Scalia’s utter moral failure: How he destroys any claim to a superior system of justice

Scalia's utter moral failure: How he destroys any claim to a superior system of justice
Supreme Court Justice Antonin Scalia | (Credit: AP/Charles Rex Arbogast)

Salon ~ Heather Digby Parton

He doesn’t think executing an innocent man matters. How on earth can such a depraved human be on our Supreme Court?

While my views on the morality of the death penalty have nothing to do with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases, the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral.

– Justice Antonin Scalia

One might wonder how he can stay on the court after the revelation last week that two convicted murderers he once described as lucky to be given the blessing of a lethal injection have turned out to be innocent. That’s right, this is about the case everyone’s been talking about — the two brothers, both mentally disabled, who were railroaded onto death row some 30 years ago with coerced confessions by a corrupt police department. As the New York Times reported:

The case against the men, always weak, fell apart after DNA evidence implicated another man whose possible involvement had been somehow overlooked by the authorities even though he lived only a block from where the victim’s body was found, and he had admitted to committing a similar rape and murder around the same time.

The startling shift in fortunes for the men, Henry Lee McCollum, 50, who has spent three decades on death row, and Leon Brown, 46, who was serving a life sentence, provided one of the most dramatic examples yet of the potential harm from false, coerced confessions and of the power of DNA tests to exonerate the innocent.

They were 19 and 15 at the time of the murder and their conviction was based on nothing more than their coerced confessions, one of which was said to have ended with the defendant saying, “Can I go home now?” It was a famous case, used often by law and order Republican politicians in North Carolina as an electoral cudgel with which to beat Democratic rivals over the head. The state appeals process eventually reduced the sentence of one of the defendants to life in prison but until a state commission with power to subpoena evidence looked into it, the DNA from the scene was not tested and other evidence from the crime scene that implicated another convicted rapist was never processed. When they were, they exonerated these two men.

What exactly was it that Justice Scalia said about them? Well, he cited this particular case in the decision on Collins v. Collins back in 1994 in which he disagreed with Justice Harry Blackmun on the constitutionality of the death penalty. This was the famous case in which Justice Blackmun disavowed his former support for capital punishment and declared that he would no longer “tinker with the machinery of death.” Scalia wrote, with characteristic sarcasm:

Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us, the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us, which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional, for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!”

Yes, how very enviable. Unless the defendants are innocent, in which case it is as horrifying as the brutal slaying of the victim, particularly after 30 years spent imprisoned in a small cell waiting for the day that he will know in advance he is to die. That alone is cruel and unusual punishment. Not that Justice Scalia sees it that way.  (His comments suggest that the methods of punishment should be directly correlated to the luridness of the crime, an antediluvian concept rejected by the Enlightenment-influenced writers of the Constitution he alleges to take so literally.)

Death penalty supporters inevitably use cases like this to illustrate that “the system worked” and, by implication, always works. Except that’s sophistry and everyone knows it. The only reason it worked in this case was because the state of North Carolina empowered an outside commission to investigate. And what they found was malfeasance, a coverup and a corrupt indifference to justice. The legal system obscured the truth at every level and every step along the way. There is no way of knowing how often that happens but any sentient being realizes that it is impossible that this was the only time.

Worst of all, Justice Scalia and other death penalty proponents who find nothing immoral in the state’s conscious, coldblooded taking of a life are equally unconcerned that they might be taking the life of an innocent person. The horrifying injustice in such a mistake (or criminal corruption) is irrelevant. Apparently as long as the train of the legal system runs on time there’s no cause for him to lose any sleep. Indeed, Scalia has said so:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

This man claims that he could not be a judge if he thought his participation in the death penalty was immoral and yet he does not believe it matters under the Constitution if the state executes innocent people. How on earth can such a depraved person be on the Supreme Court of the United States? On what basis can our country lay claim to a superior system of justice and a civilized moral order when such people hold power?

The last honest conservative: Meet the brilliant Ronald Reagan appointee making Antonin Scalia’s life very difficult

The last honest conservative: Meet the brilliant Ronald Reagan appointee making Antonin Scalia's life very difficult
Richard Posner, Antonin Scalia (Credit: Reuters/John Gress/Brendan Mcdermid)


On three high-profile cases bound for the Supreme Court, Judge Richard Posner has seen through right-wing blather

Judge Richard Posner has written nearly 40 books, hundreds of articles and thousands of judicial opinions. He is, by far, the most cited legal scholar alive today (probably ever). Nominated by Ronald Reagan, he sits on the United States Court of Appeals, just below the Supreme Court. He has publicly feuded with Justice Antonin Scalia over how judges actually decide, and should decide, cases. And, over the last year, he has spoken truth to power in three high-profile cases all likely to be decided by the Supreme Court.

On issues of abortion, same-sex marriage and religious objections to Obamacare, Posner said exactly what needed to be said with honest, unequivocal and, to some perhaps, startling clarity.

The University of Notre Dame didn’t want to provide certain forms of required contraception to its students and employees so it went to court seeking a religious exemption. The bizarre thing about the case is Notre Dame was already exempt. What it wanted was not to fill out the form that would have guaranteed the university an exemption. Notre Dame claimed, to most people’s disbelief, that filling out the short form and asking for the exemption was itself a substantial burden on its religious exercise.

Posner would have none of it. At the oral argument, he took a harsh tone with the lawyer for Notre Dame who refused again and again to answer directly how filling out a piece of paper could possibly be a “substantial burden on religion.” Becoming more and more frustrated, Posner eventually asked the lawyer to “stop babbling,” and “stop fencing,” eventually warning him that “if you don’t cooperate with me, I’m not going to let you continue your argument.” The judge’s frustration stemmed from his perception that Notre Dame’s claims had no merit, and the lawyer was simply bobbing and weaving.

Eventually, Notre Dame lost (the court of appeals uses three-judge panels) and the final opinionwritten by Posner said this: “The novelty of Notre Dame’s claim–not for the exemption, which it has, but for the right to have it without having to ask for it–deserves emphasis … What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths … The process of claiming one’s exemption … is the opposite of cumbersome.  It amounts to signing one’s name and mailing the signed form to two addresses.”

From the oral argument through the decision, Posner seemed shocked at the idea that Notre Dame would challenge an exemption given to it by the federal government on the basis that it, gasp, had to ask for it. He couldn’t be more right.

A few months later, Posner, again along with two other judges, reviewed the validity of a brand-new Wisconsin law requiring doctors who perform abortions to have admitting privileges at nearby hospitals. The law, if valid, would make it much more difficult for clinics in Wisconsin to provide abortion services because, of the four clinics in the entire state that perform abortions, two would have been shut down.  Although the case came to the court on a preliminary motion (an emergency stay had been granted by the lower court), Posner took the opportunity to demonstrate why he thought the plaintiffs would eventually prevail.

In affirming the stay, Posner noted that “no documentation of medical need for such an admitting privileges requirement was presented to the Wisconsin legislature when the bill that became the law was introduced.” He also noted that no “other procedure performed outside a hospital, even one as invasive as a surgical abortion (such as a colonoscopy) …  and even if performed when the patient is under general anesthesia … is required by Wisconsin law to be performed by doctors who have admitting privileges at hospitals within a specified, or indeed any, radius of the clinic at which the procedure is performed.”  Posner added that the risks of colonoscopies are three to six times greater than the risks of abortions (yet doctors can perform them in outpatient centers without having admitting privileges), and that, based on a report by the state, out of 1,192 abortions that were reported, there were only 16 complications, a rate of less than 1 percent.

Throughout the opinion, Posner implied, though didn’t go as far as to conclude, that the obvious purpose of the law was not to further women’s health but simply to make abortions more difficult to obtain. For example, on the issue of the timing of the law, he said “it has been 40 years sinceRoe v. Wade … was decided, legalizing (most) abortion throughout the United States, and it could not have taken the State of Wisconsin all this time to discover the supposed hazards of abortions performed by doctors who do not have admitting privileges at a nearby hospital.”

Posner saw through the litigation and the alleged health benefits of the admitting privileges law. His opinion will make it virtually impossible for Wisconsin to win this case if and when it returns for a final disposition, and rightfully so.

Finally, Posner was recently one of three judges to hear oral argument in a lawsuit challenging Wisconsin and Indiana’s ban on same-sex marriage. Although the case has not yet been decided, there is no question how Posner will vote. When the lawyer for Wisconsin justified the ban based on “tradition,” Posner responded by saying “It was tradition to not allow blacks and whites to marry — a tradition that got swept away.” He also said the ban stems from “a tradition of hate … and savage discrimination” against same-sex couples.

During the argument, the state argued that the purpose of the ban had something (ill-defined) to do with procreation and biology. Posner responded, “It’s arbitrary. You’re allowing all these sterile people to get married. Why are you doing that if you’re so concerned with procreation? Why do you let them?”

Posner also asked the state’s lawyer about the harm to children of same-sex couples denied benefits that children of opposite-sex couples receive and further chided the lawyer by sayingthat “You are concerned with the unfortunate children produced by accidental births … many of these (unintended children) are adopted by same-sex couples, and these children will be better off if their parents can marry, no? Isn’t that obvious?”

Posner thought it was “obvious” that filling out a form cannot possibly be a substantial burden on religion, that the state of Wisconsin and Indiana didn’t care one bit about women’s health when it decided to require doctors who perform abortions to have admitting privileges at hospitals, and that bans on same-sex marriage have little to do with permissible concerns Wisconsin may have about marriage and children and everything to do with unlawful and arbitrary discrimination. As a matter of law he is right about all three cases. As a matter of politics, we will have to wait until the Supreme Court decides to have our final answers.

The Most Partisan Supreme Court Justice Of All

“Scalia is a Roosevelt Liberal compared to Alito…”

It’s been my observation that  Alito is definitely not an Obama fan…and that’s putting it mildly.

Think Progress

In mid-November of 2012, hundreds of tuxedo-clad Republican lawyers gathered at a hotel ballroom in Washington, DC. They were a mix of heads hung in dejection and chests puffed out in compensatory bluster. Less than two weeks earlier, they’d seen President Obama vanquish his opponent at the polls. Their last chance to knock a hated president out of office — and their last real chance to halt that’s president’s even more hated health reforms — ended in failure. They and their allies had made their best case that liberalism was a path to economic ruin, and the American people had lined up at their polling places to pull the lever for liberalism.

And yet, at this annual gathering of the Federalist Society for Law and Public Policy Studies, arguably the most powerful legal organization in the country, Justice Samuel Alito was defiant. Not long after rising to give his keynote address to the room full of conservative senators, judges, and attorneys gathered before him, Alito launched into a story of a particularly uninspiring law professor whose course he took in law school. The professor, Alito recalled, authored a book in 1970 warning of a decaying society trapped in a “moment of utmost sterility, darkest night, most extreme peril.”

At this point in his speech, Alito paused, and looked over the roomful of lawyers still licking their wounds from Mitt Romney’s very recent defeat. “Our current situation,” he told them, “is nothing new.”

Almost exactly one month after his speech, a gunman named Adam Lanza walked into an elementary school in Sandy Hook, Connecticut and murdered 26 people, 20 of whom were children. What followed was a nationwide debate over the proper way to solve gun violence and over the scope and the wisdom of the Second Amendment. Many of the lawyers and lawmakers who attended Justice Alito’s speech would fight hard — and, ultimately, successfully — to defeat President Obama’s proposals to prevent future Sandy Hooks.

In the moment of calm between these two storms, Justice Alito let the audience know where he stood on both questions. Referring to the text of the Constitution, Alito quipped that “[i]t’s hard not to notice that Congress’ powers are limited, and you will see there is an amendment that comes right after the First Amendment, and there’s another that comes after the Ninth Amendment.” He spent much of the rest of the speech criticizing legal arguments the Obama Administration had made in his Court.

So, when Chief Justice Roberts opened the final session of the Supreme Court’s term on Monday by announcing that Justice Alito would deliver both of the Court’s remaining opinions, liberals immediately knew that they were about to hear some very bad news. In quick succession, Alito dealt sharp blows to public sector unions and to women whose employers object to birth control.

A Straight Face

If Alito’s Hobby Lobby opinion — the second of the two decisions he handed down on Monday — proves anything, it is that Alito has mastered the art of reading legal authorities that cut sharply against his position, and then authoring a legal opinion that passes them off as if they actually bolster his argument. In Hobby Lobby, Alito was confronted by decades of legal precedents establishing that religious liberty claims could not be used to diminish the rights of third parties, especially in the employment context. Worse, at least for Alito’s belief that employers with religious objections to birth control could deny legally mandated coverage to their employees, Hobby Lobby turned upon how the Court interpreted a 1993 law — a law known as the Religious Freedom Restoration Act or RFRA — that explicitly stated that its purpose was to “restore the compelling interest test” set out by these earlier precedents after that test was overruled by an unpopular Supreme Court decision. This was the same legal test that was in place when the Court held that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”

Yet Alito ignored Congress’s clearly stated purpose, he offered little explanation for why he was justified in doing do, and what little justification he did offer falls apart upon a very cursory inquiry. At one point in his opinion, for example, Alito points to a 2000 amendment to a largely irrelevant provision of RFRA, claiming that the amendment was “an obvious effort to effect a complete separation from First Amendment case law.” Elsewhere, Alito argues that RFRA strengthened the legal protections available to religious objectors prior to 1990. Both claims, however, are difficult to square with RFRA’s statement that its entire purpose is to restore prior precedents — and there is nothing in the 2000 amendment which alters this statement of purpose.

Hobby Lobby is also the latest in a series of decisions Alito has handed down diminishing the rights of women in the workplace. Prior to Hobby Lobby, his most famous decision was undoubtedly Ledbetter v. Goodyear Tire, the pay discrimination case that Congress overturned in the very first bill President Obama signed into law.

Alito, however, does not appear at all humbled by the experience of having a successful presidential candidate campaign against his most well-known opinion and then eradicate that opinion just over a week after moving into the White House. Last year, in an opinion with potentially much further reaching consequences than Ledbetter, Alito gutted a core protection helping prevent workers from being racially or sexually harassed by their boss. Harassment suits of this kind are notoriously difficult to win, especially when a worker is harassed by colleagues without direct authority over them. When a worker is sexually or racially harassed by their “supervisor,” however, the law recognizes that employers should have a special incentive to halt this kind of exploitation immediately. In many cases, when a worker is the victim of harassment by their boss, their employer is automatically liable for this harassment.

Except that, in Vance v. Ball State University, Alito’s opinion for a majority of the Court defined the word “supervisor” so narrowly as to render it practically meaningless. In Alito’s view, a person’s boss is only their “supervisor” if their boss has the power to make a “significant change in [their] employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”

In a modern workplace, where final personnel decisions are often delegated to a distant human resources office, this means that few workers’ bosses will qualify as supervisors. Indeed, in dissent, Justice Ruth Bader Ginsburg gives several examples of women whose bosses no longer count as “supervisors” under Alito’s framework. One of these non-supervisor supervisors was a man assigned to evaluate a female co-worker’s job perfomance, who then “forced her into unwanted sex with him, an outrage to which she submitted, believing it necessary to gain a passing grade.”

A Corporation’s Best Friend

Lest there be any doubt, these three cases are not isolated decisions. The Constitutional Accountability Center (CAC) releases occasional reports tracking how often the Supreme Court sides with the United States Chamber of Commerce in cases where the Chamber files a brief. In large part because the Chamber is both a prominent corporate interest group and an especially active Supreme Court litigant, CAC maintains that tracking the Chamber’s performance is a good proxy for how likely the justices are to side with big business. Year after year, their data shows that Alito is a corporation’s best friend on the Court:

Chamber stats by justice

Other studies show similar results. According to data by Washington University Professor Lee Epstein, Alito is more likely to cast a conservative vote than anyone else on the Court.

To be fully precise, that does not make Alito the Court’s most conservative member. That honor belongs to Justice Clarence Thomas, who is the only member of the Court who openly pines for the days when federal child labor laws were considered unconstitutional. Yet, while Alito can’t match Thomas’s radicalism, he is far and away the most partisan member of the Court.

To explain this distinction, Thomas not a partisan. He is an ideologue. His decisions are driven by a fairly coherent judicial philosophy which would often read the Constitution in much the same way that it was understood in 1918. While this methodology typically leads him to conservative results, it does occasionally align him with the Court’s liberals. In 2009, for example, in a case brought by a drug company seeking lawsuit immunity after one of their products caused a woman to lose her hand, Thomas arguably took a position well to the left of the Court’s liberal bloc. While Justice John Paul Stevens wrote an opinion for the Court rejecting the drug company’s quest for immunity, Thomas argued that the legal doctrine the drug company relied upon should be tossed out entirely.

What makes Alito a partisan is that there is no similar case where his judicial philosophy drove him to a result that put him at odds with his fellow conservatives. Shortly after Hobby Lobby was handed down, ThinkProgress contacted several legal scholars and Supreme Court advocates asking if they could identify a single closely divided case where Alito broke with his fellow conservatives to join the liberals. Most replied that they could not think of any. One, Boston College Law Professor Kent Greenfield, added that “Scalia is a Roosevelt liberal in comparison” to Alito. Another, a progressive attorney who frequently practices in Alito’s Court, wrote back with just four words — “Nope. He’s the worst.”

Kedar Bhatia, a lawyer who compiles statistics on Supreme Court decisions for SCOTUSBlog, agreed that “I don’t believe there have been any true instances of a 5-4 majority with Ginsburg, Breyer, Stevens/Kagan, Souter/Sotomayor, and Alito,” (although he was able to point to a handful of cases where Alito joined a 5 justice majority that included one other conservative and three liberals). The four other conservatives, Bhatia added, “are more prone to creating that sort of lineup.”

In contrast to Alito, some of his fellow conservatives have joined 5-4 decisions that absolutely enraged many Republicans. Chief Justice John Roberts famously cast the key fifth vote saving Obamacare, while Justice Anthony Kennedy cast the fifth vote striking the anti-gay Defense of Marriage Act. Even Justice Antonin Scalia, the Court’s most outspoken conservative, once broke with the other four conservatives to join the liberals in support of a state fair lending law.

Nor is Alito’s partisanship matched by the Court’s left flank. Both Justices Stephen Breyer and Elena Kagan joined the Court’s conservatives in rewriting Obamacare to make its Medicaid expansion optional, a decision that deprived millions of Americans of health coverage. Justice Ruth Bader Ginsburg broke with her fellow liberals in a case brought by unions seeking to make it easier for them to collect funds. Justice Sonia Sotomayor sided with the conservatives in a major privacy case.

Fahrenheit 451

Alito is a reliable partisan, but it would be a mistake to dismiss him as a substanceless hack. Alito may be the smartest member of the Court’s conservative bloc, and he is their best questioner. Recounting the oral arguments in the Citizens United campaign finance case in his book The Oath, Supreme Court reporter Jeffrey Toobin recalled that “[i]t was easy to tell which way Alito was leaning, because his questions were so hard to answer for the lawyer he was targeting.Alito had a radar for weak points in a presentation.”

Indeed, Alito asked a question during the Citizens United argument which has come to define that case for many conservatives. If the Constitution permits campaign finance law to regulate movies and television ads intended to influence an election, Alito asked, could the law also do “the same thing for a book?” After Malcolm Stewart, a longtime Justice Department attorney tasked with arguing this case while the newly inaugurated President Obama was still filling the top jobs in the Solicitor General’s office, answered that books could be regulated under campaign finance law, the argument descended into what Toobin labeled an “epic disaster.” Alito had somehow recast a case about whether corporations could spend unlimited money to shape electoral results into a case about banning books.

Several months later, when Solicitor General (and future Justice) Elena Kagan reargued the case, she tried to undo the damage Alito’s question had caused by announcing that “[t]he government’s answer” to his question “has changed.”But the damage had already been done. Alito’s single question continues to inspire conservative talking points to this day. Just last month, Sen. Ted Cruz (R-TX) labeled supporters of campaign finance regulation “Fahrenheit 451 Democrats.”

In 2005, When President George W. Bush announced Alito’s nomination to the Supreme Court, he praised his nominee as someone who “understands that judges are to interpret the laws, not to impose their preferences or priorities on the people.” Less than a decade later, Alito rewrote American religious liberty law, and he did so despite an explicit statement by Congress indicating that Hobby Lobby should have come down the other way. Along the road to Hobby Lobby, Alito made the workplace a harsher, meaner place for women. He inspired talking points for Ted Cruz. And he has an unblemished record as the most committed partisan on the Court.

And, unlike the many partisans in Congress and other elected positions, Alito cannot be voted out of office. His appointment to the Court lasts for his entire life.

Scalia: Constitution doesn’t protect ‘only the blacks’

Justice Antonin Scalia has previously called for an end to “racial entitlements“.  Now he  has doubled down by saying that the 14th Amendment is for everyone, not only “the Blacks”.  Which is actually true on its face.  But, in 2011 he argued that the Constitution  does not protect gays or women.

Thus, Scalia has some explaining to do.  Just who does he think is protected by the 14th amendment and who is not?  Inquiring minds want to know…

The Huffington Post

During oral arguments on an affirmative action case on Tuesday, Supreme Court Justice Antonin Scalia said the 14th Amendment protects everyone, not “only the blacks.”

The quote was tweeted by the New York Times’ David Leonhardt:

The high court debated Tuesday whether voters can ban affirmative action programs through a referendum. The case is centered around a 2006 Michigan vote that approved a ballot initiative amending the state’s constitution to ban affirmative action programs in higher education.

Scalia has brought race into previous arguments. In February 2013, Scalia suggested that the continuation of Section 5 of the Voting Rights Act represented the “perpetuation of racial entitlement,” saying that lawmakers had only voted to renew the act in 2006 because there wasn’t anything to be gained politically from voting against it.

Democrats Introduce Bill that Could Lead to Impeachment for Justices Thomas and Scalia

I’m not sure if Justices Scalia and Thomas can actually be impeached but the idea is intriguing nonetheless…


On Thursday, a group of Democratic lawmakers proposed a law to establish a Code of Conduct  for the Supreme Court.

It’s surely to have Supreme Court Justices Thomas and Scalia quaking in their Tea Party boots because it would mean they would actually have to be independent of political and other influences. They would also have to have the appearance of independence.  They would have to stay away from political activity. That part would be really hard.

As it stands, this law would help guarantee that Supreme Court Justices are held to the same ethical standards we expect of other judges.

As Senator Blumenthal said:

This legislation’s goal is to preserve public trust and confidence – the lifeblood of the Supreme Court – after claims of questionable conduct by some Justices, No Justice, any more than a judge, should advance a partisan cause or sit on a case involving a personal friend or interest. There is no persuasive reason in law or logic why Supreme Court Justices should not be held to the same high standard as other federal judges.

The proposed law holds the Supreme Court to the same standards required of judges in the federal court system. Currently, Justices on the Supreme Court decide for themselves if they should recuse themselves from cases in which they may have a personal stake or in Thomas’ case, his wife has a political or financial stake as a holy roller in the Tea Party.

Justices Thomas and Scalia who attended a few partisan fundraisers also ruled in favor of the conservatives raising questions about their independence.  This was especially true in Citizens United because that ruling undid decades of established law.

Both of these actions violate the code of conduct already in place for Federal court judges.

We saw how well leaving Supreme court Justices to their own devices worked out when Justice Thomas ruled on the Affordable Care act, while his wife Ginni was  paid to lobby against the law.   The fact that Thomas “forgot” ,  to disclose Ginni’s income from lobbying against healthcare – even after she supposedly ceased lobbying against healthcare doesn’t help.  That would have been more than just an oops moment had there been a code of conduct for the Supreme Court. Thomas’  conflict of interest problems are not restricted to benefits to Ginni.

Questions about Thomas and Scalia’s judicial independence are nothing new.  We saw it when both Supreme Court Justices attended a  Koch Brothers fundraiser in 2010 and the Federalist Society fundraiser  they attended in 2011, Thomas’ failure to disclose the sources Ginni’s income for six years also came out in 2011.    A code of ethics for the Supreme Court is a bill whose time came a few years ago and has increasing importance given Ginni Thomas’s involvement with Groundswell.

As noted by Media Matters,

The recent Groundswell memoranda obtained by David Corn of Mother Jones reveal that these conflicts are getting worse.

Ginni Thomas was the founder and leader of Liberty Central, a political nonprofit “dedicated to opposing what she characterizes as the leftist ‘tyranny’ of President Obama and Democrats in Congress.” The group wasfunded by Harlan Crow, frequent patron of the Thomas’ projects and causes and a financial supporter of right-wing campaigns such as the “swift boat” attacks on then-presidential candidate John Kerry and the advertising push to confirm President George W. Bush’s Supreme Court nominees. Crow also serves on the board of the American Enterprise Institute, whose Edward Blum brought the two most recent attacks on the Voting Rights Act and affirmative action before the Supreme Court. Justice Thomas favored Blum’s positions against progressive precedent on both civil rights issues.

Had Federal Court judges been as ethically challenged  as Clarence Thomas, they would have been forced to resign. Considering that the Supreme Court is the highest court in the land, it seems the bar for ethical standards should be the same as those for lower courts – if not higher.

If the Supreme Court had a code of conduct, Thomas would have had to recuse himself on several cases in which his wife’s high profile within the Tea Party would scream of bias.  Had he failed to do so, there would be a legal basis with teeth to seek Thomas’ resignation.  For Thomas and Scalia defenders  tempted to question the constitutionality of holding Supreme Court Justices to ethics, Article 3 of the constitution says justices “shall hold their offices during good behaviour. If independence from pillow talk with a political lobbyist isn’t good behavior, I don’t know what is.

Let’s face it, if you are sleeping with someone within a political party whose agenda is to prevent certain classes of eligible voters from voting, the odds of forgetting that fact while considering the constitutionality of the Voting Rights Act are zero – or at least it sure looks that way to any reasonable person.  The same holds true when you at least look like you might be having pillow talk with someone with a political stake in the Defense of Marriage Act.

One can point to Justice Kagan’s ethical standards as proof that Supreme Court Justices can and do take principles like judicial independence and the appearance of it seriously.  Then one is reminded of Justices Thomas and Scalia.

This law would address one of the many problems created by the sort of corruption that has become synonymous with the Republican Party and its puppet masters.  But then, that would mean doing something constructive and it would also mean that the separation of powers are in fact separate, rather than subject to pillow talk between one Supreme Court Justice and one member of the Groundswell propaganda alliance.


Sotomayor Leads Liberal Justices In Defending The Voting Rights Act

Supreme Court justice Sonia Sotomayor is acknowledged by President Barack Obama at the Congressional Hispanic Caucus Institute’s 34th Annual Awards Gala at the Washington Convention Center, Wednesday, Sept. 14, 2011 in Washington. (AP Photo/Charles Dharapak)
Supreme Court justice Sonia Sotomayor is acknowledged by President Barack Obama at the Congressional Hispanic Caucus Institute’s 34th Annual Awards Gala at the Washington Convention Center, Wednesday, Sept. 14, 2011 in Washington. (AP Photo/Charles Dharapak)


Seemingly aware that they were outnumbered and fighting an uphill battle, the four liberal justices on the Supreme Court defended the Voting Rights Act during Supreme Court oral arguments Wednesday with a mix of sharp questions, appeals to history, and indirect rejoinders to the more conservative justices.

All four of them participated actively in oral arguments. None was more emphatic than Justice Sonia Sotomayor.

The Obama-appointed justice asked the first question of the day. She hammered Burt Rein, the lawyer representing the challengers, Shelby County of Alabama, over its record of discrimination. The county contends that Section 5 is unfair to its residents and other jurisdictions that it requires to obtain federal pre-clearance before changing their voting laws.

“Assuming I accept your premise, and there’s some question about that, that some portions of the South have changed, your county pretty much hasn’t,” Sotomayor said of Shelby County, which is 90 percent white. “In the period we’re talking about, it has many more discriminating -­- 240 discriminatory voting laws that were blocked by Section 5 objections. … You may be the wrong party bringing this.”

“Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?” she asked, wondering why the Court should invalidate Section 5 if, as she argued, any formula would cover Shelby County. “Discrimination is discrimination.”

While Section 5 was taking a beating at the hands of the conservative justices, the four liberal-leaning justices targeted various audiences. Sometimes they played to each other, sometimes to the conservative justices they hoped to sway, sometimes to the future Court, sometimes to the public audience.

Justice Stephen Breyer several times tried to needle the lawyers defending the Voting Rights Act into addressing conservatives’ concerns. Other times, he did so himself.

“The disease is still there in the state,” he said. “Of course this is aimed at states. What do you think the Civil War was about? Of course it was aimed at treating some states differently than others.”

Justice Ruth Bader Ginsburg took the liberty of knocking down what she viewed as a straw man argument by attorney Rein.

“Mr. Rein, you keep emphasizing over and over again in your brief registration and you said it a couple of times this morning,” she said. “Congress was well aware that registration was no longer the problem. This legislative record is replete with what they call second generation devices. Congress said up front: We know that the registration is fine. That is no longer the problem. But the discrimination continues in other forms.”

Justice Elena Kagan twice said the Section 5 coverage formula has been working “pretty well” when it comes to snuffing out voter discrimination where it’s most likely to emanate. When Rein argued that it’s the courts, not Congress, who should determine whether the coverage formula is legitimate, she sounded shocked.

“That’s a big new power you’re giving us,” Kagan said, “that we have the power to determine when racial discrimination has ended. I did not think we had that power.”

In the final moments of the argument, Sotomayor, apparently taken aback by Justice Antonin Scalia’s statement that Section 5 is a “perpetuation of racial entitlement,” put the question to Shelby County’s lawyer.

“Do you think that the right to vote is a racial entitlement in Section 5?” she asked Rein. When he dodged, she asked him again: “I asked a different question. Do you think Section 5 was voted for because it was a racial entitlement?” He dodged again.


Scalia Suggests ‘Hand-Held Rocket Launchers’ Are Protected Under Second Amendment

It’s time for wacky Supreme Court Justice Antonin Scalia to step down.  There is a possibility that the onset of dementia may have taken over his already depraved mind.

This is yet one more important reason to vote wisely.  Whichever candidate you choose to vote for, know that he will probably pick at least two SCOTUS candidates in the next four years.  In my opinion, the ideology of the candidates will reflect whether the Court will remain staunchly conservative or tip the scales to a more progressive Court.

Elections matter and they DO have consequences.

Think Progress

This morning on Fox News Sunday, Justice Antonin Scalia reiterated just how extremely his Constitutional originalism can be applied. Referring to the recent shooting in Aurora, CO, host Chris Wallace asked the Supreme Court Justice about gun control, and whether the Second Amendment allows for any limitations to gun rights. Scalia admitted there could be, such as “frighting” (carrying a big ax just to scare people), but they would still have to be determined with an 18th-Century perspective in mind. According to his originalism, if a weapon can be hand-held, though, it probably still falls under the right o “bear arms”:

WALLACE: What about… a weapon that can fire a hundred shots in a minute?

SCALIA: We’ll see. Obviously the Amendment does not apply to arms that cannot be hand-carried — it’s to keep and “bear,” so it doesn’t apply to cannons — but I suppose here are hand-held rocket launchers that can bring down airplanes, that will have to be decided.

WALLACE: How do you decide that if you’re a textualist?

SCALIA: Very carefully.

Watch it…

Scalia’s across-the-board defense of weapon-carrying laws is not new, having been at the heart of his majority opinion in District of Columbia v. Heller, which protected an individual’s right to possess firearms. However, his nonchalant suggestion that private citizens could legally carry rocket launchers so long as they’re “hand-held” suggests just how willing he is to protect an armed nation.

Such originalism is a dangerous distortion of 21st-Century reality. There is no conceivable way to apply the Founding Fathers’ understanding of a  ”well-regulated militia” armed with slow-to-load, hard-to-aim muskets to today’s weapon technology. Arguably, the full extent of alleged gunman James Holmes’ munitions could have easily decimated an entire brigade of musketeers before they’d even loaded their first ball.

Scalia: Blame Congress For My Decision To Turn Campaign Finance Into The Wild West

Think Progress

Two years ago, Justice Scalia cast one of the five votes necessary to unleash unlimited corporate money on American democracy in the Supreme Court’s egregious Citizens United decision. Yet, at a panel in South Carolina this weekend, Scalia tried to lay the blame for the absurd campaign finance system he created at everyone’s feet but his own:

Super PACs have raised more than $30 million just three races into the 2012 presidential race, according to the website, run by The Center for Responsive Politics. TV advertising alone in South Carolina, which is voting Saturday, is estimated at $12 million, or nearly $27 per voter when calculated using the 2008 Republican primary turnout numbers. […]

Scalia said the blame for this type of system shouldn’t fall on the Supreme Court, which he said decides merely whether the system is legal under the U.S. Constitution. Instead, he said the ones who have to change things are the politicians who created the system and the voters who often reward the candidates who spend the most money.

If the system seems crazy to you, don’t blame it on the court,” Scalia said, during a discussion in front of South Carolina lawyers that lasted for more than an hour.

Scalia’s attempt to shift blame is, frankly, ridiculous. While America’s pre-Citizens Unitedcampaign finance laws were far from perfect, they were at least adequate to prevent a handful of corporations from buying and selling elections. Congress passed a ban on corporate money in politics 65 years ago. The Supreme Court, with Scalia casting the deciding vote, killed that ban. If it wasn’t for the Supreme Court, the ban would still be in place.

Moreover, while Citizens United is best remembered for opening the floodgates to corporate money in politics, it also led to the creation of “Super PACs” which allow wealthy individuals and corporations to spend unlimited sums of money on shadow campaigns intended to elect particular candidates. Shortly after Citizens United was handed down, a key lower court decisionused it to declare so-called “independent expenditures” a free for all for the very wealthy. Billionaires are still forbidden from giving unlimited money to a campaign, but donations to “independent” groups such as Newt Gingrich or Mitt Romney’s Super PAC are entirely unbound.

To the extent that Citizens United still allows some leeway to regulate campaign finance, the fact that Congress has not done anything to enact new regulation after the Supreme Court blew our existing system up can be explained with just one chart:

That’s the top 20 spenders on the 2012 election — 17 of whom are conservatives or Republicans. In other words, Scalia’s action in Citizens United doesn’t just mean a flood of corporate and other money, it means that this money overwhelmingly favors one political party. Republican lawmakers are more than smart enough to figure this out, and that gives them all the incentive they need to block any attempt to fix the mess Citizens United created.

Scalia and Thomas dine with healthcare law challengers as court takes case

The Supreme Court of the United States has decided to hear a challenge to the POTUS’ Health Care Law.  Having said that, what the hell are Justices Scalia and Thomas doing dining with the probable attorney who will argue the case against the Health Care law?

They don’t seem to care about the appearance of impropriety anymore.  When did we fall down the rabbit hole?   Was it after Bush v Gore or was it after Citizens United?

The Los Angeles Times

The day the Supreme Court gathered behind closed doors to consider the politically divisive question of whether it would hear a challenge to President Obama’s healthcare law, two of its justices, Antonin Scalia and Clarence Thomas, were feted at a dinner sponsored by the law firm that will argue the case before the high court.

The occasion was last Thursday, when all nine justices met for a conference to pore over the petitions for review. One of the cases at issue was a suit brought by 26 states challenging the sweeping healthcare overhaul passed by Congress last year, a law that has been a rallying cry for conservative activists nationwide.

The justices agreed to hear the suit; indeed, a landmark 5 1/2-hour argument is expected in March, and the outcome is likely to further roil the 2012 presidential race, which will be in full swing by the time the court’s decision is released.

The lawyer who will stand before the court and argue that the law should be thrown out is likely to be Paul Clement, who served as U.S. solicitor general during the George W. Bush administration.

Clement’s law firm, Bancroft PLLC, was one of almost two dozen firms that helped sponsor the annual dinner of the Federalist Society, a longstanding group dedicated to advocating conservative legal principles. Another firm that sponsored the dinner, Jones Day, represents one of the trade associations that challenged the law, the National Federation of Independent Business.

Another sponsor was pharmaceutical giant Pfizer Inc, which has an enormous financial stake in the outcome of the litigation. The dinner was held at a Washington hotel hours after the court’s conference over the case. In attendance was, among others, Mitch McConnell, the Senate’s top Republican and an avowed opponent of the healthcare law.

The featured guests at the dinner? Scalia and Thomas.

It’s nothing new: The two justices have been attending Federalist Society events for years. And it’s nothing that runs afoul of ethics rules. In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal justices.

If they were, they arguably fell under code’s Canon 4C, which states, “A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event.“

Nevertheless, the sheer proximity of Scalia and Thomas to two of the law firms in the case, as well as to a company with a massive financial interest, was enough to alarm ethics-in-government activists.

“This stunning breach of ethics and indifference to the code belies claims by several justices that the court abides by the same rules that apply to all other federal judges,” said Bob Edgar, the president of Common Cause. “The justices were wining and dining at a black-tie fundraiser with attorneys who have pending cases before the court. Their appearance and assistance in fundraising for this event undercuts any claims of impartiality, and is unacceptable.”

Scalia and Thomas have shown little regard for critics who say they too readily mix the business of the court with agenda-driven groups such as the Federalist Society. And Thomas’ wife, Ginni, is a high-profile conservative activist.

Moreover, conservatives argue that it’s Justice Elena Kagan who has an ethical issue, not Scalia and Thomas. Kagan served as solicitor general in the Obama administration when the first legal challenges to the law were brought at the trial court level. Her critics have pushed for Kagan to recuse herself from hearing the case, saying that she was too invested in defending the law then to be impartial now. Kagan has given no indication she will do so.

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Justice Clarence Thomas’ Silence Unmatched for 40 Years

I often wonder what this man is hiding?  I was discussing Thomas with a friend yesterday and we both agree that during his confirmation hearing the GOP senators knew he was “guilty as charged” in the Anita Hill brouhaha, yet did everything in their power to destroy her reputation while allowing the character flawed Thomas to pass the confirmation hearing with a 52–48 vote on October 15, 1991.

One of the main senators that stood out in those hearings was Senator Orin Hatch.  His treatment of Ms. Hill was a disgrace.  The entire proceeding was a disgrace.

I truly think Justice Thomas is unqualified to participate as a justice in the highest court in the land.

CBS News

Supreme Court Justice Clarence Thomas celebrated an unusual anniversary today: It’s been five years since he’s asked a question during oral arguments.

Over the years Thomas has read opinions from the bench, but the last time he spoke up spontaneously during an exchange among the justices and lawyers was in February 2006.

His silence during questioning has sparked debate among court watchers over whether a justice should participate in oral arguments.

Some say that the hearings are largely ceremonial, but others see the opportunity to engage in a public dialogue with lawyers on both sides of a case as a crucial tool for justices to try to persuade one another on a matter of law.

While the court does not have official rules mandating the role of each justice during oral arguments, tradition holds that participation is the norm.

“No single justice has gone even one full term without asking a question in the last 40 years,” said Timothy R. Johnson, professor of political science at the University of Minnesota.

Johnson, who has studied the issue for an upcoming book, said that on average Justice Antonin Scalia is the most verbose of the justices, speaking about 27 times per argument session. Compare that to Justice Thomas, who speaks on average almost zero.

Thomas has said that he goes into the oral argument sessions knowing how he will decide, a case so he doesn’t ask questions.

“So why do you beat up on people if you already know … [the outcome of the case]? I don’t know because I don’t beat up on them. I refuse to participate. I don’t like it, so I don’t do it,” he said in 2009, according to The Associated Press.

Although Thomas last spoke in 2006, his 2002 comments during oral arguments on a case about a law banning cross burning are perhaps those most remembered for the stir they created.

He told a government lawyer that he might be “understating the effects of the burning cross,” which stunned those in the audience who were surprised to hear the justice speak up so passionately on the issue.   Continue…