Tag Archives: scotus

A Champion for Justice

Sunday, 20 September 2020 Wilbur Norman 1 Comment

The Notorious R.B.G. (15 March 1933 – 18 September 2020)

I have sent three Tweets in my life and one of them was to Justice Ginsburg. It was an inquiry asking if she was going to make the season at our great Opera here in Santa Fe. She visited in the summers and could be seen with her omnipresent Secret Service detail headed to her seat in the lower central section of the open air house.

The first time we met her, however, was a big surprise. It was September 27, 2000 and we were at a conference in Ottawa, Canada with a group from The World Bank Ethics Office. Being interested in circumpolar artifacts, Donna and I took some time to visit a shop that specialized in Inuit art. While browsing the great wares a guy with an ear bud attached to a spiraling line came in, stopped and gave a slow survey to the store. He reminded me of the Secret Service executive protection guys we would always see around Washington, DC and it made sense as we were in the capital of Canada. Just the day before I had taken a really atmospheric portrait of Joseph Jacques Jean Chrétien, 20th Prime Minister of Canada.

Suddenly a second ear-bud guy came in. Then in walked a diminutive woman who was unmistakably Ruth Bader Ginsburg followed by yet another agent. My first impulse was to go to her and simply say how I admired her and the work she had always done. So, of course, I stepped toward her. Immediately the Secret Service guys took alert positions and the front one moved to block my advance. I quickly realized how stupid I was to make such a sudden move so made an apology and had my say from where I stood. She graciously acknowledged my fandom and we all went about looking at the art in the shop.

“She had this uncanny ability to be very much in the weeds, if you will, of the intellectual legal arguments and yet never lose sight of the human impact of her decisions,” was a description Former President Clinton used to describe Ginsburg.

No doubt part of her common-sense nature came from being a mother before she went to law school and having a difficult time getting a job with a top-flight firm even after graduating first (shared with another graduate) in her class. My wife has reminded me that when she was a young woman she needed a man’s signature to open a bank account and it was also impossible for most unmarried women to get a home mortgage. The Dean of Harvard Law reportedly invited the female law students (only 9 in a class of nearly 500) to dinner at his family home and asked the female law students, including Ginsburg, “Why are you at Harvard Law School, taking the place of a man?

We have Justice Ruth Bader Ginsburg, along with a host of other talented and determined women, to thank for leading the way to necessary and long-overdue changes in the way we men handle affairs that affect everyone. Alas, we are just not that good at sharing.

Glass pendant by Jodie McDougall using the ancient technique of fusing glass 'canes'. — Glass pendant by Jodie McDougall using the ancient technique of fusing glass ‘canes’.

The Notorious R.G.B.* will be sorely missed.

* a law student bestowed this moniker on Ginsburg that is take-off on the nickname of the late (also) Brooklyn-born rapper The Notorious B.I.G.

Politics

The Supremes

Tuesday, 2 July 2013 Wilbur Norman Leave a comment

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.

Politics

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

Thursday, 27 June 2013 Wilbur Norman Leave a comment

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.