Prometheus 6

A formal, grammatical analysis will no more settle the matter than will a lexical analysis. Only by putting a background intention firmly in place can one stabilize a text that (like all texts) varies with the purpose assigned to it. That is why each side hears the other’s interpretation as “grotesque” or “strained.” Reading within different assumptions of the framers’ intention, they see different texts and cannot understand how anyone could miss what is to each of them so differently clear.

Meanwhile, the Constitution is perfectly clear about the purpose of the document and every statement therein.

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

What Did the Framers Have in Mind?

Whatever side of the Second Amendment controversy you may be on, the clear winner in District of Columbia v. Heller (striking down a Washington, D.C., ban on hand guns) was intentionalism, the thesis that a text means what its author or authors intend.

The text in dispute is 27 words long, and it is cited in the opening pages of each of the three opinions: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” None of the words in this sentence is esoteric and the syntax is straightforward; but if textual simplicity were sufficient to determine meaning, there would be no reason for 157 pages of close legal and linguistic argument.

the field negro is not happy with the the D.C. gun ban decision. It looks like his crew disagrees...like most Black folks I know, everyone wants a gun because everyone has a gun. But one person said

Your argument goes only half way (the easy half). Many people would LOVE to see guns gone from our society.

TELL US YOUR PLAN FOR REMOVING THEM.

Its easy to sit back and say "guns are bad, more guns are worse" A little harder to have a workable plan to take them away.

Here's a physical fact. You can't take everyone's guns away. You have to just put that thought out of your mind. At this point, all you can do is mitigate the damage. Two methods come to mind: economic incentives and personal responsibility.

First, the economic incentives.

Next time the cops shoot a brother because they "think he has a gun," it automatically becomes a federal case. Because the brother has the right to have that gun.

"The blockbuster cases, the really big cases, have now brought into very sharp focus how closely divided the court is on the really large and philosophically charged issues before the court," said Charles J. Cooper, a Washington lawyer who was an official in President Ronald Reagan's office of legal counsel.

It has cast "the sharpest possible focus how important the court is going to be, I should think and should hope, in the upcoming election debate," Cooper added.

This was intentional. The Supreme Court decisions this session have been so much salami slicing, opening doors for Conservative activist-selected bad cases.

A Win by McCain Could Push a Split Court to Right
By Robert Barnes
Washington Post Staff Writer
Sunday, June 29, 2008; A01

For much of its term, the Supreme Court muted last year's noisy dissents, warmed to Chief Justice John G. Roberts Jr.'s vision of narrow, incremental decisions and continued a slow but hardly steady move to the right.

But as justices finished their work last week, two overarching truths about the court remained unchanged: It is sharply divided ideologically on some of the most fundamental constitutional questions, and the coming presidential election will determine its future path.

Nice discussion of Obama's and McCain's disparate economics positions. What struck me, and made me snatch up the clip for posting, was that the next President will appoint four governors of the Federal Reserve Bank in 2009 and the Chairman in 2010.

That's in addition to 3-4 Supreme Court judges.

It's seriously no time to be fucking around with McCain, people...

They should be banned from writing about the Supreme Court.

Protecting employees from retaliation makes sense, but it is not the province of judges to create such protections on the basis of their own beliefs of what is right or wrong, or even on the basis of their intuitive sense of what Congress meant to do or should have done.

They didn't decide the case based on their own beliefs. It was based on established precedent.

Held: Section 1981 encompasses retaliation claims. Pp. 2-14.

...the supposed distinction between activist liberals and color-inside-the-constitutional-lines conservatives is not only phony but often backward. In its first 200 years, the Supreme Court struck down fewer than 130 acts of Congress; in the past 13 years, it has overturned more than 30, including a piece of McCain's signature campaign-finance law. This behavior is hardly the "humility" McCain argues should be restored to federal courts.

Last year, the court told school districts that they could not adopt voluntary integration plans that use race as a factor in assigning students. Talk about legislating from the bench. I don't recall McCain complaining then that the court was intruding "on policy questions that should be decided democratically." 

High Court Caricature
By Ruth Marcus
Wednesday, May 14, 2008; A19

The court stepped in, summarily overturning laws in 16 states. Tossing aside evidence that the constitutional provision was never intended to apply to the situation at hand, the court instead looked to what it grandly described as the "broader, organic purpose of a constitutional amendment."

Another example of "unelected judges" demonstrating "little regard for the authority of . . . the states" and "even less interest in the will of the people"? Of judges, unconstrained by constitutional text or history, turning to " 'emanations' . . . and other airy constructs the court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning"?

McCain Will Seek Judges Like Roberts, Alito
By REUTERS

Filed at 6:15 a.m. ET

WINSTON-SALEM, North Carolina (Reuters) - Republican presidential candidate John McCain said on Tuesday he would appoint judges in the mold of conservatives John Roberts, Samuel Alito and former Chief Justice William Rehnquist if he were elected in November.

In an excerpt from a speech McCain was to give in Winston-Salem on Tuesday, the Arizona senator said he would "look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint."

"I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference," McCain said.

Isn't it curious how every Republican's favorite justices so misrepresented their intent? 

Justices Antonin Scalia and Clarence Thomas, for example, told the Senate that they had strong respect for Supreme Court precedents. On the court they were the justices most likely to vote to overturn those precedents.

How to Judge a Would-Be Justice

It is hard to imagine a more solemn responsibility than confirming the nomination of a Supreme Court justice. And we have worried, especially in recent years, that nominees are far too carefully packaged and coached on how to duck all of the hard questions.

A new study supports our fears: Supreme Court nominees present themselves one way at confirmation hearings but act differently on the court. That makes it difficult for senators to cast informed votes or for the public to play a meaningful role in the process.

The title of the WSJ article is "Mr. Constitution," as if Thomas is really committed to the constitution, while other justices vote their personal preferences....

The point instead involves a major irony of the modern era: Those who insist that they are speaking neutrally for "the Constitution" are often more, not less, likely to read their own political convictions into constitutional law.

Clarence Thomas Is Not 'Mr. Constitution'

The Wall Street Journal has a remarkable interview with Clarence Thomas, available here. In the interview, Thomas states his fidelity to the Constitution "as it's drafted."

In context, it seems clear that Thomas means to follow the original understanding of the document (though he resists the term "originalism") The real point is that he is a neutral interpreter. "Maybe I am labeled as an originalist or something, but it's not my constitution to play around with. Let's just start with that. We're citizens. It's our country, it's our constitution. I don't feel I have any particular right to put my gloss on your constitution. My job is simply to interpret it."...

Supreme Court Inc.
By JEFFREY ROSEN

I.

The headquarters of the U.S. Chamber of Commerce, located across from Lafayette Park in Washington, is a limestone structure that looks almost as majestic as the Supreme Court. The similarity is no coincidence: both buildings were designed by the same architect, Cass Gilbert. Lately, however, the affinities between the court and the chamber, a lavishly financed business-advocacy organization, seem to be more than just architectural. The Supreme Court term that ended last June was, by all measures, exceptionally good for American business. The chamber’s litigation center filed briefs in 15 cases and its side won in 13 of them — the highest percentage of victories in the center’s 30-year history. The current term, which ends this summer, has also been shaping up nicely for business interests.

I visited the chamber recently to talk with Robin Conrad, who heads the litigation effort, about her recent triumphs. Conrad, an appealing, soft-spoken woman, lives with her family on a horse farm in Maryland, where she rides with a fox-chasing club called the Howard County-Iron Bridge Hounds. Her office, playfully adorned by action figures of women like Xena the Warrior Princess and Hillary Rodham Clinton, has one of the most impressive views in Washington. “You can see the White House through the trees,” she said as we peered through a window overlooking the park. “In the old days, you could actually see people bathing in the fountain. Homeless people.”

Conrad was in an understandably cheerful mood. Though the current Supreme Court has a well-earned reputation for divisiveness, it has been surprisingly united in cases affecting business interests. Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting votes. Conrad said she was especially pleased that several of the most important decisions were written by liberal justices, speaking for liberal and conservative colleagues alike. In opinions last term, Ruth Bader Ginsburg, Stephen Breyer and David Souter each went out of his or her way to question the use of lawsuits to challenge corporate wrongdoing — a strategy championed by progressive groups like Public Citizen but routinely denounced by conservatives as “regulation by litigation.” Conrad reeled off some of her favorite moments: “Justice Ginsburg talked about how ‘private-securities fraud actions, if not adequately contained, can be employed abusively.’ Justice Breyer had a wonderful quote about how Congress was trying to ‘weed out unmeritorious securities lawsuits.’ Justice Souter talked about how the threat of litigation ‘will push cost-conscious defendants to settle.’ ”

A Verdict for Workers, for a Change

The Supreme Court ruled last week that a group of employees suing for age discrimination should get their day in court even though they filed their complaint on the wrong form. The decision is noteworthy because it suggests that this court could be pulling back from what has often seemed like a knee-jerk inclination to rule for corporations over workers and consumers.

A group of couriers over the age of 40 sued Federal Express, claiming it tried to push out older workers. The issue was whether they submitted a proper complaint to the Equal Employment Opportunity Commission within the legal time limit. FedEx claimed the couriers filed the wrong form, but the court ruled, 7 to 2, that an intake questionnaire and a signed affidavit — which the E.E.O.C. considered a valid complaint — met its “permissive standard” for what was acceptable.

US Judge Scalia on 'So-Called Torture'
By RAPHAEL G. SATTER
Associated Press Writer
4:54 PM CST, February 12, 2008

LONDON

One of the United States' top judges said in an interview broadcast in Britain on Tuesday that interrogators can inflict pain to obtain critical information about an imminent terrorist threat.

Supreme Court Justice Antonin Scalia said that aggressive interrogation could be appropriate to learn where a bomb was hidden shortly before it was set to explode or to discover the plans or whereabouts of a terrorist group.

"It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that," Scalia told British Broadcasting Radio Corp.

In the New York case, lawyers for the plaintiff said Catholic Charities should not be forced "to finance conduct that the church teaches is sinful."

Besides New York, more than 20 states (including California) have laws that require employers to include contraceptives in drug coverage. Though churches themselves are exempt from the laws, the exemption does not extend to church-related groups.

"If the state can compel church entities to subsidize contraceptives in violation of their religious beliefs, it can compel them to subsidize abortions as well," the lawyers argued.

The justices turned down a similar challenge to California's prescription-drug law in 2004.

Can you imagine how cool it would be if this reasoning held? I think your upcoming invasion of Iran is sinful. You can't force me to pay for it. In fact, I could make a case for stupidity as sin so I wouldn't have to pay for anything I think is stupid.

High court says no to new rights for church groups
Justices rebuff a quest for services in a library, along with a Catholic group's effort to avoid paying for employees' birth control.
By David G. Savage
Los Angeles Times Staff Writer
October 2, 2007 

WASHINGTON — The Supreme Court on Monday refused to expand the rights of church groups, turning down appeals in a pair of cases.

In the first case, the justices declined to hear a free-speech claim from an evangelical minister in Northern California who wanted to hold worship services in a public library meeting room. In the second, they refused to hear a freedom-of-religion claim from Catholic Charities in New York, which objected to a state law requiring that employees' prescription drug coverage include contraceptives. The cases were on a long list dismissed on opening day of the court's term.

This is an interesting discussion. In particular, I find it interesting that he didn't want to be a Supreme Court justice. We'd have all been better off had he gotten his wish.

I also find Eugene Robinson's voice as interesting as he found VidkunThomas'. He gets his point across without using any words or phrases that can be interpreted as hostile...a difficult task.

Ooh, Oliver sounds testy...

UPDATE: Professor Anita Hill, the woman that this... troll... sexually harassed has written an op-ed in the NY Times to counter his slander of her in his book pimping tour.

ON Oct. 11, 1991, I testified about my experience as an employee of Clarence Thomas’s at the Equal Employment Opportunity Commission.

I stand by my testimony.

Justice Thomas has every right to present himself as he wishes in his new memoir, “My Grandfather’s Son.” He may even be entitled to feel abused by the confirmation process that led to his appointment to the Supreme Court.

But I will not stand by silently and allow him, in his anger, to reinvent me.

The Roberts bloc has not adhered to any principled theory of judging. Its members are not reluctant to strike down laws passed by Congress, as critics of “judicial activism” are supposed to be, or reluctant to overturn the court’s precedents. The best predictor of how they will vote is to ask: What outcome would a conservative Republican favor as a matter of policy?

Now.

I'm serious. 

I am pleased Black folks are thinking about working the law the same way white folks do.

Tuscaloosa’s rezoning dispute, civil rights lawyers say, is one of the first in which the No Child Left Behind law has become central, sending the district into uncharted territory over whether a reassignment plan can trump the law’s prohibition on moving students into low-performing schools. A spokesman, Chad Colby, said the federal Education Department would not comment.

I am NOT pleased this crap must still be dealt with.

Gerald Rosiek, an education professor at the University of Alabama, studied the Tuscaloosa school district’s recent evolution. “This is a case study in resegregation,” said Dr. Rosiek, now at the University of Oregon.

In his research, he said, he found disappointment among some white parents that Northridge, the high school created in the northern enclave, was a majority-black school, and he said he believed the rezoning was in part an attempt to reduce its black enrollment.

The district projected last spring that the plan would move some 880 students citywide, and Dr. Levey said that remained the best estimate available. The plan redrew school boundaries in ways that, among other changes, required students from black neighborhoods and from a low-income housing project who had been attending the more-integrated schools in the northern zone to leave them for nearly all-black schools in the west end.

Alabama Plan Brings Out Cry of Resegregation
By SAM DILLON

TUSCALOOSA, Ala. — After white parents in this racially mixed city complained about school overcrowding, school authorities set out to draw up a sweeping rezoning plan. The results: all but a handful of the hundreds of students required to move this fall were black — and many were sent to virtually all-black, low-performing schools.

Black parents have been battling the rezoning for weeks, calling it resegregation. And in a new twist for an integration fight, they are wielding an unusual weapon: the federal No Child Left Behind law, which gives students in schools deemed failing the right to move to better ones.

“We’re talking about moving children from good schools into low-performing ones, and that’s illegal,” said Kendra Williams, a hospital receptionist, whose two children were rezoned. “And it’s all about race. It’s as clear as daylight.”

The Supreme Court has to take up the Washington D.C. handgun ban case.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit...ruled that the Second Amendment "protects an individual right to keep and bear arms" and that "once it is determined -- as we have done -- that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them."

The court acknowledged that its decision was groundbreaking; only one other federal appeals court -- that of the 5th Circuit, based in New Orleans -- has recognized an individual's right to gun ownership, and it nevertheless upheld the federal gun-control law at issue. Nine other circuits around the country have endorsed the collective right.

This language foreclosed the option of replacing the law. If it becomes national precedent, not only would it overturn the D.C. ban it would allow unprecedented stupidity.

Rick Perlstein finds good stuff.

In its 1981 Mandate for Leadership for the Reagan administration, the Heritage Foundation explained: “For twenty years, the most important battle in the civil rights field has been for control of language,” particularly words such as “equality” and “opportunity.” “The secret to victory, whether in court or in congress,” it advised, “has been to control the definition of these terms.”

The Federalist Society, with which Chief Justice Roberts has collaborated and to which the Bush administration looks for judicial nominees, avidly promotes this maneuver.

That’s little wonder. The president of the Federalist Society is Eugene B. Meyer, the home-schooled son of the conservative movement tactician and National Review co-editor who declared the Brown decision “a rape of the Constitution.” Back when the elder Meyer wrote, conservatives were truthful about who they were and which side they took.

The Scary Origins of Chief Justice Roberts's Decision Opposing the Use of Race to Promote Integration
By Nancy MacLean

Ms. MacLean is author of Freedom Is Not Enough: The Opening of the American Workplace (Harvard University Press, 2006) and Professor and Chair of History at Northwestern University.

Chief Justice John G. Roberts reversed a half-century of precedent and progress on civil rights with his decision on school desegregation. That was the prerogative granted him by the President and the party who entrusted him to shift the Supreme Court to the right.

But no one should grant Roberts a free pass when he says “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. ” His opinion has its lineage in a well-documented conservative strategy to hijack civil rights rhetoric to roll back advances toward substantive equality.

But here we have two public-school cases, both involving the rights of students, and both decided within days of each other, with Justice Thomas writing concurring opinions in each case, concurrences that no other justices joined. Don't you think that someone, somewhere, might have asked Thomas: "Um, so you ask what the Framers would have thought about speech in school but not what they would have thought about voluntary integration. Why not?"

Here's our guess: The question is not asked because it does not yield an answer Justice Thomas would like. There is no way to make an argument, at least with a straight face, that the 14th Amendment was originally understood to prohibit voluntary school integration. No way.

Originalist Sins
The faux originalism of Justice Clarence Thomas.
By Doug Kendall and Jim Ryan
Posted Wednesday, Aug. 1, 2007, at 5:16 PM ET

Jan Crawford Greenburg, in her recent book Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, has—along with several other Supreme Court commentators—demolished the once broadly held view that Justice Clarence Thomas simply follows the lead of Justice Antonin Scalia. Indeed, if Greenburg's book is to be believed, it's closer to the other way around. With this appropriate reassessment of Thomas' intellectual role on the Supreme Court, a broader claim has been advanced by his supporters that Thomas is a model originalist: a principled justice with a fixed judicial method. He is more radical than Scalia—even his supporters will admit that—but that is simply because he is so principled, they contend. Whereas Scalia will dilute his originalism with a dollop of stare decisis, Thomas likes his served straight up, even if it means upsetting decades of settled precedent. 

This notion that Thomas is radical but principled is half right. To be precise, the first half is right: He is radical. But he does not seem very principled.

The American Constitution Society held a discussion of how and why the last Supreme Court session sucked. This is Roger Wilkins' opening statement in three parts to fit on YouTube. If you only watch one part, make it the third one. It's the shortest anyway.

That's all you need to know about my reaction to this.

Chief Justice Roberts Is Hospitalized After Seizure
By LINDA GREENHOUSE

WASHINGTON, July 30 — Chief Justice John G. Roberts Jr. was hospitalized on today after suffering a seizure at his summer home in Maine, the Supreme Court announced.

The episode, described as a “benign idiopathic seizure,” was similar to one he suffered 14 years ago, according to the court’s press release. Idiopathic means that the cause of the seizure remains unknown.

He had no lasting effects from the earlier incident and was “fully recovered” from the seizure he suffered about 2 p.m. today, the court said, adding that the chief justice had undergone “a thorough neurological evaluation, which revealed no cause for concern.”

He was to remain overnight “as a precaution” at Penobscot Bay Medical Center in Rockport.