I disagree with Hightower.

What you will find here is: a centrist's view of current events;
a collection of thoughts, arguments, and observations
that I have found appealing and/or amusing over the years;
and, if you choose, your civil contributions which will make it into a conversation.

He not busy bein' born, is busy dyin'. - Bob Dylan

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Showing posts with label court. Show all posts
Showing posts with label court. Show all posts

Friday, October 11, 2013

No Comment


Dear Senate Judiciary Committee members,

Every time there is a Supreme Court Justice nominee they come before your committee and you ask them what they think about this or that and they say: “I can’t comment on that because it might come before the court.”

And you then say, “Oh yes.  I forgot about that.”

Why don’t you consider the following.  Well ahead of time of the hearings, give the nominee 2 or 3 recent Supreme Court cases and ask them to study the transcript of the case and render an opinion in the same way they would have done if they had been on the court at the time the case was heard.  

They may object that the matter might come before them if they are on the court. 

Explain to them that that is true and that if it does then it will also come before all of the other justices who rendered a real verdict.  Therefore the nominee (if confirmed) will be in exactly the same position on this case as all of the other (current) justices.  


On what basis will they then object to indicating what their verdict would be?

Tuesday, December 11, 2012

Affirmative Action 2


The Data Plan 

What will replace affirmative action if the Supreme Court kills it?

from the New Republic


Mark Wilson/Getty Images

Ever since conservative courts and voters began trying to eliminate affirmative action in the 1990s, universities have sought creative ways to boost their enrollment of minority students without explicitly relying on race. When California voters banned racial preferences in public universities in 1996, for example, the University of California responded by adopting admissions preferences based on socioeconomic status instead. And after a federal appellate court struck down the University of Texas’s race-based affirmative action program, the school adopted a plan that guaranteed admission to those students graduating in the top 10 percent of their high school class.

When the Texas effort—known as the Top Ten Percent Plan—failed to generate the racial diversity school officials sought, the university returned to using explicit racial preferences. Those preferences are now being challenged in the Supreme Court case of Fisher v. Texas, and many expect the conservative justices to deal what could be a fatal blow to race-based affirmative action at American public universities. Once again, however, the universities have a secret weapon they hope will allow them to circumvent such a ruling: data mining.

Whether it’s used in airport security or online advertising or education, data mining works by finding patterns and correlations. Based on census data, the spending patterns of my neighbors, and my Washington, D.C., ZIP code 20016, the Nielsen Company classifies me as someone who lives among the “Young Digerati”—that is, high-income consumers who are “tech-savvy and live in fashionable neighborhoods on the urban fringe.” My fellow Washingtonians a few miles to the southeast in Anacostia are categorized using very different terms. They are the “Big City Blues,” a community of “low-income Asian and African-American households occupying older inner-city apartments.” Based on where we live and what we spend, Nielsen creates aggregate predictions about our likely buying habits so that advertisers can send us ads that reflect our interests. That’s a little creepy—but then again, we’re talking about advertising. To some education experts, however, data mining also represents the future of public education.

After Michiganders voted in 2006 to ban the use of racial preferences in college admissions, the University of Michigan wasn’t willing to give up on the goal of enrolling more minority students. So it turned to a data-mining program called Descriptor Plus, which was originally developed by the College Board to help admissions officers more efficiently target likely students. The program employs the same kinds of algorithms that Nielsen uses to provide consumer data to advertisers based on demographic patterns and spending habits, but in this case, it sorts those data into categories that are useful for higher-education institutions. Descriptor Plus works by dividing the country into 180,000 geographic neighborhoods, and then regrouping those neighborhoods into 30 more manageable “clusters” whose residents share similar socioeconomic, educational, and racial characteristics.

Take two distinct clusters identified by Descriptor Plus. High School Cluster 29 is most likely to include high-achieving students who have aced standardized tests, stand out in their elite private high schools, and demonstrate superior math ability. “There is very little diversity in this cluster,” notes Descriptor Plus. By contrast, the students in High School Cluster 30 are much more likely to be ethnically diverse. While also college bound, they have far fewer resources than the junior achievers in Cluster 29. “These students,” concludes Descriptor Plus, “will typically end up at a local community college.”

Armed with the Descriptor Plus categories, the University of Michigan could give preference to applicants from low-income clusters like 29, in which African-American students were disproportionately represented, without explicitly relying on race. The method worked. Two years after Michigan voters banned the use of racial preferences, Michigan’s freshman class saw a 12 percent increase in African-American enrollment, even as the overall class size shrank and other minority groups lost ground.

If the Supreme Court’s decision in Fisher puts new restrictions on racial preferences, it is likely that universities will expand their use of data mining to get around the ruling. But data mining has proved to be an even less effective a way of promoting racial diversity in the classroom than the explicit preferences it’s designed to replace. In a new book, “Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It,” Richard H. Sander and Stuart Taylor, Jr. note that as seniors in high school, African Americans are more likely than whites to express interest in majoring in science, technology, engineering or math majors, known as STEM. Once admitted to elite schools, however, African Americans pursuing STEM majors were more than half as likely as whites to finish with a STEM degree: students who feel less prepared than their classmates tend to leave science for less challenging humanities courses after their freshman year. Sanders told me that the minority students admitted under Descriptor Plus are, by definition, less academically qualified than those admitted under the Texas' Top Ten Percent Plan—because if they had graduated in the top 10 percent of their class, they would have gained automatic admission without the Descriptor Plus boost. By admitting minority students with lower levels of academic preparation than those admitted under the Top Ten Percent Plan, Sanders said, programs like Descriptor Plus might exacerbate the problem of racial mismatch and self-segregation.

WHILE LEGAL PRESSURES on affirmative action prompted the initial expansion of data mining as an admissions strategy, schools are also beginning to use it for other purposes—and in ways that may result in ever more segmentation and segregation of students based on their racial backgrounds, tastes, and preferences.

Tristan Denley, the provost of Austin Peay State University in Tennessee, has developed data mining programs designed to steer students toward the courses and majors in which they are most likely to succeed. One such program, Degree Compass, uses predictive analytics to estimate the grade a student is most likely to receive if he or she takes a particular class. It then recommends courses in which the student is likely to earn the highest grades. “It uses the students’ transcript data, all of their previous grades, and standardized test scores, and it combines that with the data we have with thousands of similar students who have taken the class before,” Denley told me. He said the predictions are accurate—within a half letter grade, on average. And he noted that students from lower socioeconomic backgrounds who used the program to select their classes experienced a more pronounced grade swing—from lower to higher grades—than students from higher socioeconomic groups, perhaps because they were being steered into easier courses. Although the program also records students’ race and ethnicity, Denley said he found a disproportionate grade swing in students from lower socioeconomic groups, but not from minority groups in particular.

Another program his university uses, My Future, employs similar predictive analytics to recommend majors in which students are most likely to get good grades and graduate on time. “Students are less likely to choose sociology as an incoming major,” says Denley, “because people don’t do sociology in high school; instead, lots of students choose business, pre-law or pre-med.” He hopes that by exposing students to a broader range of majors they may not have considered, My Future will help to match them with fields and careers in which they’re likely to thrive.

As college and even public high school and elementary schools record the race of students as part of their data-mining programs, there’s likely to be increased pressure to steer students with similar backgrounds into similar classes, reducing diversity in the classroom as a whole. Public high schools and even some elementary schools are beginning to input information about students’ race and ethnicity in giant databases that track their academic performance in order to construct models about what kinds of students are most likely to succeed in particular classes.

Highland Park Elementary School in Pueblo, Colorado, recently adopted a data mining program called Infinite Campus that is operated by Pearson, the textbook publishing giant. Ronda Gettel, who coordinates math and English programs at Highland Park, and she tells me she was shocked when her supervisors asked her to input information about the ethnicity of individual students while grading a math and reading program. “I was putting in how they self-reported their ethnic background, whether they’re black or Hispanic, and whether they’re getting free or reduced lunches, and their socioeconomic patterns,” says Gettel. “I thought maybe we shouldn’t be doing this—I’m a person that’s against tracking.

Of course, guidance counselors have always had the power to steer students toward classes that coincide with their interests and ability levels. But Gettel and others are concerned that by slicing and dicing students into profiles and clusters, data mining threatens to segregate classrooms in more permanent ways, creating profiles from which students can’t easily escape, and placing minority students into less rigorous classes because of the predictions of computer programs.

Diversity in the classroom is valuable because it encourages students to interact with peers from very different backgrounds and to explore classes and careers that might not have occurred to them before they enrolled. But not all human choices can be predicted by algorithm. If the Supreme Court eliminates the use of race-based affirmative action, and drives schools to pursue an ersatz diversity through profiles and computers models, it may inadvertently encourage the proliferation of technologies that allow even less consideration of students as individuals than the racial preferences they’re designed to avoid.

As a minor point I include one of the comments to the original in the NR that caught my attention.  The reference is in line 8 of paragraph 7.

12/08/2012 - 7:40pm EDT |

You write: "...African Americans pursuing STEM majors were more than half as likely as whites to finish with a STEM degree". You probably mean "less than half as likely". Or maybe not; it's not clear what you mean. One of my grade school teachers, Eleanor Wilson Orr went on to teach math in high school, many of her students were Black; she concluded that one of the causes for the difficulty they had with math is that Black English lacks certain kinds of language to describe quantity. She wrote a book about this and what to do about it, titled Twice as Less because some of her students would say "twice as less" where she would say "half as much". Maybe Mr. Rosen should take a look at it.


Monday, July 9, 2012

A Political Court

Those who would like a more political court are invited to check out how things work in Egypt:

Egypt’s highest court has spoken: the decision to dissolve the country’s parliament is binding. Monday’s ruling is a blow to newly-elected president Mohammed Morsi, whose Muslim Brotherhood party won most seats in the chamber in a the recent election. The military has enforced the court order to dissolve the parliament since last month, after some party members contested seats reserved for independents. In a presidential decree issued Sunday, Morsi ordered parliament to reconvene, and held an emergency session of the assembly. Egypt’s Supreme Court responded Monday saying its ruling to disband parliament is “final and not subject to appeal.”

For more see the BBC story.

Monday, July 2, 2012

Civil Discourse and the ACA

You will see all sorts of interpretations of how Chief Justice Roberts was, in one way or another, scheming when he decided how he would vote in the ACA case.

I believe that for democracy to work we have to have a civil discourse and I believe that begins by assuming that the opposition has honorable motives.  That's right, even if in some cases they don't have such motives.

This case presented us with some good evidence that doing so is not foolish.

Many people think that judges do, and some people think that they should, cast their vote on the bench in the same way that a legislator votes:  Do I want this to become law?  That is not their job.  Their job is to keep the political branches inside the bounds of the Constitution.  As Roberts said in this case, "It is not our job to say whether it is a good law or whether it is a wise law."  Their job is to say whether the Constitution permits that law to be made.  There is no appeal beyond them which means that they are very powerful and it also means that it is imperative that they act with great restraint.

The ACA case presented good examples of judges making decisions that were contrary to what most people think is the way they would have voted if they had been in the legislature when the bill came up.
Roberts decision is well known.  But there was another decision which limited the federal government's power vis a vis the states.  Two of the liberals on the court ( Kagan and Breyer) voted with the 5 conservatives in saying that, if a state chose not to take advantage of the expanded Medicaid program, then the Federal Government could not withdraw funds from the original Medicaid program.  This was viewed as a victory for the conservative values of limiting federal power and maintaining federalism.


The AZ immigration case offered some other examples.


Perhaps at least one branch of the Government is stepping back from precipice of rancid partisanship.


But, as you know by now, I am a hopeless optimist.

Friday, June 29, 2012

Affordable Care Act

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As predicted here ( see Is the Affordable Care Act Constitutional?  from April 20) the SC did not let semantics stand it its way and OKd the ACA.  I got  Kennedy wrong, but Roberts right (sort of).

The leftist columnists have been ranting for weeks that we were going to get a blatantly partisan ruling by the reactionary right that represents the tea party wing of the Republican Party.  Paul Begala intended it to be hyperbole, but the reality of their partisanship comes through in his piece about being left in the lurch by the decision.  From damn you John Roberts : " I'd already drafted a bitter, bilious, bombastic broadside against the right-wing hacks on the Republican Court. (Oops, my side won, so they're the highly esteemed and completely independent Supreme Court.)"


They were stunned into a moment of silence, but it did not last long.

I believe the most important part of this law is the requirement that businesses which do not provide health care will be required to pay a fine which is much less than the cost of health care.
This will motivate them to withdraw from employer provided health care.
This will lead to an increase in support for national health insurance.
That will lead, eventually, to national health insurance.

(revised from yesterday's version)
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Tuesday, May 1, 2012

mediocre judges

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In 1970 President Richard Nixon nominated Court of Appeals Judge G. Harrold Carswell of Florida to the United States Supreme Court. There was considerable opposition to the nomination based on the claim that the judge was mediocre. In the Senate, Carswell was defended by Roman Hruska R (NE) as follows: ''Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters and Cardozos.''
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Friday, April 20, 2012

Is the Affordable Care Act constitutional?

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For those of you who cannot wait until June I thought that I would go ahead and tell you how the Supreme Court will rule on this question. (I am not an attorney, but I once had dinner with one.)

The decision will be yes, the ACA is constitutional.

The rationale will be as follows:

1. Clearly the government has a right to require a citizen to pay for health care via taxation. In fact, with Medicare the government requires a 20 year old citizen to pay taxes for health care that he will not even begin to receive until 45 years later.

2. The ACA mandate is a tax* by another name.

3. The court will not overturn a major piece of legislation on the basis of semantics.

A long shot: The yes vote will be at least 6 and the opinion will be written by the CJ.

However it goes, which ever side loses this argument will have their supporters outraged by the loss and they may find a silver lining in the fall election.

Check back here in June when I will either crow or eat crow.

*Perhaps it was not labeled a tax because its authors had promised not to raise taxes.
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Sunday, April 15, 2012

Supreme Court Justice Scalia

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Scalia also disappointed me in the SCOTUS hearings on the Affordable Care Act.

For starters, I think it is a legitimate point to ask, “If the government can make you buy healthcare insurance, then what can they not make you do?” However, if you are a SC justice speaking during the hearing, then you should find an example to illustrate that point that is different from the one (broccoli) that has been bandied about in political circles. Using broccoli as he did reinforces his opponents’ characterization of him as a shill for conservatives. (PS It is a reasonable position that healthcare insurance is special in that regard.)

Second, suppose they decide that the mandate is unconstitutional. Then there is the business of determining whether each point in the 2,700 page bill can stand alone (independent of the mandate.) I agree with him that that is the job of Congress (because it would be very hard to decide what the congress would have intended without the mandate.) I would even consider it reasonable if they thought the length of the bill alone was sufficient to send it back to congress. I understand that Nancy Pelosi is still waiting to find out what is in the bill. But it sounds childish to say out loud, “You really want us to go through these 2,700 pages?”

Finally, I think that, like Caesar’s wife, members of the court should be beyond reproach, in this case about being political. Talk about the “cornhusker kickback” and needing “60 votes in the Senate” seemed to me to be quite inappropriate.
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Sunday, April 8, 2012

constitutional law professor

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I find Obama’s constitutional remarks depressing.

In the 2010 SOTU he claimed that the Citizen’s United decision by the Supreme Court would open the floodgates of contributions to our political campaigns by foreign corporations. Alito shook his head because those who wrote the decision in that case specifically noted that they were not touching the law about foreign corporations – Politifact called Obama’s remarks “mostly false.”

Then on April 2 his remarks about how it would be “unprecedented” if “unelected judges” (U S Supreme Court) were to overturn a federal law and take us back to Lochner in the thirties and I’m going what - what - what ?? The errors and flavor were stunning.
Well just review a few facts –

a) unprecedented – No, they’ve done it hundreds of times from very recently to all the way back to 1803 in Marbury v Madison which established that one of their main functions was to keep the elected branches inside the constitution. This is not subtle constitutional law theory it shows up in in US History 101.

b) unelected judges – It is true that the Supreme Court is unelected and I hope they stay unelected. In this context that expression is an epithet that is used to make an independent judiciary sound like a bad idea. If it sounded familiar to you it may be because it was used in the fifties and sixties by Strom Thurmond, Lester Maddox, et al who wanted to impeach those “unelected judges” because of Brown v Board of Education.

c) The problem with the Lochner reference was that that decision was in 1905, not the thirties, and the full name is Lochner v New York - it was a state law - not a federal one - that was at issue.

Now it seems like that there are two possibilities. Either he did or he did not know at the time that he was wrong about those things,
If he did not know, then they should quit referring to him as a constitutional law professor.
If he did know, then perhaps that is even worse.

Added at 5:45 PM 4/10/2012
A defense of Obama's comments can be found in The New Republic article:
Yes, Obama's Comments on the Court Made Sense
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Sunday, December 18, 2011

Gingrich and the courts

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One of the two things that I am furthest to the right on is the role of the courts.
I believe that the courts should stick to what the constitution says, not what they wish it said.
Pretend for a moment that you agree with me. What is the solution to this problem?
Elect people who will select judges that agree with that view of the role of judges.
Problem solved.

With that in mind, I want to express my dismay at what Speaker Gingrich is saying about the courts and what he would “do about them”.
"I was frankly just fed up with elitist judges imposing secularism on the country and fundamentally changing the American Constitution," Gingrich told reporters, adding that "it was clear to me that you have a judicial psychology run amok, and there has to be some method of bringing balance back to the three branches."

Well, no, they haven’t “run amok”. They are perhaps stretching their power to the limits just like any institution is inclined to do.

One of the main decisions that Newt has complained about is the 9th circuit court’s decision about the unconstitutionality of “one nation under god” being in the pledge of allegiance. There are two very important facts about that decision. One, the pledge wasn’t adopted by Congress until 1942 and the phrase “under God” wasn’t added to the pledge until 1954 and therefore its presence there has absolutely no support by the founders. Two, the decision was overturned by the Supreme Court! That is to say, (if it is a problem) the judicial branch itself provided an internal solution to this particular issue that he is so overwrought about!
Now that he has exaggerated this problem to the level of a constitutional crises, he offers his equally exaggerated “solution” :

“In order to restore balance between Congress, the White House, and the courts, Gingrich recommended ignoring rulings, impeaching judges, subpoenaing justices to have them explain their rulings and, as a last resort, abolishing the courts altogether.”

It's breathtaking. It is hard to know where to begin. Let’s start with the balance between the three branches and this idea that the Supreme Court is the most powerful of them. The Judiciary is totally dependent on the Executive to implement its decisions. The courts are totally dependent on the Executive and the Senate to staff itself. The Congress has the power to remove any member of the judiciary. The fact that Congress does not exercise that power should lead a rational person to assume that they do not believe that things are that far out of balance.

What kind of person turns a small problem into a big problem and then proposes a radical solution to it?

Has Gingrich even thought about how he will maintain an independent judiciary and the rule of law while he has Congress sending subpoenas to judges?

In the monthly report I expressed my distress with Newt when he indicated that he had abandoned the first amendment,
but God-Lordy he has really lost it now.
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Thursday, September 8, 2011

Lochner v New York

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To see a conservative view of this decision go to George Will on Lochner.

Thursday, March 3, 2011

activist judges 2

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In the third quarter of the 20th century, activism became part of the liberal tradition on the court, with Roe v Wade being the primary example. (I am prochoice by the way, but I wish Roe v Wade had been argued on the basis of the Ninth Amendment.) This is typically justified by arguing that the Constitution is a “living document”. Actually, it is a living document, with its changes coming in the form of amendments. But that is not what they mean. Getting an amendment passed is too hard, five justices is much easier.

Nowadays when people say that they believe in a "living Constitution" what they mean is one that lives up to their expectations of what it ought to say and has outlived those parts of it that they don't like.

There are two parts to the defense of this view from charges that it is activist, that is that it finds in the Constitution what one wants to find rather than what is there. I think that they are both powerful arguments in the public mind, but they seem to me to be examples of Argument by Confusion.

The first part is to say that there is no such thing as activism. As the Chief Justice of the KY Supreme Court said at one meeting that I attended: “If someone calls something an activist decision that just means that they don’t like that decision.” This argument is essentially an attempt to ridicule the notion of activism.

The second part is to offer an alternative definition of activist: an activist decision is one that overturns a precedent or a law. This definition is easy to apply. Of course, it is in conflict with one of the main functions of the Court which is keeping the other branches inside the bounds of the Constitution. This is perhaps a temporary argument to protect what the previous liberal courts have decided such as Roe v Wade. An example of that view can be found in activist judges
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Notice that the second definition of activist allows the Court to create all sorts of law while not being classified as activist.
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Monday, February 28, 2011

activist judges 1

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I think this term was originated to describe judges who went beyond the proper constraints that is placed on them by the Constitution. They embarked on the adventure of finding in the constitution not only what was there but also what they wished was there.
I think one of the earliest and worst examples was the Dred Scott Decision (1857)in which Chief Justice Taney decided that the Court should resolve the slavery issue. The Court essentially decided that not only was it constitutional for a slaveowner to pursue a runaway into a free state, but it was even unconstitutional for a state to prohibit slavery. That is that there could not be any "free states." Taney had to reach a long way for that.

To be clear, activism is not a liberal vs conservative issue. At least it is not in general. I’m not sure which “side” you would put Taney on. But the judges who decided Plessy v Ferguson, 1896, were activist judges on behalf of the popular cause of permitting the establishment of what was so delicately referred to as “Jim Crow legislation”. John Marshall Harlan dissented alone. They found in the Constitution what the society wanted them to find. The full meaning of it was that they simply ignored the 14th amendment and permitted the establishment of an American apartheid. The Warren Court’s Brown v Board of Education, 1954 reversed Plessy. Although Brown was bitterly opposed, Plessy was the activist decision. (see originalism 8-10-10 here for more)

An example of another activist decision in support of a conservative position is Lochner v. New York - 1905. The NY law in question limited the hours that bakers could be allowed to work in one shift or in one week. The court found the law in conflict with the due process clause of the 14th amendment. The state’s police power did not outweigh the "general right to make a contract in relation to his business." John Marshall Harlan and Oliver Wendell Holmes (and 2 others) dissented. Holmes apparently took a dim view of this attempt to write someone’s “preferred economic system” into the constitution: He noted, "Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory." History eventually supported Harlan and Holmes and the Lochner view was almost universally condemned.

Monday, January 24, 2011

Should They Stay or Should They Go?

This was in 4 separate posts.

part I
Last year in the State of the Union Address, Pressident Obama said,"With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections. (Applause.) I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems."

Justice Alito appeared to disagree with the President's interpretation of the Court’s Citizens United decision.

The President had accused the Court of admitting foreigners into the funding of our elections.

I thought it was excessive.

Part 2
Will the members of the Supreme Court come to the State of the Union?
After that Presidential condemnation from the podium, some of us wonder which members of the Supreme Court will attend the State of the Union address on Tuesday night. Scalia never attends because he says they “sit there like bumps on a log”, and Thomas thinks it is too partisan. Roberts and Alito have stated their discomfort with the Congressional “cheering and hollering” while they are required to sit there unmoved. Breyer always attends. I would expect that the new ones, Sotomayor and Kagan, would attend. The other two are toss-ups. My bet is Ginsburg will go (if healthy) and Kennedy won’t. It is possible though, that some of the four on the left will also have been offended by the President’s remarks about the Court last year and will not attend.
I agree with those who think that a partisan divide in the attendees is probably not a good idea.
I think that the policy should be changed and both the Court and the Military (the nonpolitical parts of the government) should not participate at all.

Part 3
As to the disagreement between Justice Alito and the President about exactly what the Citizens United decision said, it is worth noting that Pulitzer prize winner LINDA GREENHOUSE, who writes about the court for the NY Times, wrote: “Indeed, Mr. Obama’s description of the holding of the case was imprecise. He said the court had “reversed a century of law.
The law that Congress enacted in the populist days of the early 20th century prohibited direct corporate contributions to political campaigns. That law was not at issue in the Citizens United case, and is still on the books.”

Using the principle of "statement contrary to presumed bias" we can say that if someone at the NY Times says that Obama was "imprecise" you can read that as: wrong.

Part 4
Media Matters says media conservatives have falsely claimed Obama's Supreme Court criticism was "unprecedented.” For example, MM says that: President Warren G. Harding criticized the court for putting "this problem outside the proper domain of Federal regulation until the Constitution is so amended as to give the Congress indubitable authority. I recommend the submission of such an amendment."
But if you replace MM’s 5 words: “criticized the court for putting” with the eight words that Harding actually spoke you will see that there is no criticism at all. “The decision of the Supreme Court has put this problem outside the proper domain of Federal regulation until the Constitution is so amended as to give the Congress indubitable authority. I recommend the submission of such an amendment.”
He made an observation, not a criticism. He does not even indicate that he disagrees with the Court’s opinion. He notes that the Court has made a ruling and that he favors a constitutional amendment to overturn that ruling. (The rest of this paragraph was revised at 8:20 AM -1-24-11)(I think this was an example of an "activist conservative Court" that was reading into the Constitution something that wasn't there. The issue was whether Congress had the right to write child labor laws. Congress has since legislated on that question without a specific amendment.)
He may have criticized them elsewhere but not there.
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Friday, December 24, 2010

the court

A few days before it happened a liberal was contemplating the prospect of Congress's repeal of DADT with some sadness because, "Probably repeal won't pass the Supreme Court."

I offer this as an example of how deeply ingrained in the psyche of the left is the idea that the Supreme Court is, as one reporter called it, "the highest lawmaking body in the land."

Monday, September 27, 2010

Oliver Wendell Holmes, Jr.

"Your right to swing your fist ends where my nose begins."

"A mind that is stretched by a new experience can never go back to its old dimensions."
Oliver Wendell Holmes, Jr.(March 8, 1841 – March 6, 1935)

Wednesday, August 18, 2010

Park 51 - 3 -The mosque 2

I don’t see why Obama jumped into this. He defends religious freedom and then refuses to go further and state an opinion about the wisdom of it. All my life I have heard of these polls that show that the American people overwhelmingly support this or that Constitutional right and by similar majorities they oppose some actual implementation of that right. (Classic examples: freedom of speech and either burning the flag or spending money on a campaign.) Surely he knows about that. If he felt he had to do something he could have gotten Bush 41, Clinton, and Bush 43 to issue some statement about it. They are past worrying about votes. Obama isn’t. In fact there is whole branch of government specifically designed to be independent of public passions so that they can handle the maintenance of Constitutional protections. Maybe he was just trying to help the Supreme Court again.

Friday, August 13, 2010

Once upon a time at the court

In TODAY’S NOTE 7-27-2010 I mentioned the speed with which Harold Burton, one of Truman’s appointees to the Supreme Court, was approved. While that one was unusually fast it was not uncommon for things to move pretty quickly in those days. Perhaps that is an indication of how political the court has become. Truman’s 4 appointees to the court had (in reverse order) the following nomination-confirmation dates and votes according to wikipedia.

Sherman Minton Sept. 15, 1949 - Oct. 4, 1949 - 48-16.

Tom C. Clark Aug. 2, 1949 - August 18, 1949 - 73-8.

Fred Vinson June 6, 1946 - June 20, 1946 - voice vote.
Harold H Burton AM Sept. 19, 1945 - PM Sept. 19, 1945 - unanimous voice vote

The maximum number of days between nomination and confirmation was 19 and only 64 of the 96 Senators voted on that nomination.
The practice of holding hearings apparently did not become a regular feature of the nominating process until 1955.

Thursday, August 12, 2010

The media

Toward the end of Justice Alito’s confirmation process a CNN reporter said that his mother must surely be proud that her son was about to become a member of the highest lawmaking body in the land.

Tuesday, August 10, 2010

originalism

Has anyone offered a cournterpoint to Justice Souter’s Harvard commencement address on May 27, 2010?
In the Washington Post EJ Dionne wrote glowingly of Souter’s address:
Souter attacked the fatal flaw of originalism -- which he relabeled the "fair reading model" -- by suggesting that it would have led the Supreme Court in 1954 not to its Brown v. Board of Education decision overturning legal segregation but to an affirmation of the 1896 Plessy v. Ferguson ruling upholding "separate but equal" public facilities.
A layman is, of course, reluctant to disagree with such an august pair, but words do have meaning.
Plessy and Brown were both decided in a society which was opposed to black people having the rights guaranteed by the Constitution’s 14th amendment. In both cases the Court had the opportunity to read the plain words or allow their imaginations to construct a device that would provide for a “modern” interpretation of the 14th amendment that would be more consistent with their contemporaries' preferences.  It required a "living Constitution" perspective to discover Plessy’s “separate but equal” travesty in the 14th amendment. 
In the Brown case the Court looked at the same 14th amendment to the Constitution and discovered that it said “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” They ruled that way. That is reading the Constitution. That is originalism.