Two members of the U.S. Supreme Court indicated on Thursday night that the court will ultimately have to decide the legality of National Security Agency surveillance activities.
The two justices, Antonin Scalia and Ruth Bader Ginsburg, made the comments during a public event at the National Press Club in Washington. They were responding to questions posed by journalist Marvin Kalb about whether the court would take up cases arising from the recent disclosures about NSA surveillance, most notably by former NSA contractor Edward Snowden.
The justices did not discuss specific NSA programs. There are various lawsuits pending around the country challenging the government’s widespread collection of telephone records. A federal judge in Washington, D.C., ruled in December that the program was probably unlawful, while a judge in New York held later that month that it was not. Both cases are now on appeal.
Scalia, a leading conservative justice, said the court was not the best body to decide major national security issues because of its lack of expertise. But he indicated that the court would likely decide the issue of whether widespread gathering of telecommunications data violates the Fourth Amendment, which bars unlawful searches and seizures.
“The institution that will decide that is the institution least qualified to decide it,” Scalia said. The legal question is about “balancing the emergency against the intrusion” on the individual, he said.
Nine justices serve on the U.S. Supreme Court.
Ginsburg, one of the court’s liberal members, said the justices would have little choice but to decide the matter should it come before them.
“We can’t run away and say, ‘Well, we don’t know much about that subject so we won’t decide it,’” she said.
Tag Archives: Ruth Bader Ginsburg
Two members of the U.S. Supreme Court indicated on Thursday night that the court will ultimately have to decide the legality of National Security Agency surveillance activities.
It doesn’t look good if The Court is packed with a Conservative majority
At a forum in Reston, Virginia on Tuesday, Justice Ruth Bader Ginsburg threw her most recent bucket of cold water on Courtwatchers urging her to retire while President Obama is still in the White House. A justice should remain “as long as she can do the job full steam,” according to Ginsburg. “At my age, you take it year by year. I’m OK this year.”
Ginsburg also cited Justices William Brennan and Thurgood Marshall, both liberal justices who retired under President George H.W. Bush. Yet, while Bush’s selection of the moderately liberal Justice David Souter to replace Brennan only moved the Court marginally to the right, his decision to replace America’s most significant civil rights attorney with the staunchly conservative Justice Clarence Thomas may be the most consequential Supreme Court appointment since Chief Justice Earl Warren joined the bench in 1953.
Marshall was in poor health when he left the Court, but he survived until a few days after President Clinton took the oath of office. Had Clinton selected Marshall’s replacement instead of Bush, the Citizens United case would have been an obvious loser that likely never would have been filed. There would likely be five votes on the Supreme Court to abolish voter ID laws. Practices like forced arbitration, which cause consumers and workers to sign away their right to sue businesses in a real court, would be far less widespread and likelywould not exist at all in employment contracts. A 1992 Supreme Court decision significantly limiting the right to choose an abortion would have come down the other way — and Roe v. Wade would likely have five solid votes on the Supreme Court.
The Voting Rights Act — all of it — would still be good law.
If a future Republican president has the opportunity to replace Justice Ginsburg, the results could be no less consequential. Here’s a short list of decisions that would immediately become vulnerable if Ginsburg’s vote went to a conservative justice:
- No More Marriage Equality: United States v. Windsor — the decision striking down the unconstitutional Defense of Marriage Act — was a 5-4 decision with Ginsburg in the majority. If Ginsburg is replaced by another conservative, DOMA could roar back to life. At the very least, the nation’s drive towards nationwide marriage equality could come to a screeching halt.
- Criminalizing Sex: Although Lawrence v. Texas, which struck down Texas’ “sodomy” law, was a 6-3 decision, one of those six justices has since been replaced by the staunchly conservative Justice Samuel Alito. If another member of the Lawrencemajority is replaced, it could lead to gay sex being outlawed entirely in several states.Lawrence‘s holding, however extends far beyond gay couples to prohibit laws criminalizing non-commercial sexual activity between consenting adults. Thus, ifLawrence falls, the government could find its way into every American’s bedroom.
- The End of Abortion Rights: Roe v. Wade is already on life support. Indeed, Justice Anthony Kennedy, who is the so-called swing vote on abortion, hasn’t voted to strike a law restricting the right to choose in 21 years. Nevertheless, Kennedy provided the key fifth vote to retain “the essential holding of Roe v. Wade” in a case called Planned Parenthood v. Casey. If Ginsburg is replaced by a conservative, there will likely be only four votes willing to retain that holding.
- Watering Down Minority Votes: Five justices voted in League of United Latin American Citizens v. Perry to strike part of a Texas redistricting map because it tried to protect an incumbent Republican congressman by reducing the impact of Latino voters. If Ginsburg is replaced by a conservative, these kinds of tactics could become common.
- Executing Children & The Intellectually Disabled: There are almost certainly four votes on the Supreme Court to permit executions of children and the intellectually disabled. Ginsburg’s replacement could be the fifth.
- Judges for Sale: Four justices joined a dissent arguing that there’s nothing wrong with a wealthy businessman spending $3 million to place a judge on a state supreme court— only to have that judge cast the key vote to overturn a $50 million verdict against the businessman’s company. Ginsburg’s replacement could places judges up for sale.
- Millions Without Health Care: Finally, the decision that largely preserved the Affordable Care Act was a 5-4 decision, with four justices voting to repeal Obamacare in its entirety. If those four justices gain a fifth vote, it could not only strip millions of Americans of the health insurance that they will soon gain under this law, but it could toss the entire American health care system into chaos. Among other things, if the dissent’s plan to repeal the Affordable Care Act in its entirety were to actually happen,Medicare could lose its ability to pay claims until the agency that administers the program completed a lengthy rule making process that can take months.
This list, of course, is only a small sample of the things that could happen if Ginsburg is replaced by a conservative. A full list would be much, much longer.
- Justice Ginsburg to speak at event in Virginia (miamiherald.com)
- Justice Ginsburg to speak at event in Virginia (fresnobee.com)
- Ruth Bader Ginsburg Still Doesn’t Want to Resign (theatlanticwire.com)
- U.S. Supreme Court Associate Justice Ruth Bader Ginsburg to Address NVTC Titans Breakfast on Dec. 17 (virtual-strategy.com)
- Yes, Stephen Breyer and Ruth Bader Ginsburg should still retire (washingtonpost.com)
In an interview with the New York Times’ Adam Liptak, Justice Ruth Bader Ginsburg offered a grim assessment of the Court where she so often finds herself leading a four justice dissent — the Roberts Court is “one of the most activist courts in history.”
As an historic matter, this is a pretty staggering claim. The Supreme Court in 1905 handed down a decision called Lochner v. New York that is now widely taught in American law schools as an example of how judges should never, ever behave. Lochner treated any law improving workplace conditions or helping workers to obtain an adequate wage as constitutionally suspect. And Lochner was hardly an anomalous moment in the Court’s history.
Thirteen years after Lochner the Supreme Court struck down federal child labor laws in a decision that is also widely taught as an example of inexcusable judicial activism. In 1895, the Supreme Court rendered the country virtually powerless against monopolies and other powerful combinations of corporate power, and then it held an income tax on the wealthiest Americans unconstitutional just a few months later. The Supreme Court has, with rare exception, been a largely malign force in American history.
There is, however, one important way in which the Roberts Court is distinguishable from the Courts that decided cases such as Lochner. Laws such as the Sherman Antitrust Act and the first federal ban on child labor arose as lawmakers with struggling with many of the negative side effects of the Industrial Revolution. The birth of the railroad and the dawn of mass production massively improved the American standard of living, but they also enabled monopolists to thrive and they resulted in mass exploitation of the working class. The Supreme Court in this era did not so much tear down established rights as it stood for a status quo that favored capital over labor and the rich over the rest of the nation.
The Roberts Court, by contrast, has actively rolled back existing laws protecting workers, women and people of color. The Nineteenth Century Supreme Court blocked America’s first meaningful efforts at racial equality, but the Roberts Court stole from minority voters rights that they had enjoyed for decades. TheLochner Court strangled basic protections for workers in their crib, but the Roberts Court takes fully matured protections for workers and carves them upa piece at a time. And, while Lochner Era courts acted out in the open, undermining human rights in published opinions. the Roberts Court pushes analternative, corporate-run arbitration system that operates largely in secret.
None of this is to say that the world we live in now is worse than the world our great-grandparents lived in under the Lochner Court — if the Roberts Court’s goal is to bring us back to this era, they are currently shy at least one vote. Nevertheless, the Roberts Court is unusually willing to take from ordinary Americans rights they have enjoyed for a very long time. The Supreme Court has a long history of standing athwart history yelling stop. This Supreme Court, however, wants to shift history into reverse.
- Is the Roberts Court pro-business? (professorbainbridge.com)
- John Roberts’ Supreme Court: An Assault on Civil Rights (theroot.com)
- Justice Ruth Bader Ginsburg On Not Stepping Down And The “Activist” Roberts Court (sbmblog.typepad.com)
- “Acknowledging The Usual Suspects”: Justice Ginsburg Says The Supreme Court Is “One Of The Most Activist” (mykeystrokes.com)
GINSBURG, BREYER THINK MONTANA RULING WILL BE A CHANCE TO REVERSE DECISION
The Supreme Court has agreed to take a case that justices Ruth Bader Ginsburg and Stephen Breyer say will give it a chance to rethink its infamous Citizens United v. FEC decision. The court is being asked to look into a Montana Supreme Court decision stating that its law restricting corporate election spending in state elections is fine, because it “arises from Montana history,” UPI reports. Essentially, Montana is arguing that Citizens United only applies to federal laws and elections, not state ones.
Two Montana corporations are asking the court to make a summary judgment to the contrary; their lead counsel argues that otherwise, “free speech will be seriously harmed,” because states anywhere could “ban core political speech.” But Ginsburg and Breyer earlier wrote that the case “will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”
- Supreme Court Agrees to Reconsider Citizens United (newser.com)
- Citizens United sequel filed (scotusblog.com)
Yesterday, Pat Buchanan announced that his tenure as a commentator at MSNBC was finally over, ending months of speculation about his absence from his once-frequent perch aside morning anchors Joe Scarborough and Mika Brzezinski.
Calls for Buchanan’s firing by groups like Color of Change, Credo, and Media Matters had been loud and growing, following years of controversial, offensive and outright bigoted statements made by Buchanan without apology or remorse. Here is a look back at 10 of the most offensive and outrageous statements made by Pat Buchanan:
1. Wanted to close the borders to protect white dominance. As he wrote in his 2006 book State of Emergency: “If we do not get control of our borders, by 2050 Americans of European descent will be a minority in the nation their ancestors created and built.”
2. Blamed lower test scores on minorities. In his most recent book Suicide of a Superpower: Will America Survive to 2025?, he blames minorities for dragging down the country’s test scores. “[T]he decline in academic test scores here at home and in international competition is likely to continue, as more and more of the children taking those tests will be African-American and Hispanic.
3. Claimed Jerry Sandusky’s atrocities are because of “Homosexual marriage.”Buchanan appeared on a right-wing radio show on November 15 to make some convoluted comparisons: “Let’s take this Penn State thing…these horrors, there’s an organization that marches in the gay pride parade in New York called—used to—called the North American Man Boy Love Association, which advocated voluntary sex along the lines of exactly what was going on at Penn State. Many of our political icons have marched in that parade right behind that NAMBLA float […] This is now, homosexual marriage is now the civil rights cause of the decade.”
4. Said the Jewish population in the United States dropped in the 90s because Jews aborted all their babies. Buchanan explains that the decline in the American Jewish population during the 1990s (a decline that a Brandeis studysays never occurred), “is a result of the collective decision of Jews themselves. From Betty Friedan to Gloria Steinem in the 1970s to Ruth Bader Ginsburg today, Jewish women have led the battle for abortion rights. The community followed.”
5. Asserted Anders Breivik, who murdered 77 people including 69 teens in Norway, “may have been right.” Buchanan called Breivik a coward, evil, and cold-blooded, and then proceeded to defend his twisted rationale for the killings: “As for a climactic conflict between a once-Christian West and an Islamic world that is growing in numbers and advancing inexorably into Europe for the third time in 14 centuries, on this one, Breivik may be right.”
6. Claimed that all great nations punish the gays. In a Human Events column, Buchanan attacked California’s 9th Circuit Judge Vaughn Walker after his ruling of Proposition 8 as unconstitutional as a “judicial tyrant,” before going on to explain that “through history, all the great religions have condemned homosexuality and all the great nations have proscribed or punished it. None ever placed homosexual liaisons on the same plane as traditional marriage, which is the bedrock institution of any healthy society.
7. Penned “The Affirmative Action Nobel.” That’s the title of Buchanan’s October 13, 2009 column on Townhall.com in which he claims that President Obama’s Nobel Prize was simply the result of affirmative action. And the column only got worse from there: “They have reinforced the impression that Obama is someone who is forever being given prizes — Ivy League scholarships, law review editorships, prime-time speaking slots at national conventions — he did not earn.”
8. Argued that Poland and the United Kingdom had it coming in World War II.Buchanan seems to suggest in a 2009 column that World War II—and all the atrocities that accompanied it—was really the fault of Poland and Britain, for refusing to engage in diplomacy with Germany. “Why did Warsaw not negotiate with Berlin, which was hinting at an offer of compensatory territory in Slovakia? Because the Poles had a war guarantee from Britain that, should Germany attack, Britainand her empire would come to Poland’s rescue.”
9. Dabbled in Holocaust denial. Pat Buchanan danced alarmingly close to denying key facts of the Holocaust. In a 1990 column for the New York Post, he defended convicted Nazi war criminal Ivan Demjanjuk (whom he latercompared to Jesus Christ) against charges from Holocaust survivors that he was guilty of murder by accusing the survivors of misremembering all of it: “This so-called ‘Holocaust Survivor Syndrome’ involves ‘group fantasies of martyrdom and heroics.’ Reportedly, half of the 20,000 survivor testimonies in Yad Vashem memorial in Jerusalem are considered ‘unreliable,’ not to be used in trials[…]The problem is: Diesel engines do not emit enough carbon monoxide to kill anybody.”
10. Argued Hitler was an individual of “great courage.” That’s just one of the quotes that the Anti-Defamation League attributes to Buchanan in theircompendium of offensive remarks from Buchanan over the years. In 1977, he qualified his labeling of Hitler as racist and anti-semitic by adding that “he was also an individual of great courage, a soldier’s soldier in the Great War, a leader steeped in the history of Europe, who possessed oratorical powers that could awe even those who despised him[…]His genius was an intuitive sense of the mushiness, the character flaws, the weakness masquerading as morality that was in the hearts of the statesmen who stood in his path.”
With views like this, Buchanan would probably be a nice, cozy fit for Fox News.
- The First Amendment Versus Pat Buchanan? (jonathanturley.org)
- In Defense of Pat Buchanan and the First Amendment (thecollegeconservative.com)
- MSNBC Fires Pat Buchanan Over “White America” Book Comment (inquisitr.com)
- MSNBC Dumps Pat Buchanan (underthelobsterscope.wordpress.com)
- Pat Buchanan Out: People Respond Online (webpronews.com)
- Pat Buchanan Out at Msnbc (maboulette.wordpress.com)
- MSNBC and Pat Buchanan part ways. He blames everyone else. (dailykos.com)
- Pat Buchanan is gone from MSNBC (americablog.com)
I suppose most people are adjusting to the fact that those very conservative 5-4 decisions on the United States Supreme Court will continue until one of two things happen: a) a conservative retires and the current president appoints a liberal or moderate to that seat or b) Scalia, Thomas or some other rogue Justice is impeached.
John Thompson (pictured) was convicted of a 1984 armed robbery, and later of murder. He spent 18 years in prison, including 14 years on death row. Problem: the prosecutors who sent him to jail withheld some evidence—including eyewitness reports describing a perpetrator who looked nothing like Thompson, and a blood test that proved Thompson’s innocence.
So, after all those years, after facing seven execution warrants, when Thompson finally managed to get himself freed from prison after new trials, Thompson sued the New Orleans district attorney for not training his prosecutors to, you know, not send innocent people away for decades. He won a $14 million judgment from a jury. That was appealed, all the way to the Supreme Court. And yesterday, voila: John Thompson gets nothing. From the NYT:
Justice Scalia, in a concurrence joined by Justice Alito, said the misconduct in the case was the work of a single “miscreant prosecutor,” Gerry Deegan, who suppressed evidence “he believed to be exculpatory, in an effort to railroad Thompson.” No amount of training, Justice Scalia wrote, would have countered such willful wrongdoing.
In her dissent, Justice Ginsburg wrote that “no fewer than five prosecutors” were complicit in a violation of Mr. Thompson’s constitutional rights. “They kept from him, year upon year, evidence vital to his defense.”
Here in America, all bad outcomes which reflect poorly on the current power structure are the result of a handful of Bad Apples. And you can’t hold the people in charge accountable for the work of A Few Bad Apples. This principle applies to ill-conceived wars gone wrong, greed-induced collapse of financial systems, profit-driven corporate environmental destruction, and willful miscarriages of justice. And any future unforeseen disasters, to be determined at a later date.
- Conservatives On Supreme Court Overturn $14 Million Award For Innocent Man nearly executed (alan.com)
- Just shutup and be happy you weren’t executed (firedoglake.com)
- Supreme Court Rules Exonerated Death Row Inmate Cannot Receive Damages (theroot.com)
- Injustice From The Supreme Court, Courtesy Of Justice Thomas And His Fellow Conservatives (outsidethebeltway.com)
- Supreme Court Justice Scalia ticketed after fender-bender on way to work (thenewstribune.com)
- Radical Supremes Deny Justice to Man Falsely Convicted by DA Misconduct (my.firedoglake.com)
- Justice Scalia Causes Traffic Accident (shoppingblog.com)
- The Wheels of Justice (Scalia): Will Nino Fight His Traffic Ticket? (abovethelaw.com)
- Will Ruth Bader Ginsburg Retire From The Court This Year (themoderatevoice.com)
NOTE: This article was to have been posted hours ago. I was having some connectivity issues with my computer. I apologize for the delay.
Never, in my lifetime have I seen such disrespect for a sitting president…
Chief Justice John Roberts will lead a contingent of six Supreme Court justices at President Barack Obama’s State of the Union speech, quieting speculation that only Democratic appointees to the court would attend.
Roberts had objected to the partisan atmosphere at last year’s address, particularly after Obama offered rare criticism of the court during his speech.
Court spokeswoman Kathy Arberg confirmed that six justices would be present at Tuesday’s speech, although she would not say which ones. But as three of the nine justices had previously all but ruled themselves out, it seemed a safe assumption that Roberts and Justice Anthony Kennedy would join their four colleagues who were appointed by Democratic presidents.
Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor also are expected to attend. For Kagan, it would be her first speech since Obama nominated her last year. Sotomayor was Obama’s first high court pick.
Justice Samuel Alito, who mouthed the words “not true” in response to Obama’s criticism, is spending this week as “jurist in residence” at the University of Hawaii law school. Justice Antonin Scalia, at the Capitol Monday to speak to the Tea Party Caucus, has not attended a State of the Union speech at least since the mid-1990s. Justice Clarence Thomas said last year that he doesn’t go because “it has become so partisan,” although he attended Obama’s first speech to Congress in February 2009. More…
- Should Supreme Court Justices Attend the State of the Union? (usnews.com)
- Three Supreme Court justices likely to skip State Of The Union (shortformblog.com)
- 6 justices to attend Obama speech Tuesday night (sfgate.com)
- 6 justices to attend Obama speech Tuesday night (seattletimes.nwsource.com)