SCOTUS and enduring bias

[kalm]

Surprise me Ivy, and at least agree with some of this.........


"Adam Cohen, a former member of the New York Times editorial board, has dispensed with these conventions and written a book that is almost pure law. Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America does not pander to readers or mug for their attention. Occasionally a justice will get a brief sketch, but it is little more than what you could find in his or her entry on the Supreme Court Historical Society’s website. Cohen deals in cases and their impact on the country. He acknowledges the risk of a volume that is all medicine and no sugar, quoting a public-interest advocate who notes that the public has largely missed the harm the Court has been doing, because “issues like class-action rules and preemption and arbitration” can make “most people fall asleep.”




https://www.theatlantic.com/magazine/ar ... pxpHcVcVqc

[Ivytalk]

Good find! I thought the review by an admittedly progressive lawyer was very even-handed, as the reviewer pointed out Cohen’s decision to omit inconvenient Court decisions that undercut his thesis and Cohen’s use of “overheated rhetoric” that damaged his cause. The trouble with books like Cohen’s is their tendency to cherry-pick cases to make their points. Those chosen cases will be hot-button decisions like Citizens United and Obergefell. And focusing solely on the last 50 years to make a point about the SCOTUS’s alleged enhancement of corporate power is a mistake.

To my last point, I’ll just leave you with this. Google “Lochner era” and see what you get. Lochner was a 1905 case undergirded by the doctrine of substantive due process, and it gave unbridled respect to the principle of freedom of contract. The doctrine was used to undercut a generation of laws that favored worker safety and consumer protection, as well as early New Deal legislation. In 1937, the era was effectively ended by a case called West Coast Hotel. If you think the plutocracy is benefiting today, Lochner was a different animal altogether. Also, don’t forget that some justices appointed by Republicans turn out to be progressives: Warren, Blackmun, Stevens, and Souter come to mind. We need perspective and a sense of history.

[kalm]

Good find! I thought the review by an admittedly progressive lawyer was very even-handed, as the reviewer pointed out Cohen’s decision to omit inconvenient Court decisions that undercut his thesis and Cohen’s use of “overheated rhetoric” that damaged his cause. The trouble with books like Cohen’s is their tendency to cherry-pick cases to make their points. Those chosen cases will be hot-button decisions like Citizens United and Obergefell. And focusing solely on the last 50 years to make a point about the SCOTUS’s alleged enhancement of corporate power is a mistake.

To my last point, I’ll just leave you with this. Google “Lochner era” and see what you get. Lochner was a 1905 case undergirded by the doctrine of substantive due process, and it gave unbridled respect to the principle of freedom of contract. The doctrine was used to undercut a generation of laws that favored worker safety and consumer protection, as well as early New Deal legislation. In 1937, the era was effectively ended by a case called West Coast Hotel. If you think the plutocracy is benefiting today, Lochner was a different animal altogether. Also, don’t forget that some justices appointed by Republicans turn out to be progressives: Warren, Blackmun, Stevens, and Souter come to mind. We need perspective and a sense of history.

Thanks, IT. I appreciate the homework assignment and look forward to some reading.

[Ivytalk]

One of the points subtly made by the reviewer is that some of the strongest Court-created hurdles to challenging “the elites” in court are procedural rather than substantive. Things like standing requirements, jurisdictional prerequisites, and restrictions on class actions are examples. Of course, the best way to effect change — on either side of the spectrum — is to elect candidates who reliably support your viewpoint. Relying on the courts is usually a fool’s errand.

[JoltinJoe]

IMO, the problem that the Supreme Court has is one of its own making -- and the problem is more than 50 years in the making.

People today believe that the Supreme Court exists to resolve all disputes significant to our society and system of governance. That is not the case and, to the extent that members of the Court have promoted that outlook, they have caused institutional damage to the Court.

For example, the author of this book complains about the recent decision that the issue of partisan gerrymandering is non-justiciable in the federal courts -- a decision with which I agree. But if you read the decision, the Court was saying that the state courts have the duty and authority to deal with these questions. That there was no remedy in the federal courts does not mean there is no remedy. I think the Court did the proper thing by deferring to the states to referee their internal political disputes.

When the Court assumes authority over matters it does not need to decide, or should not decide, damage to its reputation occurs. The decision in Bush v. Gore is a great example. The fact is that, once the Florida legislature certified Bush as the winner of Florida -- and certified his electors at the Electoral College -- Gore had no hope. It was over and, the only question remaining was how much damage Gore could inflict before Bush took office.

The Florida Supreme Court could have ordered all the recounts it wanted; it could have purported to certify Gore's electors -- it would not have mattered. Under the federal constitution, the state legislatures have the exclusive authority to determine how the state's electors are chosen. Here, the Florida legislature delegated, by statute, that right to the Florida citizens to choose Florida's electors by way of popular vote (news flash: no one has the constitutional right to vote for President!). That election was conducted and, based on those results, the Florida legislature certified the Bush electors to represent Florida.

When the Electoral College convened, it was possible that two competing slate of electors would have appeared, claiming to represent Florida: one certified by the legislature; one certified by the Florida Supreme Court. In that circumstance, the House of Representative decides (as per the Constitution) which electors to recognize. Now at the time, the House was controlled by Republicans, so they would have predisposed to choose the Bush electors. Still, the proper question to address would have been: which of these groups is certified by the Florida legislature? This is because Article II, Sec. 1, Clause 2 of the Constitution states: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." The Florida Supreme Court was arrogating to itself authority that it did not have.

Over the years, a number of justices involved in that decision have questioned whether they should have become involved. Scalia is reported to have said in some "off the record" conference that the outcome in Bush's favor was an inevitably, but he had believed that the damage to the country might have been too great if the Court had let the situation play out. He had thought the people would accept the Court's decision. I'm not sure if that was intended as an admission of a mistake. Chief Justice Roberts, who arrived five years later, has reportedly said that, in retrospect, it would have been better for the Court to sit on the sideline and let the matter play out as constitutionally scripted.

Ivy mentioned the dastardly Lochner Doctrine -- a tool by which an activist, conservative court struck down perfectly legitimate state laws regulating labor conditions and child labor, etc., on the ground that these laws violated a so-called fundamental "right to contract." There is no explicit "right to contract" in the Constitution, but the Court repeatedly held that it was a fundamental, substantive right protected by the Due Process Clause of the 14th Amendment. Lochner survived until the famous "switch in time" overruled the doctrine in the 1930s -- after significant damage to the national tranquility.

But the Lochner Doctrine gave birth to the concept of "Substantive Due Process," which -- although abandoned in the economic realm -- was given new life in the mid-1960s but liberal activist judges in the context of social laws. Under this concept, an activist court took control over divisive social issues that the framers of the constitution intended be resolved at the state level. Most notably, under the concept of Substantive Due Process, the Court assumed the authority to review abortion laws. In truth, this was just a disastrous re-introduction of the Lochner Doctrine in a new context: on a hot-button item that was sure to divide the nation along geographic grounds. Roe v. Wade essentially drew the red/blue national map that exists even today.

Having made the federal courts into the arbiter of this new concept of the "national morality," the Supreme Court essentially sent an invitation to the social warriors across the country -- whose disputes had been previously localized within a handful of states -- to send their best warriors to Washington.

I mean, if the federal courts are going to resolve these moral issues, previously resolved on a state-by-state basis, and impose a "national morality," don't be surprised when Texas sends Ted Cruz to fight these battles. Since the Senate confirms the federal judges and Supreme Court justices, the most overriding concern you should have when electing a Senator is that he or she will vote for judges who will impose "your morality." Since the President selects the federal judges and Supreme Court justices, the most overriding concern you should have when voting for President is that he or she will select judges who will impose "your morality."

Washington, D.C. used to be the place where we sent representatives to conduct the joint affairs, and advance the joint interests of the states: to "provide for the common defense; promote the general welfare; and to secure the blessings of liberty for ourselves and our posterity."

Now it's the place we send our social warriors to fight our cultural wars. And we wonder why they can get nothing done? They cannot even really speak civilly to each other.

The nation is dividing along the fault lines resulting from differences in social values and morality -- the type of issues that the framers had wisely not federalized.

If our federal government were working properly, it wouldn't matter what the President's personal opinion of abortion is. It wouldn't matter what the Senators thought about it; or even the federal justices. Abortion should not be a federal issue; and, as Justice Hugo Black once warned, presciently, federalizing such an issue has done immeasurable harm to the "stability and tranquility of the nation." This is why a number of Justices, like Scalia, have warned: "We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining."

[Winterborn]

Well said Joe.


And to echo Kalm's post, I also have some homework to do. This is why I hang around this place, the diverse group of posters always provide interesting topics to discuss.

[UNI88]

Well said Joe.

And to echo Kalm's post, I also have some homework to do. This is why I hang around this place, the diverse group of posters always provide interesting topics to discuss.

[89Hen]

CS kumbaya moment.

[AZGrizFan]

Good find! I thought the review by an admittedly progressive lawyer was very even-handed, as the reviewer pointed out Cohen’s decision to omit inconvenient Court decisions that undercut his thesis and Cohen’s use of “overheated rhetoric” that damaged his cause. The trouble with books like Cohen’s is their tendency to cherry-pick cases to make their points. Those chosen cases will be hot-button decisions like Citizens United and Obergefell. And focusing solely on the last 50 years to make a point about the SCOTUS’s alleged enhancement of corporate power is a mistake.

Sounds like a certain John Crackwhore book about Missoula...

[kalm]

CS kumbaya moment.

I we were to ever meet, I’d give you the biggest hug!

[Pwns]

JJ hit it out of the park.