Tag Archives: scotus

The Supremes

Lots of protest but no Protestants

Front row from left: Thomas, Born Catholic, appointed while Episcopalian, returned to Catholic Church in late 1990s/ Yale; Scalia, Catholic/ Harvard; Roberts, Catholic/ Harvard; Kennedy, Catholic/ Harvard; Ginsburg, Jewish/ Columbia. Back row, from the left: Sotomayor, Catholic/ Yale; Breyer, Jewish/ Harvard; Alito, Catholic/ Yale; Kagan, Jewish/ Harvard.
Front row from left: Thomas, Born Catholic, appointed while Episcopalian, returned to Catholic Church in late 1990s/ Yale; Scalia, Catholic/ Harvard; Roberts, Catholic/ Harvard; Kennedy, Catholic/ Harvard; Ginsburg, Jewish/ Columbia.
Back row, from the left: Sotomayor, Catholic/ Yale; Breyer, Jewish/ Harvard; Alito, Catholic/ Yale; Kagan, Jewish/ Harvard.

Now that the U.S. Supreme Court is out of session for several months legal eagles can pick apart their decisions decoding for anything that suits their fancy. When I wrote my blog commentary a few days ago about a couple of their decisions I started thinking about how little our presidents and justices represent the mainstream demographics of the country’s population anymore…. perhaps they never did.

No matter how egalitarian we call ourselves as a nation, attendance at Princeton, Harvard and Yale gives you a pole starting position. More accurately, it flings you like the Starship Enterprise using a planet’s gravitational force to rocket you into the stratosphere of our country’s infrastructure.

Look at the law schools represented by the current sitting court: Harvard/ 5, Yale/ 3, Columbia/ 1. Although graduation from law school has been the norm in the last 60 years, historically, of the 112 justices appointed to the Court, only 47 have had law degrees, an additional 18 attended some law school but did not receive a degree, and 47 received their legal education without any law school attendance, mostly apprenticing to the trade as was the norm in the early years of our country. (Henry Julian Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II. 2007, p. 49.)

Supreme Court justices also no longer get their hands ‘dirty’ as criminal defense attorneys: Thurgood Marshall is said to be the last justice to have represented a death penalty client. (Sherrilyn Ifill, Commentary: Break the mold for Supreme Court picks. CNN, May 4, 2009.) All current justices but one were working on the East Coast upon their nomination. Nineteen states have never had a justice hailing from their confines (yes, I know, some states did not exist until the 20th century.) But we have had a justice from Vienna, Austria (F. Frankfurter), David Brewer (now Izmir, Turkey) and others from abroad. There is, unlike with the presidency, no requirement that a federal judge be an American citizen.

More importantly for our country, justices no longer seem to pull their law clerks from across the board as they did in past Courts. The mental associations we bring to the word clerk make it sound like a relatively unimportant job but they have a huge importance in setting up the arguments and reasoning in cases. Justices Thomas, in selecting clerks with prior federal clerkship experience, so far as I can ascertain, has only pulled ones who worked for a judge appointed by a Republican President.

Why is this bad? Because it sets up a situation where you do not get a good, frothy, debate on points of law. I won’t go so far as to say that such clerks are “yes” men and women but how are they able to provide searing, pointed debate mounted from other views on legal questions during the closed-door discussions that lead to written opinions? Here are scores for the other justices with regard to their hiring clerks (with prior federal clerkship experience) in adherence to the ‘think-alike’ syndrome (2005 – 2010): Scalia (100%); Alito (91.7%); Roberts (88%); Sotomayor (87.5%); Kennedy (83.3%); Ginsberg (83.3%); Kagan (75%) and Breyer (54.1%). (Data current as of 2010.) It was not always so, even taking into account that the ratio of Democratic to Republic-selected federal circuit court of appeals judges has not been close to even since the end of President Clinton’s administration (67 Democrat to 67 Republican appointed.) The ratio is now incredibly lop-sided as Republicans in congress consistently stall votes on Democratic president’s nominations to judgeships.

A study published by the Vanderbilt University Law School Review (Nelson, et.al. The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall, and Reincarnation? 2009) notes:

“Whatever the cause of this polarization, what seems significant – and arguably troubling – about the putative emergence of politically oriented practice groups is a tendency to reify the role of the Court as a super-legislature responding to ideological arguments rather than a legal institution responding to concerns grounded in the rule of law.” Justice Thomas has commented that selecting clerks is like “selecting mates in a foxhole.”

Small wonder our legislatures and courts make most Americans think we at war… with each other.

Justice Scalia Wants it Both Ways // 6 of the States Under Title 4 Impose a Voter ID Law in the Last 24 Hours

What’s good for the goose is NOT good for the gander?
Rapid Response Teams in Arizona, Texas, Mississippi, Alabama, Arkansas and Virginia

This yesterday from U.S. Supreme Court justice Antonin Scalia in United States v. Windsor, … et.al. [DOMA]:

“We have no power to decide this case and even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America… It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive….”

However, the day before, he voted with the majority (Shelby County, Alabama v. Holder, Attorney General, et.al.) in invalidating Section 4 of the Voting Rights Act that had been passed by both houses of the U.S. legislature (reauthorized three times, most recently in 2006 with voting 390 – 33 in the House and 98 – 0 in the Senate.) Section 4 contains the formula used by Congress to determine which states and local governments must receive federal pre-approval before changing their voting laws. The majority opinion argued that progress in voter registrations and turnout erased the need for Section 4, with Chief Justice Roberts, long a foe of the Act, referring specifically to gains in minority voting in the U.S. southern states

It would appear that Scalia is saying, “We, the conservative members of the Court, can overturn democratically adopted legislation if it goes against our principles and we can find a spurious reason, but we don’t believe the liberals on the Court ought to be able to do the same thing.”

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Interestingly, 6 of the states that Title 4 was enacted for have, in the last 24 hours, enacted new Voter ID laws. Talk about quick reaction time! One, Arizona, had just had it’s previous law struck down by the Supreme Court (7 to 2) LAST WEEK! The state of Texas took only a few hours to pass a law REQUIRING a U.S. passport in hand as well as proof of state residency to vote.

In answer to these states reasoning that this will stop voter fraud (when the real reason for these laws is to hinder minority voting, and now, with Texas and its passport requirement, the elderly) several studies have found “that voter fraud is very rare, voter impersonation is nearly non-existent and much of the problems associated with alleged fraud in elections relates to unintentional mistakes by voters or election administrators.” – Brennan Center for Justice study (www.brennancenter.org/issues/voter-fraud). What has happened, in much more substantial numbers of cases, is election officials ‘misplacing’ ballots, voting machine irregularities, and other such incidents.

 

Supreme Court invalidates Voting Rights Act, Title 4, above.
Supreme Court invalidates Voting Rights Act, Title 4, above.

 

Supreme Court strikes down DOMA.
Supreme Court strikes down DOMA.