the two sides drew sharply different lessons from the history of the civil rights movement and gave very different accounts of whether racial minorities continue to face discrimination in voting. 

There was -- and remains -- good reason for such federal oversight.

What the Roberts-led majority is basically saying is that racial prejudice is a thing of the past ("the nation is no longer divided along those lines") and that the success in overcoming such prejudice means there's no longer a need for voting rights protections of the sort that were enacted back in the '60s as part of the broader civil rights movement.

Which is ridiculous.

Conservatives have been waging war on voting rights for a long time, by which I mean forever, and this is the blow they were waiting to strike.

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Is DOMA dead?

By Michael J.W. Stickings

Here's Lyle Denniston of SCOTUSblog, in line with most of the initial commentary after today's oral argument:

If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence. That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.

That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail. The only barrier to such a ruling, it appeared, was the chance – an outside one, though – that the Court majority might conclude that there is no live case before it at this point.

This would be very good news. DOMA is legislated bigotry that deserves to die.

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Supreme Court may dismiss Prop 8 case

By Michael J.W. Stickings

From the Times, it looks like a majority opinion may be emerging on the Supreme Court regarding the same-sex marriage case currently before it:

As the Supreme Court on Tuesday weighed the momentous question of whether gay and lesbian couples have a constitutional right to marry, six justices questioned whether the case, arising from a California ban on same-sex marriages, was properly before the court and indicated that they might vote to dismiss it. 

"I just wonder if the case was properly granted," said Justice Anthony M. Kennedy, who probably holds the decisive vote, in a comment that showed a court torn over whether this was the right time and right case for a decision on a fast-moving social issue.

Justice Sonia Sotomayor seemed to share that concern. "If the issue is letting the states experiment and letting the society have more time to figure out its direction," she said, "why is taking a case now the answer?"

This would hardly be the optimum outcome for same-sex marriage supporters such as myself. But it wouldn't be a bad one, and it may be the best possible one from this court. 

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John Roberts has long hated the Voting Rights Act

By Frank Moraes 

Something I really hate is how John Roberts is held up as some model of reasonable conservatism. I'm sure he will go down in history just like William Rehnquist: a man who was extremely conservative but is said to have been reasonable because the people who came after him were even more extreme. In the case of Roberts, Samuel Alito provides all the breathing room he could want.

Yesterday, the Supreme Court heard a challenge to the Voting Rights Act. All the conservatives justices (except Thomas who never says anything) were very aggressive in their questioning. In particular, Roberts asked, "Is it the government's submission that citizens in the South are more racist than citizens in the North?" This goes right along with what has become standard operating procedure for the conservatives on the court. This isn't a question; it is polemics in its purest sense. The question is not about citizens, although I suspect that yes, they are more racist. The bigger question is if there are systemic aspects of these systems that perpetuate racism in how voting is done. And after this last election where all kinds of clearly racist attempts were made to finesse the election, these questions shouldn't even need to be raised.

In fairness, the real question here is whether we should keep assuming that areas that were once overtly racist should be held to a higher standard. Should they have to get preapproval from the federal government before they change their voting laws. I wish we were going in the other direction: moving toward making all local governments get approval before changing the law. The way it now works, some place makes it harder for minorities to vote; they are slapped down about it later; but that doesn't change the skewed election results.

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Supreme Court to hear Prop 8 and DOMA cases

By Mustang Bobby

(Ed. note: For more on this, see my post from yesterday. My initial sense is that Chief Justice Roberts (who, I think, thinks about his and his court's place in history and how he and it will be perceived) will vote with the liberals and that marriage equality will win. Or the majority will punt, refusing to make any sort of definitive ruling. It's hard to see the justices collectively ruling that same-sex marriage is unconstitutional given recent dramatic shifts in public opinion and legislative action. -- MJWS)

The Supreme Court will hear arguments on both the Defense of Marriage Act (DOMA) and California's Prop 8. Here's some background on both cases:

The new California case, Hollingsworth v. Perry, No. 12-144, was filed in 2009 by Theodore B. Olson and David Boies, two lawyers who were on opposite sides in the Supreme Court's decision in Bush v. Gore, which settled the 2000 presidential election. The suit argued that California voters had violated the federal Constitution the previous year when they overrode a decision of the state's Supreme Court allowing same-sex marriages.

A federal judge in San Francisco agreed, issuing a broad decision that said the Constitution required the state to allow same-sex couples to marry. The decision has been stayed.

A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, also in San Francisco, affirmed the decision. But the majority relied on narrower grounds that seemed calculated to avoid Supreme Court review or, at least, attract the vote of the presumed swing member of that court, Justice Anthony M. Kennedy.

[...]

The second case the court agreed to hear, United States v. Windsor, No. 12-307, challenges a part of the Defense of Marriage Act of 1996. Section 3 of the law defines marriage as between only a man and a woman for the purposes of more than 1,000 federal laws and programs. (Another part of the law, not before the court, says that states need not recognize same-sex marriages from other states.)

The case concerns two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. The 1996 law did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000 that a spouse in an opposite-sex marriage would not have had to pay.

Ms. Windsor sued, and in October the United States Court of Appeals for the Second Circuit, in New York, struck down the 1996 law. The decision was the second from a federal appeals court to do so, joining one in May from a court in Boston. The Windsor case made its way to the Supreme Court unusually quickly because the parties had filed an appeal from the trial court’s decision in the case, which also struck down the law, even before the appeals court had ruled.

The two cases will go before the court by March with rulings expected by the end of June.

As expected, both sides are crowing that their side will win (JMG has a compendium of reactions), but since at least one request for a ruling by the Supreme Court came from the losing side, my instinct tells me that marriage equality will win.

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Distinguished conservative judge Richard Posner thinks Republicans are insane

By Michael J.W. Stickings

Said the Reagan appointee:

I've become less conservative since the Republican Party started becoming goofy.

"Goofy" is apparently Posner-ese for "fucking crazy."

And he suggested further that the right-wing attacks on Chief Justice Roberts since the Obamacare ruling last week may make Roberts, like himself, less conservative:

Because if you put [yourself] in his position... what's he supposed to think? That he finds his allies to be a bunch of crackpots? Does that help the conservative movement? I mean, what would you do if you were Roberts? All the sudden you find out that the people you thought were your friends have turned against you, they despise you, they mistreat you, they leak to the press. What do you do? Do you become more conservative? Or do you say, "What am I doing with this crowd of lunatics?" Right? Maybe you have to re-examine your position.

If only more conservatives would re-examine their position. Unfortunately, most conservatives aren't nearly as thoughtful and self-reflective as Judge Posner, and most prefer ideological extremism and/or partisan hackery to honesty and self-respect.

Supreme Court upholds (most of) Obamacare: The day the conservative dream (sort of) died

By Michael J.W. Stickings

So wait. What happened today? Sorry, I was too busy thinking about the universal health care system we have here in Canada.

Something about a court case?

**********

I'm kidding, of course.

Like many others, like many of you perhaps, I went through a sudden roller coaster of emotions when I heard the news.

Actually, when I read the headline at CNN.com, about the individual mandate being struck down, and then quickly learned, via the indispensable SCOTUSblog that, oops, CNN had gotten it wrong (as had Fox News, by the way), that in fact the Court had upheld (almost the entirety of) the Affordable Care Act, including the controversial (though only because Republicans have made a partisan issue of it, not because it really is) mandate, which the Court, with Chief Justice Roberts joining the liberals (or, more accurately, those who aren't right-wing ideologues engaged in a campaign of relentless judicial activism to undo American democracy) to form a 5-4 majority, held to be a tax and so constitutional.

Great news, I thought, particularly for the tens of millions of Americans who would have been denied coverage if the law had been struck down, but also for President Obama, for whom this has become a signature achievement of his presidency.

Romney, who of course signed into law the forerunner of Obamacare in Massachusetts and who was a strong advocate of progressive (if also market-oriented) health-care reform before he decided to run for president and so needed to suck up to the increasingly extremist Republican base, gloated last night that "they're not sleeping real well at the White House," but this was a significant loss for him, one that he was at pains to address today. He insists he'll work to repeal (and replace) Obamacare, but what he offered was not just red meat for the right but blatant dishonesty about what Obamacare actually does. (As Ryan Lizza writes, repeal would be highly unlikely under President Romney. It's all just Republican fantasy.)

Indeed, it's been a bad couple of weeks for him, what with the Court striking down most of Arizona's draconian anti-immigrant bill but leaving perhaps the worst provision in, the right of law enforcement to demand proof of citizenship/residency, which was just enough to hand the president a win as well as a significant campaign issue, as he can continue to campaign against Republican extremism on the immigration issue generally while backing Romney into a corner.

And of course it didn't help Romney that Obama also implemented, by executive action, the DREAM Act, a popular measure that will prevent the deportation of the children of undocumented immigrants. It was enough to get supportive words from the right-wing likes of Marco Rubio and Bill Kristol, and with it the president only solidified, if not expanded, his hold on the Latino vote, a key demographic that could swing the election.

On this issue, as on so many others, what we're seeing is a stark contrast between Obama's principled leadership and Romney's opportunistic dithering, and it's one that will no doubt be highlighted when the campaign gets underway in earnest later this summer and into the fall.

**********

As for today's ruling, as Richard wrote, a win is a win, and in a way it's as simple as that. For now at least, the president can claim victory -- and that justice was truly done.

And it's going to be tough for Romney to move forward, as the ruling reinforces the deep divide in the Republican Party between the absolutist right-wing ideologues to whom Romney has been sucking up and the somewhat less absolutist but still deeply ideological pragmatists who are running his campaign. While the ideologues are fired up over issues like immigration and health care, as on other social issues like abortion and, as we saw during the primaries, birth control, these are losing issues for Romney. He can't win independents and other swing voters in key states by playing so hard to the right. So what I suspect is that the more sensible people around him, including perhaps Karl Rove, are advising him to try to move away from these issues and back to the economy, where his only hope for victory can be found.

Which is to say, while there will continue to be much huffing and puffing from the right, it wouldn't at all surprise me if Romney himself didn't say much more about either immigration or health care and if his campaign went back to his meat and potatoes. If nothing else, what these past couple of weeks tell us is that Romney desperately needs to change the narrative, which has swung against him hard for the first time since he locked up the nomination.

Obama needs to do what he can to counter that effort, not least by talking about what the law, what his law, does. If he can finally sell it to the American people -- and we know its various elements are popular -- he'll benefit in November.

**********

Anyway, there's obviously been a lot of reaction, even a lot of intelligent commentary, in response to today's ruling, and I don't intend to add to the specifics here.

Generally, right now, I'm trying to focus on the positive, on the win. But it's not all good. Not at all.

Conservatives turned quickly on Roberts, now persona non grata among the partisan ideologues, but actually the majority ruling is troubling. For two reasons, one legal and one political:

Legal: As Jon Chait writes:

[F]ive justices ruled that the Affordable Care Act cannot be upheld under the Commerce Clause. This is a bizarre and implausibly narrow reading — if Congress cannot regulate the health-care market, then it cannot really regulate interstate commerce. By endorsing this precedent, Roberts opens the door for future courts to revive the Constitution in Exile.

But Roberts will do it by a process of slow constriction, carefully building case upon case to produce a result that over time will, if he prevails, rewrite the shape of American law. What he is not willing to do is to impose his vision in one sudden and transparently partisan attack. Roberts is playing a long game.

Which is to say, this ruling may actually turn out to be a significant defeat for the federal government, and for federal authority generally, long a target of the right, not least with respect to federal efforts to impose progressive reforms on anti-progressive states. (For more on the Commerce Clause, and its possible future, see Jon Cohn, who finds that perhaps, just perhaps, what Roberts did won't actually cause much constitutional harm. Greg Sargent makes the same point, arguing that it's really not a big deal.)

Political: In calling the mandate a tax, the Court is saying that Democrats voted for a tax. And that's rarely ever good politically, particularly during the crazy days of election season.

As Brian Beutler writes:

The Supreme Court's narrow decision to uphold the Affordable Care Act's insurance mandate as a valid exercise of Congress' taxing power has reignited a spin war over whether Democrats broke their pledge not to raise middle-class taxes, and whether they misled the public by insisting the mandate was not a tax during the contentious health care reform debate.

*****

Intent matters. And the Court essentially held that the law's authors created something that functions like a tax, but serves the purposes of a penalty.

But the GOP is weighing various repeal bills, including legislation to strip the mandate. The fact that the Court upheld the mandate on taxing power grounds will make it harder than it already would have been for vulnerable Democrats to vote against that measure.

The truth is actually quite nuanced (see Lyle Denniston for more), but when does that ever matter on the campaign trail? Look for Republicans to accuse Obama and the Democrats of imposing a new tax on the American people -- Dear Leader Rush is already leading the way -- and thereby try to score political points. It's a silly argument, but Democrats could very well find themselves on the defensive.

My quick response to the legal point is that I'm worried about what Roberts might be up to over the long haul while nonetheless celebrating the ruling, while my quick response to the political point is that it's manageable if Democrats leave the mandate aside (and avoid playing defence) and instead focus on all the good things the law does (and so go on offence, forcing Republicans to defend the indefensible status quo ante).

But while these are indeed serious matters that deserve our attention, let's pull this back to what really matters today: The Supreme Court, despite a conservative majority, voted to uphold not just one of the president's signature achievements but one of the most significant progressive reforms in U.S. history.

Whatever concerns we may have, that is reason enough to celebrate a huge victory over the forces of darkness.

Quote of the Day: Arlen Specter on Justices Roberts and Alito

By Michael J.W. Stickings

Ex-Republican Sen. Arlen Specter of Pennsylvania voted to confirm both John Roberts and Samuel Alito, but the outgoing Democrat, in his last speech on the Senate floor, rightly took aim at both:

The Supreme Court has been eating Congress' lunch by invalidating legislation with judicial activism after nominees commit under oath in confirmation proceedings to respect congressional fact finding and precedent.

Ignoring a massive congressional record and reversing recent decisions, Chief Justice Roberts and Justice Alito repudiated their confirmation testimony given under oath and provided the key votes to permit corporations and unions to secretly pay for political advertising -- thus effectively undermining the basic Democratic principle of the power of one person, one vote. Chief Justice Roberts promised to just call balls and strikes and then he moved the bases.

Specter was referring to the notorious Citizens United decision, a 5-4 ruling (with the conservatives, including Kennedy, with the swing vote, in the majority) that essentially opened to the door to unlimited corporate spending on election advertising. As Justice Stevens wrote in his dissent:

At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

In other words, the decision paves the way for the corporate takeover of American politics -- as if the system weren't already corporate enough.

Of course, Specter could not have known this when he voted for Roberts and Alito, but he knew full well that such right-wing judicial activism was likely. If nothing else, he should have known after Bush v. Gore that what drives conservative judges these days is not adherence to the letter of the Constitution, as they self-righteously claim, but adherence to a generally partisan right-wing agenda and to a view of the judiciary as a key instrument for enabling the implementation of that agenda.

Yes, Specter should have known this, and maybe he did, but at least he's saying the right things on the way out.

Supreme Court strikes down law banning depictions of extreme animal cruelty

By Michael J.W. Stickings

I'm all for free speech -- in fact, I consider myself a firm civil libertarian in this regard -- but some "speech" isn't really speech and shouldn't be free.

Take, for example, the case of videos depicting extreme cruelty to animals:

The Supreme Court on Tuesday forcefully struck down a federal law aimed at banning depictions of dog fighting and other violence against animals, saying it violated constitutional guarantees of free speech and created a "criminal prohibition of alarming breadth."

The 8 to 1 ruling, written by Chief Justice John G. Roberts Jr., was a ringing endorsement of the First Amendment's protection of even distasteful expression. Roberts called "startling and dangerous" the government's argument that the value of certain categories of speech should be weighed against their societal costs when protecting free speech. 

Again, I'm all for the First Amendment, but, to me, animal cruelty videos should be considered akin to child pornography:

The law was enacted in 1999 to forbid sales of so-called crush videos. They appeal to a certain sexual fetish by depicting the torture of animals -- cats, dogs, monkeys, mice and hamsters, according to Congress -- or showing them being crushed to death by women wearing stiletto heels or with their bare feet. While dog-fighting and other forms of animal cruelty are already illegal, Congress said the legislation was necessary to stop the production of videos for commercial gain.

What was Roberts' objection?

Roberts' opinion said the court was not passing judgment about whether a narrower statute limited just to crush videos and "other depictions of extreme animal cruelty" might be constitutional.

But the court said the legislation passed by Congress was far too broad. Anyone who "creates, sells or possesses a depiction of animal cruelty" for commercial gain can be imprisoned for up to five years. A depiction of cruelty was defined as one in which "a living animal is intentionally maimed, mutilated, tortured, wounded or killed."

Roberts wrote that the definition was so loose that it could include all depictions of wounding or killing animals, even hunting videos or magazines. He said the law's exemption for works of "serious religious, political, scientific, educational, journalistic, historical or artistic value" was not enough protection, and the court was not reassured by the government's argument that prosecutions were rare.

That's just silly. The law in question is clearly aimed at depictions of extreme animal cruelty, not depections of hunting (which I consider cruel but certainly not at the level of what is depicted in these "crush" videos). And so I actually find myself in agreement with Justice Alito, the lone dissenter:

He said the law was enacted "not to suppress speech, but to prevent horrific acts of animal cruelty." He said that the entire law need not be found unconstitutional, and that the "practical effect" of the ruling would be to spur production of crush videos, which opponents such as the Humane Society of the United States said had decreased with passage of the 1999 law.

As Wayne Pacelle, the head of The Humane Society of the United States, wrote at HuffPo, "[t]he Court got hung up in a stream of hypothetical scenarios, imagining that the law as worded might sweep up the sellers of hunting, bullfighting, and other videos that the federal lawmakers never intended to address." Furthermore:

Justice Samuel Alito dissented, noting that the majority has struck down "a valuable statute that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty -- in particular, the creation and commercial exploitation of crush videos, a form of depraved entertainment that has no social value." Justice Alito explained that "the animals used in crush videos are living creatures that experience excruciating pain. Our society has long banned such cruelty, which is illegal throughout the country."

With the Court issuing a disappointing albeit carefully crafted decision, it seems that Congress can step in and write a more narrowly tailored federal statute to prohibit the commercial sale of videos depicting extreme and illegal acts of cruelty. Clearly, it should not be legal to stage a dogfight in your basement and then sell the video of this criminal action. It is illegal to molest a child and sell a video of this sort of child pornography, and the same should be true for the most extreme and widely criminalized acts of animal cruelty.

With this ruling, a narrower statute is certainly necessary and ought to be enacted as soon as possible. Surely even ardent civil libertarians could get behind that.

And I would add this: While depictions of such animal cruelty ought to be banned, those who inflict the cruelty and those who party to it ought to face significant punishment under the law. There are laws in place, yes, but they are not nearly strong enough, and we ought to take the welfare of animals far more seriously than we do.

As for these disgusting "crush" videos, which I had no idea even existed before learning of this case, Alito is right, they are "a form of depraved entertainment that has no social value." But who are the utterly depraved individuals who make them, and who enjoy them? I realize that there is extraordinary depravity out there, and I realize that depravity is a matter of perspective (consider those ignorant bigots who think that homosexuality is depraved, for example), but surely there is a line than can be drawn. It is one then when consenting adults engage in certain activities with each other, quite another when children or animals or even adults who are in no position to consent are abused, tortured, and, in this case, killed.

There should be zero tolerance for such abhorrent behaviour.

Stuff to read (3/18/10): Obama, SCOTUS, Pakistan, and Glenn Beck

By Michael J.W. Stickings

Check these out, all highly recommended:

-- Media Matters: "The media myth of Obama's 'falling poll numbers'," by Eric Boehlert. Key quote: "Feeding off right-wing talking points, political journalists love to push the idea that Obama's polling numbers are in the tank and that he's fading fast. It's all part of the preferred, CW narrative that his entire presidency is slipping away. (It must now be 'save[d],' according to Newsweek.)"

-- The New Republic: "POTUS v. SCOTUS," by Jeffrey Rosen. Key quote: "In battles between a popular president and an anti-majoritarian Court, it's almost always the president who prevails. Using the Court as a punching bag puts Obama in the company of his greatest predecessors, Jefferson, Lincoln, and both Roosevelts -- all of whom bashed the Court for thwarting the will of the people. As long as he plays his cards carefully, Obama has much to gain from challenging John Roberts, and the Roberts Court has much to lose." (See also my recent post at HuffPo on the spineless chief justice.)

-- Der Spiegel: "The Football Stitchers of Sialkot," by Hasnain Kazim. Key quote: "The city of Sialkot in Pakistan produces as many as 60 million hand-stitched footballs in a World Cup year. The firms here are running out of new workers since child labor was abolished. Western buyers may have a clear conscience, but the children of Sialkot now toil in the local brickworks instead."

-- Chicago Sun-Times: "Jesus was a Nazi. So's your preacher," by Roger Ebert. The great film critic addresses Glenn Beck's attack on "social justice," including in a religious context, claiming it is code for both Communism and Nazism. Key quote: "Does Glenn Beck speak for average Americans? His logic indicates they must be attending churches that preach Communism and Nazism from the pulpit every Sunday. Why are they so slow to catch on? Now that Beck has alerted them, where can they flee to worship? What will become of them? They have been cast out into the wilderness, where nothing makes sense anymore. The lonely, barren, ignorant wilderness, silent but for the gnashing of Glenn Beck."

Teabagging Thomas: Ginni, wife of Clarence, links to Tea Party "movement"

By Michael J.W. Stickings

See, this is why Chief Justice Roberts's recent little hissy fit over being challenged by President Obama was so ridiculous. (Well, it's one of the reasons why. Basically, Roberts should grow a spine.)

According to Roberts, Obama shouldn't have criticized the Supreme Court -- or, rather, one of its decisions -- in his State of the Union address. Roberts found this "very troubling."

And yet, by his own actions (in speaking out the way he did), Roberts seems to approve of the chief justice of the United States criticizing the president of the United States publicly.

It would seem that the Supreme Court is so supreme, and the justices so spineless (or some of them, including Roberts), that it can dish out whatever it wants, even as it can't take any criticism in return. And what it dishes out is not judicial dispassion, detachment, and neutrality but ideology and a partisan agenda. We all know this, or should, and yet we cling to the myth of the non-partisanship of the Supreme Court. (Did Bush v. Gore tell us nothing?) Those of us who aren't on the right also know that the judicial activism of the right is far more of a nefarious reality than any such activism of the left. (They thought Sotomayor would make up the law? Hardly.) Would Roberts have openly criticized the man who appointed him, George W. Bush? Of course not. Because he's a Republican. Because they both are.

But it isn't just activism from the bench, it's direct political activism, or activism by a degree of separation. The L.A. Times reports:

As Virginia Thomas tells it in her soft-spoken, Midwestern cadence, the story of her involvement in the "tea party" movement is the tale of an average citizen in action.

"I am an ordinary citizen from Omaha, Neb., who just may have the chance to preserve liberty along with you and other people like you," she said at a recent panel discussion with tea party leaders in Washington. Thomas went on to count herself among those energized into action by President Obama's "hard-left agenda."

But Thomas is no ordinary activist.

She is the wife of Supreme Court Justice Clarence Thomas, and she has launched a tea-party-linked group that could test the traditional notions of political impartiality for the court.

In January, Virginia Thomas created Liberty Central Inc., a nonprofit lobbying group whose website will organize activism around a set of conservative "core principles," she said.

*****

"I adore all the new citizen patriots who are rising up across this country," Thomas, who goes by Ginni, said on the panel at the Conservative Political Action Conference. "I have felt called to the front lines with you, with my fellow citizens, to preserve what made America great."

I suppose Ginni Thomas has every right to be politically active like this -- assuming that she acts ethically, and that her husband does. But let's not pretend that Justice Thomas isn't fully behind this, supportive of his wife's political aims, and let's not pretend that he and his fellow conservative justices aren't often motivated by similar partisan political priorities.

And, of course, there is at least the appearance of potential conflict of interest here. As Attaturk writes, "[i]f such conflicts involved, say Ginsburg or Stevens, it would be screamed about on Fox News 23:54/7. Glenn Beck would cry himself into a dehydration coma..." True. It's all rather troubling.

But what's also troubling is Ginni Thomas herself.

-- Does she honestly see herself as "an ordinary citizen"? If so, she's deeply delusional.

-- And does she honestly believe that Obama has pursued a "hard-left agenda"? How do bailing out Wall Street, upping the war in Afghanistan, and promoting a compromise market-oriented health-care reform package that closely resembles what Republicans previously supported, including as a counter to Hillarycare back in the '90s, and that has alienated many progressives, including some of his most ardent supporters, amount to anything "hard-left"?

Clarence has long been thought to be a light-weight on the Court, if not thoroughly unqualified to be a justice. While that may or may not be true, it would seem that in the Thomas household it is Teabagger Ginni who is the intellectually lighter of the two.

Yes, John Roberts really is spineless

By Michael J.W. Stickings

As you may know, I'm a blogger over at The Huffington Post. I usually put up two posts a week there, most cross-posted from here (though often revised somewhat).

You can find my HuffPo page here. It includes my post archive.

Well, I cross-posted my Reaction post on the spinelessness of Chief Justice John Roberts there yesterday, and, well, it generated a lot of feedback, more than any of my previous posts. As of right now -- I'm writing this at 11:51 pm Thursday evening -- it has 180 comments, and it's been a steady rise throughout the day. Most of them, thankfully, are positive.

If you're interested in checking out that post, as well as the comments, you can find it here.

Alright, enough self-promotion. Let's get back to blogging.

A spineless chief justice: John Roberts and the denigration of American democracy

By Michael J.W. Stickings

If Chief Justice John Roberts can't take it, he should resign.

Roberts found it "very troubling" that President Obama would criticize the Supreme Court -- or, more specifically, a single ruling of the Supreme Court, and an awful one at that -- in his State of the Union address?

Last time I checked, the checks and balances outlined in the Constitution, the separation of powers of the three branches of government -- do not insulate the Supreme Court from criticism. The State of the Union wasn't "denigrated," as Roberts put it, and Obama didn't turn it into "a political pep rally." Of course, there was partisanship on both sides, but that's just the way Congress is. And no one forced Roberts to attend.

Now, I realize that the judiciary should be detached from such partisanship, and that perhaps the justices felt somewhat uncomfortable, and I certainly do not wish them to be partisan cheerleaders, and I do not want all of their rulings to be subjected to the partisan cauldron, but what is wrong with the president taking a position on a Supreme Court ruling and expressing that position in front of the justices themselves? Are they somehow so supreme that they mustn't be challenged to their faces?

And, indeed, what is troubling is not what Obama did but how the Supreme Court ruled. Robert Gibbs:

What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections, drowning out the voices of average Americans. The President has long been committed to reducing the undue influence of special interests and their lobbyists over government. That is why he spoke out to condemn the decision and is working with Congress on a legislative response.

The Supreme Court had its say. The people's representatives, including the top one, have every right to respond. Glenn Greenwald:

It's not actually a unique event of oppression or suffering to have to sit and listen to a speech where someone criticizes you and you can't respond that very moment (but are able, as Roberts just proved, to respond freely afterward).  Even in the State of the Union Address, it's completely customary for the President to criticize the Congress or the opposition party right to their faces, while members of his party stand and cheer vocally, and -- as the reaction to Joe Wilson's outburst demonstrated -- "decorum" dictates that the targets of the criticism sit silently and not respond until later, once the speech is done.  That's how speeches work.  Only Supreme Court Justices would depict their being subjected to such a mundane process as an act of grave unfairness (and, of course, Roberts' comrade, Sam Alito, could not even bring himself to abide by that decorum).

What makes Roberts' petty, self-absorbed grievance all the more striking is that this is what judges do all the time.  It's the essence of the judicial branch.  Federal judges are basically absolute tyrants who rule over their courtroom and those in it with virtually no restraints.  They can and do scold, criticize, berate, mock, humiliate and threaten anyone who appears before their little fiefdoms -- parties, defendants, lawyers, witnesses, audience members -- and not merely "decorum," but the force of law (in the form of contempt citations or other penalties), compels the target to sit silently and not respond.  In fact, lawyers can be, and have been, punished just for publicly criticizing a judge.

*****

Supreme Court Justices, in particular, have awesome, unrestrained power.  They are guaranteed life tenure, have no authorities who can sanction them except under the most extreme circumstances, and, with the mere sweep of a pen, can radically alter the lives of huge numbers of people or even transform our political system (as five of them, including Roberts, just did, to some degree, in Citizens United).  The very idea that it's terribly wrong, uncouth, and "very troubling" for the President to criticize one of their most significant judicial decisions in a speech while in their majestic presence -- not threaten them, or have them arrested, or incite violence against them, but disagree with their conclusions and call for Congressional remedies (as Art. II, Sec. 3 of the Constitution requires) -- approaches pathological levels of vanity and entitlement. 

Brilliantly put.

Roberts should be strong enough to take some of his own medicine, and should grow a spine. But he should also start respecting the constitutional and political system of which he is an integral part, a system that prescribes and protects the independence of the judiciary but that does not put it on a platform above the democratically elected, shielded from any and all direct criticism.

That's just the American way, whether he likes it or not.

BREAKING NEWS: Chief Justice Roberts will not be retiring

By Michael J.W. Stickings

That's right, contrary to earlier reports, John Roberts will not be stepping down as chief justice.

Alas.

Explanation here. It seems a Georgetown Univ. law professor told his class this morning that Roberts would be resigning. His students, as you might well imagine, spread the news via text, IM, etc., and it went sort of viral.

As it turns out, the "eccentric" professor was just trying to make a point about "the credibility and reliability of informants," as one student explained. Halfway through the class, the profesor "revealed that the Roberts rumor was made up to show how someone you ordinarily think is credible and reliable (ie a law professor) can disseminate inaccurate information."

(Indeed.)

By the time the truth was out, it was too late.

If nothing else, this story shows just how quickly information, correct or not, can spread in an age of almost universal interconnectedness and media accessibility, in an age of social networking and individual empowerment. (All of which is more bad than good, I would say, despite all the problems, which I won't delve into here.)

It's just too bad it was all a joke.

Obama takes the oath... again

By Michael J.W. Stickings

Yes, because Chief Justice Roberts flubbed it, screwing up the one job he had to do, because he and Obama just weren't on the same wavelength, and because idiots like Fox News's Chris Wallace made a big deal of the error and asked if Obama really was the president, even though he was, already, at noon on Inauguration Day, before he even swore on the Lincoln Bible, and because some "experts" thought it might be a good idea, and because of "an abundance of caution," as White House Counsel Greg Craig put it, and simply because the issue had to be put to rest, Obama took the presidential oath again, tonight, this time at the White House, presumably with Roberts not screwing up.

Okay. Can we move on? It's over.

Screwing up the oath

By Michael J.W. Stickings

It was Chief Justice Roberts, not President Obama, who messed up the oath, flubbing his part. He put "faithfully" in the wrong place and said president "to," instead of "of," the United States.

Blitzer: "John Roberts had one job to do today and he sort of screwed up."

Yup.

Benen has more.

Iowa thinking

By Creature

As Walter Shapiro points out today in Salon, tonight is make or break for John Edwards. Since '04 he has banked on Iowa to propel him forward in this race and for the sake of competition, diversity, and choice, I hope he prevails. Without a victory in Iowa the likes of Chris Matthews will destroy him. I am not backing Edwards formally, but I do root for the underdog, especially when that underdog carries a blue-collar message. Obama may inspire me to hope, but Edwards inspires me to fight. I, for one, hope he wins tonight so he can fight another day.

(Cross-posted at State of the Day.)

Top Ten Cloves: Things overheard on first day of Supreme Court

News Item: US Supreme Court starts new term

By J. Thomas Duffy

10. We might have to do something this term... I think, while we were on vacation, the NSA was tapping my phone.

9. Hey, even if we don't have a case in front of us, can we rule against Hillary Clinton, and ban her from using that laugh?

8. Should we leave room on the calendar for Britney Spears?... I mean, if she comes in here not wearing any panties, she's got my vote.

7. Anybody check the news? The President didn't declare any of us dead, like he did with Mandela, did he?

6. Hey, let's fuck with the Congress this year... We don't reach any decisions... We just issue, non-binding "Senses of the Supreme Court."

5. If Roberts has another one of his siezures, and, God-forbid, anything happens, I got dibs on his office.

4. If we get the Isiah Thomas case, I think Clarence, and Ruth, should recuse themselves... Just to play it safe.

3. That was a nice touch by the Chief Justice... Giving us all Welcome Back gifts... Bongs in the shape of a gavel.

2. I just heard they're replacing our Secret Service details with Blackwater guys.

1. No Clarence, even with the discount, I don't want to buy your book.

Bonus Nine-In-Black Riffs

White House Stresses Roberts' Wife "Not A CIA Agent"; No Knowledge of WMD's; No Plans To Send Husband To Niger

Congress Getting "Weary" Of Roberts' Visits; Senators Feeling Stalked; Roberts Relentlessly Using Meet-and-Greets To Boast Chances

Scalia: "No Pink Robes Needed Here"; Conservative Justice Reacts To Roberts Disclosure On Gay Rights Case; Justice Roberts Sunday In The Making


















(Cross-posted at The Garlic.)