This Is Significant

Hon. James Dannenberg, Ret.

Former Judge James Dannenberg resigned from the Supreme Court Bar effective this last Wednesday. In a letter to Chief Justice John Roberts, he detailed why he has lost respect for the court.


Dannenberg has a long legal career history. He is a retired Hawaii state judge, who sat on the District Court of the 1st Circuit of the state judiciary for 27 years. Prior to that he was Deputy Attorney General for the State of Hawaii and served as an adjunct professor at the University of Hawaii Richardson Law School. He frequently appeared before the SCOTUS in person and  as signatory on briefs, acting as part of what is considered to be the most prestigious association of attorneys in the country, the Supreme Court Bar. The lawyers of the Bar stand as "a sprawling national signifier" of the legitimacy of the SCOTUS. Dannenberg  had been a member of that bar since 1972.

On Wednesday he submitted a letter of resignation from the Bar to Chief Justice John Roberts. The full text of the letter follows:

The Chief Justice of the United States
One First Street, N.E.
Washington, D.C. 20543

March 11, 2020

Dear Chief Justice Roberts:

I hereby resign my membership in the Supreme Court Bar.

This was not an easy decision. I have been a member of the Supreme Court Bar since 1972, far longer than you have, and appeared before the Court, both in person and on briefs, on several occasions as Deputy and First Deputy Attorney General of Hawaii before being appointed as a Hawaii District Court judge in 1986. I have a high regard for the work of the Federal Judiciary and taught the Federal Courts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the Court’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected– that of, for example, Justice Lewis Powell, Alexander Bickel or Paul Bator– at a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.

I can no longer say that with any confidence. You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.

The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.

Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.

Your public pronouncements suggest that you seem concerned about the legitimacy of the Court in today’s polarized environment. We all should be. Yet your actions, despite a few bromides about objectivity, say otherwise.

It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.

I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.

The Supreme Court of the United States is respected when it wields authority and not mere power. As has often been said, you are infallible because you are final, but not the other way around.

I no longer have respect for you or your majority, and I have little hope for change. I can’t vote you out of office because you have life tenure, but I can withdraw whatever insignificant support my Bar membership might seem to provide.

Please remove my name from the rolls.

With deepest regret,

James Dannenberg

For those unfamiliar, the Lochner era was a roughly three decade period of time following the decision in Lochner v. New York, 198 US 45 (1905). Lochner was a labor law case where a split 5/4 Court effectively invalidated all state laws that limited the number of hours an employee could be required to work. The Court effectively overruled itself in the 1934 decision in Nebbia v. New York.

Dannenberg's mention of Plessy refers to Plessy v. Ferguson, 163 U.S. 537 (1896), in which the segregationist doctrine of Separate but Equal was codified.

Plessy v. Ferguson Relegated People of Color to a Separate But Equal Railcar. The badly flawed decision became the legacy of Chief Justice Melville Fuller

This resignation accompanied by Dannenberg's rebuke is a serious shot across the bow. Chief Justice Roberts is, I feel certain, rightly concerned about his legacy. The references to Lochner and to Plessy are subtle reminders that decisions made by the Court that are later viewed as flawed tend to stain the legacy of not just the Court, but the Chief Justice in particular.

Since Dannenberg is just the latest of several hundred retired judges, justices, and constitutional scholars to chastise the Court, Roberts would do well to consider a course correction before it is too late.

~~~

TELL ME AGAIN WHY AMERICA IS EXCEPTIONAL

... or The reason Christianity sucks

This will be kind of a hodgepodge tale of how European Christianity led to America being simultaneously admired and despised by the rest of the planet. I'll just be hitting the high points. You can follow the links or do your own research if you want to know more. We'll start out with the Myth of Christopher Columbus and work our way to the Bears Ears National Monument.

Chris Comes to America - Or does he?

Columbus was more or less a freelance bounty hunter of the 15th century. King Ferdinand and Queen Isabella, with the blessing of the Church, offered a bounty for anyone who would steal property from Spanish Jews and Muslims to hand over to the crown, and our daring young Chris was quite happy to oblige. It was the money obtained from that plunder that provided the funding for his explorations. With his pockets full of booty, three ships and about 90 crew, Chris set out looking for a new route to East Asia and India.

To give you a bit of insight into his character, while en route Columbus offered a reward of 10,000 Spanish Maravedis (about $540) for the first person who sighted land. That much money was huge, since it represented what the typical sailor would have earned in a year. One early morning on October 12, 1492, one of the crew shouted out from atop a mast that he had seen land. Indeed what the sailor had spotted was probably Watling Island in the Bahamas, which is where Columbus is recorded as making his first landfall. Columbus immediately reneged on the reward, claiming that he had seen it first.

Nice guy, eh?

In the process of attempting to approach the island, Columbus wrecked the Santa Maria. Local and friendly indigenous bands of Arawaks, Tainos and Lucayans witnessed the accident, swam out to the wreckage, rescued the sailors and Columbus, and then worked for hours saving their cargo. We know all this because Columbus kept very good records. He was so impressed with the friendliness of the native people that he claimed their land in the name of Spain and the Catholic Church, kidnapped local women and children for the entertainment of the crew, and enslaved the men to look for nonexistent gold. In his own journal he wrote:

“As soon as I arrived in the Indies, on the first Island which I found, I took some of the natives by force in order that they might learn and might give me information of whatever there is in these parts.”

So now we know the evil that was in the heart of a man for whom our Exceptional America has named a national holiday. 

On to the next chapter, skipping ahead about three centuries. 

In 1775 Thomas Johnson and some other British citizens convinced the Piankeshaw tribe to sell them some land in what is now Virginia. Johnson died and willed the land to his heirs. In 1818 a Scotsman by the name of William M'Intosh bought a bunch of land from the U.S. Congress, with about 11,000 acres of it being part of the land Johnson bought from the Piankeshaw. As you might guess, this pissed off the Johnson's heirs, so they sued M'Intosh. The Court ruled for M'Intosh because it was the Congress that made the sale. Johnson's heirs appealed to the SCOTUS, which upheld the lower court ruling. In Johnson v. M'Intosh (1823), Chief Justice John Marshall wrote in his opinion that "the United States earned the 'exclusive right…to extinguish [the Indians'] title, and to grant the soil.'" He further wrote that "...the Indians themselves did not have the right to sell property to individuals," and that "...M'Intosh's claim, which was derived from Congress, was superior to Johnson's claim, which was derived from the non-existent right of Indians to sell their land." 

So at this point you have to ask, why did the tribe not have the right to sell their ancestral lands? Well, Chief Justice Marshall had an explanation for that. The M'Intosh case was one of three such cases, collectively known as "the Marshall Trilogy." All were based on the Doctrine of Discovery.

This doctrine is not and never was a law. It is a legal construction built upon the Christian faith and dates back to the time when the Church needed to justify what Columbus had done to the natives of the Bahamas. In 1493 the Pope retrospectively issued a Papal Bull which in part states, "...any land not inhabited by Christians" was available to be discovered, claimed, and exploited by Christian rulers and declared that "the Catholic faith and the Christian religion be exalted and be everywhere increased and spread, that the health of souls be cared for and that barbarous nations be overthrown and brought to the faith itself." 

Charming.

Marshall applied the Doctrine according to the way that colonial powers laid claim to lands belonging to foreign sovereign nations during the Age of Discovery. Under it, title to lands lay with the government whose subjects traveled to and occupied a territory whose inhabitants were not subjects of a European Christian monarch. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of colonial or post-colonial governments. Our Exceptional America has used this doctrine as an excuse to violate a majority of the treaties it has made with the native peoples of this land.  

Fast Forward Two Hundred Years

In 1851 the Standing Rock Sioux reservation was created under the Treaty of Fort Laramie. The Standing Rock Sioux may sound familiar, and it should due to the debacle created when our Exceptional America violated the treaty by agreeing to allow the Dakota Access Pipeline to cross near reservation land without consulting the tribe. This set off a protest as the tribe was rightfully concerned about it's only access to clean water. As the tribe protested, peacefully for the most part, there was video shot of the pipeline construction company bulldozing ancient stone prayer sites near the pipeline. Then the same company brought in private security guards who unleashed dogs on the protesters, and when the dogs didn't deter them, the guards sprayed the protesters with Mace. Not to be outdone, North Dakota Governor Jack Dalrymple first brought in water cannons, dousing the protesters with water on a frigid day, and then declared a state of emergency as an excuse for cutting off the protester's camp water source. In the end the protesters disbanded due to the oncoming, brutal winter. President Obama finally put a stop to the construction, but the current president gave the go ahead. Since that time the pipeline has lived up to the people's predictions, springing several leaks with the first coming before it was fully operational.

Less than a year later, in an unprecedented executive, that same president ordered the review of 40 national monuments created over the past 21 years, all on Indian land. The goal was obvious. He wanted to give the lands that were preserved for their beauty and for the native culture to those who would exploit the resource and defile the sacred ground. The current president called national monuments created by Obama as “an egregious abuse of power,” and said “It never should have happened. I am signing this order to end abuses and return control to the people,” when in fact, the action took the land back away from The People."

In an article appearing in the online edition, National Geographic writes, "Even in the face of Trump’s frenetic efforts to erase other parts of Obama’s legacy on multiple policy fronts, his call for ending abuse of monument designation stands out. No president has ever revoked a national monument named by a predecessor. No president has ever tried."

Just as when the 1851 and 1868 Treaties of Fort Laramie were broken, the reason for the shrinkage of Bears Ears is because of America's greed. Conservative Republican lawmakers have long argued that the federal government, which owns almost half the land in 11 western states, should turn control of much of it over to the states, or sell off parcels for commercial development and the allure of new jobs. In the black Hills the treaties were broken due to the discovery of gold. For Bears Ears it is the lure is coal and oil. 

When Obama created the monument in the waning days of his administration, Utah’s congressmen denounced Bears Ears as “a slap in the face” and “a travesty.” Rep. Rob Bishop, chairman of the House Natural Resources Committee, promised, in a website video, “We will fight to right this wrong.” With this president it was no fight. If Obama did it, he was going to undo it.

It is clear that Obama had the power to create national monuments on federal lands. That authority was written into law by the Antiquities Act, which was signed in 1906 by Theodore Roosevelt. With the exception of Reagan, every president since Teddy has used the law to designate national monuments. Obama created 34, which apparently rankles the current president.

His actions with Bears Ears will not be met with acceptance. There is still hope that we can put a stop to this latest violation of trust. Brad Sewell, a senior lawyer with the Natural Resources Defense Council, says “These are very popular places.”  He points out that “Many of our national parks started as national monuments. Even in Utah, where a fair amount of opposition is brewing in certain quarters, the public at large is in favor of national monuments.” Bears Ears is also home to more than 100,000 Native American archaeological and cultural sites, considered sacred by many tribes. This was Obama's primary reason for setting the land aside.

Disagreement over the Antiquities Act’s intent lies in its simplicity. The four-paragraph law clearly states that the president is authorized to “declare” national monuments. But the law says nothing about the presidential authority to do the reverse. “The Antiquities Act does not provide for rescinding a national monument,” says Robert Keiter, director of the University of Utah’s Wallace Stegner Center, and a specialist in public lands law. “The courts have not ruled on whether there is an implied power in the statute. The issue has never been litigated previously.”

There have been numerous Attorney General opinions arguing that the president lacks the power to revoke, with the most notable being authored by President Franklin Roosevelt’s attorney general in 1938. When FDR inquired if the Antiquities Act allowed him to scuttle a derelict Civil War-era fort in Charleston, South Carolina, as a national monument, he was advised it did not. Successive administrations heeded the same advice. This administration, having shown a disregard for precedent, public opinion, and the law, will attempt to once again show the contempt that this country has held the First People, and once again the People will rise up to meet the challenge. 

European Christianity has set the tone for the exploitation of the land and the disenfranchisement of a people. The natives may have been savages in the eyes of the old world, but the truth is that there has never in recorded history been so much savagery wreaked upon a people as was seen and is still being seen in this country. 

So tell me please... exactly why do we say that America is exceptional? If there was ever a time when this land was exceptional at anything, it was before the white Europeans brought their Christianity to these shores.

~~~~

Feisty as ever

###

Eye of the beholder

According to Conservapedia, Judicial activism is when

“…courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. "Judicial activism" is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress, rather than limiting itself to the powers traditionally given to the judiciary”

Black’s Dictionary of Law offers a somewhat simpler definition, describing judicial activism as a…

"…philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions"

The actual term is relatively new in the American Political lexicon, having first appeared in a January, 1947 Forbes Magazine piece penned by Arthur Schlesinger, Jr.  Not unsurprisingly, Schlesinger was describing decisions by the Court of Chief Justice Harlan Fiske Stone, and specifically those by Associate Justices Hugo Black, William Orville Douglas, Frank Murphy, and Wiley Blount Rutledge… all appointed to the Court by Franklin Delano Roosevelt. Chief Justice Stone was himself rather moderate but sided with the liberal majority quite often.

The odd thing about the term is just how vagrant the definition has become over the ensuing years. Judicial appointees have always been chosen to reflect the politics of the current White House occupant, and the tilt of any decision would naturally lean with the majority. Depending upon that majority, the Court’s decisions over the three quarters of a century since Schlesinger coined that term have reflected left leaning philosophy alternately with right producing decisions to almost equivalent degrees.

Yet Conservapedia continues their very interesting definition from the above to say…

“…judicial activism is a way for liberals to avoid the regular legislative means of enacting laws in order to ignore public opinion and dodge public debate”

Since when does public opinion rise above the level of law? Is it not the role of the Court to make decisions based upon constitutional values rather than bow to majority rule and in spite of majority opinion? Our Constitution was written with the intent of protecting the rights of the minority from the will of the majority.

One of the decisions the right loves to defame as “activist” came not long after Schlesinger penned his Forbes piece. In Brown v. Board of Education the left-leaning Earl Warren Court overturned Plessy v. Ferguson, which for 60 years had lent a judicial stamp of approval to racial segregation. This "activist" ruling started our country on a long road toward racial equality.

Some 20 years later the Burger Court applied 14^th amendment privacy protections to current state laws that criminalize abortions. Both the 1949 Brown decision and Roe v. Wade in 1973 are decried by conservatives and cited as evidence of an overreaching Court. The prohibitions and limitations voided by each of these cases find root not in fiscal conservatism, but in a conservative Christian mentality. Look around today and see who it is shouting "activism" the loudest.

Slowly, starting in the 60's, the liberal mood began to ebb. Prompted by the incessant fear mongering of the newly empowered "Christian Conservatives," the electorate began to swing to the right. In 1971 Richard Nixon appointed the very fiscally conservative William Rehnquist to replace the liberal Hugo Black, and then 1986 Ronald Reagan nominated Rehnquist to replace moderate Warren Burger as Chief Justice. To fill the remaining vacancy, Reagan next tapped neoconservative Antonin Scalia.

Liberals could see what was happening and a year later, fed up with what they perceived as the appointment of too far right leaning activist judges, Democrats in the Senate staged an almost unprecedented revolt over the appointment of Robert Bork. Following a long and bloody battle Bork withdrew his name and a more moderate Anthony Kennedy was confirmed in his stead, but the religious right has never forgiven this action.

Conservatism has ceased to be about political considerations and instead has taken on the "social conservative" (read Christian) mantle. Where the court had previously been stacked to favor reasonable, moderate interpretations of the law with an emphasis on protecting the rights of the individual, we soon saw an abrupt turn to this rigid, authoritarian "new" right and an implementation of decisions favoring "family values."

George H.W. Bush appointed the inscrutable Clarence Thomas to replace the moderately progressive Thurgood Marshall, and although Democrats in the Senate worked hard to “Bork” him, Thomas was confirmed in 1991. 

Over his eight years in the White House Bill Clinton was able to hold the line with appointments of progressives Ruth Bader Ginsburg and Stephen Breyer to replace the equally liberal Byron White and Harry Blackmun. Yet in 2000 it was this somewhat moderate Court that gave us Bush V. Gore. Rehnquist, Scalia and Thomas, reluctantly joined by moderates Kennedy and O’Connor effectively negated a popular vote and elected a President.

The real turn in the Court came in 2005 when George W. Bush nominated John Roberts first to replace the retiring associate Justice Sandra Day O’Conner, and then as Chief Justice replacing the retiring William Rehnquist. O'Connor was a somewhat left leaning moderate, and Roberts' political views made even Rehnquist look middle-of-the-road.

Bush immediately followed these actions with the nomination of Samuel Alito, Jr., arguably the most reactionary Justice ever to hold the position. The Court was now stacked with four hard right justices, four others to the left, and Anthony Kennedy as the swing vote.

In the 2010 Citizens United v. Federal Election Commission decision Kennedy joined conservatives Roberts, Alito, Scalia and Thomas to grant “personhood” to corporations. Both this decision and Bush v. Gore raised a hue and cry from the left, yet it remains common for the right to accuse the Court of left-leaning judicial activism.

This obviously is an unfair characterization. The term could more accurately be defined as any decision made by any judge that does not agree with the particular view of one of the parties in the case. It swings both ways.

It is politicians who speak in terms of majority. Constitutionalists couch arguments in terms of reason and fairness. Judicial activism is in the eye of the beholder.

###

One to watch

From SCOTUSblog....

The Montana Supreme Court on Friday put to work its own view of what the Supreme Court had decided in the controversial ruling allowing massive corporate spending in political campaigns, and came out differently: the state court upheld a 99-year-old state ban on the use of corporations’ own money to support or oppose any candidate in state elections. The 5-2 ruling, including two dissenting opinions, is here. One of the dissenters predicted that the ruling would not survive an inevitable appeal to the Justices, and might be overturned without even a close look.

Eugene Voloch has this to add...

[W]hat has happened here is essentially this: The Supreme Court in Citizens United ... rejected several asserted governmental interests; and this Court has now come along, retrieved those interests from the garbage can, dusted them off, slapped a “Made in Montana” sticker on them, and held them up as grounds for sustaining a patently unconstitutional state statute....

Extremely positive development, but once Scalia et al get a hold of it likely it won't go anywhere, but it is damn interesting to see it reach even this far.

###

Repeal Citizens United

Over 110,000 signatures so far.

"Proposing an amendment to the Constitution of the United States to expressly exclude for-profit corporations from the rights given to natural persons by the Constitution of the United States, prohibit corporate spending in all elections, and affirm the authority of Congress and the States to regulate corporations and to regulate and set limits on all election contributions and expenditures."

If you agree with that, go to this link and sign the petition.

###

H/T Juanita Jean

Verbatim

Sergio Campos, of the University of Miami School of Law, guest blogging on SCOTUSblog, analyzes the effects of the Court’s decision in Wal-Mart v. Dukes, emphasizing the importance of class action lawsuits to allow groups of individuals to come together against large corporations.

###

Slow learner

Just a few years ago it was D.C. with the Heller case, but more recently Chicago has been at the epicenter of disputes over gun rights. The decision in McDonald v. Chicago reversed the obviously wrong-headed city ordinance denying law abiding citizens the right to possess firearms for self protection. Although I’m far less fond (and in great disagreement) with other recent decisions, especially Citizens United (effectively granting Personhood to corporations) and the more recent Wal-Mart v. Dukes (effectively denying Personhood to women) rulings, SCOTUS got it right with McDonald.

But Chicago seems to not get the message. It was just last summer when SCOTUS struck down the Chicago ordinance that effectively banned handguns in the city. SCOTUS, in no uncertain terms, told the city that the Second Amendment applies to states… and therefore to municipalities.

So what did the city do? In the wake of that ruling, Chicago enacted yet another ordinance… this time requiring gun owners to get firearms training, which required practicing at a firing range, but then banned firing ranges within the city limits. Classic fail! Guess what? They found themselves back in court yet again.

Litigation ensued once again claiming that the Chicago ordinance violates the Second Amendment. The 7th Circuit, taking a cue from Heller and McDonald, enjoined the ordinance, ruling Wednesday that those objecting to the ordinance have “a strong likelihood of success on the merits.” The 7th Circuit opinion described the ordinance as “too cute by half” and that it amounted to “a thumbing of the municipal nose at the Supreme Court.”

You lose again, Chicago. When are you going to figure out that the American people will not be denied their rights?

Didn’t take long to answer that question. Chicago is a slow learner. In the wake of this most recent ruling the City Council quickly leapt into action, crafting a new ordinance allowing gun ranges in Chicago under strict permitting guidelines… banning ranges within 1,000 feet of a school, park, place of worship, day care center, liquor store, library, museum, hospital, residential district or another gun range.

The Sun-Times reports on the latest Chicago gun ordinance. The NRA told the Sun-Times that the ordinance is so restrictive it could invite another lawsuit. It will and it should. Citizens need to keep pounding on SCOTUS’ door each and every time our government oversteps it's bounds. This our right… and it is our duty. We won’t always prevail, but losing should never dampen the effort.

Now it is time to revisit Citizens United and Wal-Mart....

###

A test of the “Good Faith” exception to the Exclusionary Rule

…in which the Court explores a professor’s complex argument to protect the integrity of the Court’s Fourth Amendment precedents.

Justice Stephen G. Breyer observed…

“[O]nce we do that it’s so complicated, only 14 people are gong to understand it and they’re not going to understand it, either.”

Justice Samuel Alito dryly comments...

“The Court invented the exclusionary rule.  The Court invented the good faith exception to the exclusionary rule.  Is there anything to prevent the Court from inventing a new exception to the exception to the exclusionary rule?”

Read the rest HERE…

###

The logical extension of "Citizens United..."

... and a textualist rebuttal of the corporate personhood issue.

"We trust that AT&T will not take it personally."

###

Judicial ethics

The fundamental principle that “no man may be a judge in his own case” was articulated by Lord Coke in the seventeenth century, yet inexplicably we still allow Supreme Court justices to be the sole judge of themselves on recusal issues.

A group of law professors, over 100 strong, are urging Congress to draft recusal rules for Supreme Court justices. The high court panelists are the only members of the federal judiciary not already subject to such a code of ethics.

Considering some recent activities by a few of the justices, it will be interesting to see where this goes.

###

SCOTUS trivia

How many female Supreme Court justices have there been?

Out of 100 Justices, only four have been female, three of whom remain on the court today. Sandra Day O'Connor was appointed by Ronald Reagan in 1981, and Ruth Bader Ginsburg by Bill Clinton in 1993. Sonya Sotomayor and Elena Kagan are recently appointed by Barak Obama. Kagan was sworn in today as the 100th Justice of the Supreme Court.

There have been only two black justices. Thurgood Marshall was appointed in 1967 by Lyndon B. Johnson, and the still sitting Clarence Thomas, appointed by George H.W. Bush in 1991. Sotomayor is the first hispanic Justice. 

SCOTUS has historically been a WASP club, but over the years the Court has managed to diversify similarly to U.S. society as a whole... just not quite as quickly. There have now been several Jewish and Catholic justices, but so far none of anything except European or African descent, no avowed atheists or adherents to non judeo-christian religions. 

It might be fun to break this down further into ethnic, religious and cultural divisions. Considering the speculation surrounding Kagan, we could possibly toss in sexual orientation... 

In the end though, does any of this matter?

Now for the trivia question: Only two Supreme Court justices have ever been forced out of office. Who were these, and what was their crime?

~~

Will it hold up to a SCOTUS review?

This just in from the Texas Freedom Network:

‘Christian Land Governed by Christian Principles’

Even before the Texas State Board of Education took up its expected debate today over what students will learn about separation about church and state in their social studies classrooms, board member Cynthia Dunbar, R-Richmond, made her position clear. She offered the board’s opening prayer this morning and removed any doubt about what she and other far-right board members want students to learn: America’s laws and government should be based on the Christian Bible.

Stop what you are doing and watch this video now -- you have to see it to believe it.

Laying out in blunt language the “Christian nation” vision of American history that the board’s powerful bloc of social conservatives espouses, Dunbar threw down the gauntlet:

“I believe no one can read the history of our country without realizing that the Good Book and the spirit of the savior have from the beginning been our guiding geniuses.”

“Whether we look to the first charter of Virginia, or the charter of New England…the same objective is present — a Christian land governed by Christian principles.”

“I like to believe we are living today in the spirit of the Christian religion. I like also to believe that as long as we do so, no great harm can come to our country.”

You will recall that Dunbar, in her 2008 book, One Nation Under God, argued that the Founders created “an emphatically Christian government” (page 18 of her book) and that government should be guided by a “biblical litmus test” (page 47). Even more damning, this State Board of Education member wrote that public education is a “subtly deceptive tool of perversion,” tyrannical and unconstitutional.

And today she will help decide what the next generation of Texas students will learn about separation of church and state in their public school classrooms.

You can follow the conclusion to this embarrassing saga on our liveblog at TFNInsider.org. And look for an e-mail later today with the final decision of the board -- and what we can do now to restore sanity and respectability to Texas education.

It's important that all Texans see how bad things have gotten at the state board.
Forward this e-mail to friends and post this clip to your Facebook page.

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If I haven’t made it clear enough in previous blogs, this is the kind of fanatical religionism we are fighting here in Texas, but Texas is just the latest battlefront in this war. Religious fanatics worldwide are and have been intent upon installing their own vision of theocratic rule since the dawn of recorded history. It is a war that will go on regardless of how many battles the rational people fight and win.

Listen to Ms. Dunbar’s words. Over and over you hear, “I believe.” The religionist totalitarians all “believe” they know the answer; know what god wants. Mohammed Atta “believed” he was doing god’s will when he participated in the slaughter of 2,976 innocent lives on September 11, 2001.

The five creationist extremists on the SBOE are of the same mindset as Mohammed Atta; just a different theology.

So will the Texas State Board of Education be the vanguard of some long awaited nationalistic movement to return our country to Sharia biblical law?

Hell no. Not so long as reasonable people speak their mind.

The kind of theocracy building being attempted by the SBOE, with the blessing of Gov. Goodhair, won’t survive SCOTUS review. But the extremists won’t let that stop them. It may take a few years to clean up their mess, but the rule of law will eventually prevail.

Either that or we can just burn our Constitutions right now and be done with it.

~~

Regarding Elena Kagan and the survival of the American system

Miguel Estrada was nominated in 2001 by George W. Bush for a seat on the U.S. Court of Appeals for the District of Columbia. Although clearly qualified and confirmed by the Judicial Committee, the nomination was blocked by Senate Democrats in a 2003 filibuster. The reasons given were various, but none of them made any real sense.

In a Friday letter to the Senate Judiciary Committee, Miguel Estrada spoke of the Elena Kagan nomination, saying of his long-time friend, "She's clearly qualified for the court and should be confirmed. Obviously, she's a left-of-center academic who never would have been picked by a Republican. But no one can doubt her intellectual accomplishments."

Estrada displays the qualities that makes him a gentleman, and proves he would have been an excellent choice for a judgeship. He speaks volumes of truth and hopefully sets a tone that will lead to a return to reason. Speaking of the Kagan nomination, Estrada says, "If such a person, who has demonstrated great intellect, high accomplishments and an upright life is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service."

Clearly Estrada would have made a fine judge, but partisan politics shot him down. Tit for tat politics has tattered our country's political system. Every perceived slight must be avenged regardless of the damage it does to the country as a whole, and the pundits fill their bank accounts egging it on.

Pundits and bloggers of both wings could learn something from Miguel Estrada.

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Why would it matter?

For the most part, all this discussion about Elena Kagan’s sexual orientation is generated by the media. Pundits ranging from Sully to Limbaugh (who also calls the nominee a “budding communist”) appear to be obsessed with something that has no applicability to the qualifications for the job.

What difference does it make if she is or is not a lesbian? She could enjoy sex with a pogo stick and it wouldn't alter her judicial credentials an iota. The very discussion of Kagan’s sexuality distracts from the discussion we should be having.

What should matter is a nominee’s scholarly record of accomplishment. Elena Kagan has never presided over a trial, true, but she has complied impressive curriculum vitae nonetheless, and this is what we should be examining. To that end, Eugene Volokh has done a very good job.

From her writings, discussed in Volokh’s piece, it appears that Kagan is a constitutional scholar, well steeped in First Amendment law, who will fall to the liberal side of the court somewhere safely between Ginsberg and Stevens. If anything, Elena Kagan on the bench will move the court further to the right.

While perhaps not as qualified in some realms as others, Kagan appears to be suitable for the job… and she is a safe nominee. Limbaugh and his ilk will oppose any nominee this administration proposes, so their comments can be added to the rest of the fertilizer they spew, but when the more reasonable media can’t find anything else to discuss, they are just wasting our time.

Time to move on, folks.

And as a sidebar, I personally don’t really care to think about ANY of those old codgers having sex… under ANY circumstance.

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We the People

Isn’t it interesting what our kids don’t learn in school?

Even many educated people seem never to have learned that some of the earliest British colonies were corporations chartered by the King of England. Take for instance the 1628 creation of the Governor and Company of Massachusetts Bay, granted to a group of Puritans. The result was a theocratic Massachusetts with political power held by staunch Puritanical believers.

In 1636 we see the chartering of the Rhode Island colony by a group of disaffected Massachusetts Bay folk, then the Connecticut colony followed in 1662. These early American corporations were forced under terms of their charter to deal strictly with the British East India Company, and under some very disadvantageous terms.

That was the way it was until the American Revolution, which began as a rebellion more against the East India Company than of the Crown.

Our founders held a deep distrust of corporations. So much so that Thomas Jefferson offered freedom from monopolies as part of our Bill of Rights. The proposal failed to gain acceptance, and later Jefferson wrote, "I hope that we shall crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength, and bid defiance to the laws of our country." [1]

But corporations survived, and in 1886 SCOTUS inadvertently decided that a private corporation is the same as a person, and entitled to the same Constitutional protections as any other person.

The Controversy

The case that did it was Santa Clara County v. Southern Pacific Railroad (1886), and according to the records, Associate Justice Morrison Remick Waite, before the opening of argument, stated aloud that “[t]he court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.”

The court reporter, former judge and lawyer J.C. Bancroft Davis, later entered into the summary record of the Court's findings that, “The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws.”

Thus Davis took Waite’s words, twisted them and granted something to corporations which was never even discussed. It was never the intent of SCOTUS to make that statement, and the full text of the opinion says no such thing. The case was brought as a complaint by the railroad about the taxing of fences bordering rail lines, and the railroad won. There were no arguments relating to corporate personhood or corporate rights under the First Amendment. The whole corporate personhood thing is a sham.

Corporate personhood came to be simply because of an off the cuff statement of a single justice, and the brief summary written by Court Reporter Davis. Davis himself becomes suspect in a fraud, and it has been alleged that he was bribed. After 150 years we shall never know for certain, but it is perhaps relevant that Davis was the former president of Newburgh and New York Railway Company.

The concept of corporate personhood generates some interesting questions. If the corporation enjoys the same rights as a person under the First Amendment, would it not also enjoy equally the rights protected by the full Constitution and all the amendments? Should a corporation have the right to vote? Join the military? Marry your daughter? Be called for jury duty? If a corporation is suspected of a crime, can it be remanded for trial?

I think probably not, and I further think that allowing corporations shelter under the First Amendment is a disastrous idea. Since the Constitution makes no mention of corporations, it seems clear that the law that has been promulgated under this “decision” is an attempt at rewriting the Constitution to suit the needs of the corporation, and nothing more. The fears of our founders have been realized.

"Corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed."

Abraham Lincoln wrote these words[2] in 1864, twelve years before Bancroft Davis took it upon himself to grant the protections of our Constitution to the very entity Lincoln, and our founders, despised.

[1] The Populist Moment: A Short History of the Agrarian Revolt in America, Goodwyn, L.

[2] Abraham Lincoln: A New Portrait, Hertz, E.

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Another issue of prisoner rights

SCOTUS considered a very interesting challenge today, and raised questions regarding the state’s power to detain prisoners considered “sexually dangerous” beyond time sentenced.

It was a year ago that the 4th Circuit ruled that neither the commerce clause nor the necessary and proper clause of our Constitution provided Congress the necessary authority to civilly commit persons convicted under the provisions of the Adam Walsh Child Protection and Safety Act of 2006. The court also implied that the commitment provision of the act violated 10A state’s rights.

United States v. Comstock challenged the Act, and in arguments today, U.S. Solicitor General Elena Kagan defended the federal government’s actions in civilly committing these prisoners for a longer time than they were sentenced; potentially indefinitely.

Kagan claimed the provision was necessary and that Congress could reasonably find it to be so. States, she said, are unwilling to take responsibility for mentally ill and sexually dangerous convicts when their federal sentence ends, thus shifting the onus to the feds.

The office of the Federal Public Defender represented the opposition, countering that the federal government has no right to extend the sentences once the convicts have met their obligation. G. Alan DuBois, Assistant Public Defender, stated in his argument, “… at that point, any further detention must stand on an independent conviction."

The Justices tossed both lawyers a series of hypothetical situations, testing the validity and scope of their arguments, with Justice Scalia pounding particularly hard on Kagan.

"I'm not terribly impressed with your argument,” stated the Justice. “This is a recipe for the federal government taking over everything. The states won't do it, so the federal government will."

Then it was Justices Stevens and Bader’s turn to take DuBois to task, with Stevens telling DuBois, "I think, as the case comes to us, we have to assume there are cases out there in which there will be no solution [except for action by the federal government]."

Justice Ginsburg then stated, "We're talking about endangering the health and safety of people, so the government has some responsibility, doesn't it? "

While I am sure there are some limits that can be found, and perhaps the civil commitment of certain sexually dangerous and mentally incompetent individuals may indeed be necessary, I find the arguments offered by Kagan, and apparently supported by Stevens and Ginsburg, seriously lacking in weight. The people, I don’t think, really want the federal government as nanny.

In this instance at least, I find myself in the odd position of agreeing with Justice Antonin Scalia.

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Of Product Liability, Patents, and Forum shopping

Forum shopping is the practice of filing claims in “friendly” courts. This has been adopted by attorneys in an effort to get a case heard in the court which will provide a more favorable judgment. It has been long known that some courts are more plaintiff-friendly, and thus have become litigation magnets even when there is slim connection between the issue and the jurisdiction.

Lawyers seek courts where there is a track record of bias against defendants; often defendants located outside of the state or even the country. These courts have established records of providing rich awards. Personal injury lawyers seek out these jurisdictions and file cases there because they know they will receive a large reward, a favorable precedent, or both.

Former Virginia Supreme Court Justice Richard Neely described one of the reasons behind this phenomenon in his recent book The Product Liability Mess: How Business Can Be Rescued From the Politics of State Courts: "As long as I am allowed to redistribute wealth from out-of-state companies to injured in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else's money away, but so is my job security, because the in-state plaintiffs, their families, and their friends will reelect me.... It should be obvious that the in-state local plaintiff, his witnesses and his friends, can all vote for the judge, while the out-of-state defendants can't even be relied upon to send a campaign donation."

Drug maker liability

Nueces County, Texas was known as a plaintiff-friendly court, and it was in that court in February of 2003 that personal injury lawyer Mikal Watts filed the now infamous Baycol class action lawsuit. The case was tried more in the press than in the courtroom, but in the end the defense prevailed and there was a great brouhaha regarding the actions and inactions of attorney Mikal Watts.

In a May 03, 2004 interview with Wall Street Journal reporter Monica Langley, Watts stated, "I was feeding a lot of information to European and U.S. papers. ... It was part of my strategy to affect the stock price, which I was very successful at."

Watts was seeking $550 million, and refused to consider any other unless the defendant settled all 1,400 of his Baycol cases. Watts' efforts failed and judgment went to defendant, German drug maker Bayer. After learning that he could have settled early and received $250,000, 82-year-old plaintiff Hollis Haltom was stunned. “Watts thought he could make a killing,” but “I got nothing, not a penny.” As for the settlement, Haltom said: “The lawyer never told us. We might have taken it.”

At the time this was a rare instance of forum shopping failing to meet plaintiff’s expectations.

Applying forum shopping to gun laws

Multiple gun-related cases have been shopped to Judge Jack Bertrand Weinstein of New York’s Eastern District. Judge Weinstein is known to be very plaintiff-friendly in regard to firearms litigation, having been rather creative in his interpretations of liability laws. It was for this reason that the City of New York, in an effort to place blame for the city’s violence, unsuccessfully attempted to use public nuisance laws against gun manufacturers by filing in Weinstein’s court.

In City of New York v. Beretta, filed first in 2000 by the Rudy Giuliani administration, Weinstein ruled in favor of the City. Beretta appealed to the 2nd Circuit and in March of this year, dealing another blow to forum shopping, SCOTUS refused to reconsider the case.

Falling out of favor

Recently the clamor against the practice has reached a fever pitch, and the higher courts are listening. The 5th Circuit ruled earlier this month that chief judge David Folsom of the Eastern District of Texas abused his discretion in refusing to transfer Novartis's patent infringement case against Hoffmann-La Roche out of his jurisdiction. This is the third time since October 2008 en banc ruling in re Volkswagen that the 5th Circuit has granted a writ of mandamus and booted a patent case out of Folsom’s court.

Less than two weeks later it happened again. Another patent infringement case, Motiva LLC v. Nintendo Co Ltd et al, was filed in the Texas Eastern District by Texas lawyer Mark Lanier. Nintendo asked the court to transfer the case to the Western District of Washington, claiming the dispute had no connection to Texas. Nintendo is a Japanese company with an affiliate in Redmond, WA. Motiva is an Ohio company and no witness had any Texas connection. None of this mattered, as in June Eastern District Judge Leonard Davis denied Nintendo's request. Davis was overturned by the 5th Circuit.

In the mandamus order, the Circuit panel found Davis had "clearly abused his discretion" by refusing Nintendo’s request for change of venue, explaining that "this case features a stark contrast in relevance, convenience, and fairness between the two venues. ... No parties, witnesses, or evidence have any material connection to the venue chosen by the plaintiff."

Texas lawyer Edward Reines, of Weil, Gotshal & Manges has been following this issue closely, and told American Lawyer that the law governing venue change requests in the Eastern District of Texas has been transformed. "It's safe to say over the last two to three years that there has been nothing less than a sea change in the law on transfers," noting that the turning point was the 5th Circuit's 2008 en banc ruling in re Volkswagen.

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Salazar v. Buono

Way back in the 1930’s, several World War I veterans suffering from the effects of battlefield exposure to mustard gas, migrated to the desert seeking relief in the dry air. At some point they formed a VFW post. In 1934, Death Valley VFW Post 2284 hired a shade tree welder to construct a simple structure out of three pieces of 4” pipe, fashioning it into the shape of a Latin cross. This fabrication was erected atop a geologic formation in the California desert, known as Sunrise Rock. The VFW championed the now rusty cross, variously described as between four and 12 feet in height, as a memorial to the dead of World War I. Once there was a sign stating as much, but it has long since disappeared.

This was not necessarily a problem at first, as the original construction was on private land. But some years later the land became part of the 1.6 million acre Mojave National Preserve in southeastern California’s San Bernardino County, and therefore part of the National Park Service’s land holdings.

The cross has undergone four changes worthy of mention. #1, it was repeatedly reconstructed and maintained by private individuals. #2, the sign commemorating WW-I veterans is now gone. #3, Congress designated Sunrise Rock a federal preserve in 1994. And #4, although the National Park service allowed the display of the cross to continue, the area was closed to others wishing to erect monuments containing other, non-christian themes. That last one became a problem.

Buono I

The Establishment Clause of the First Amendment to the United States Constitution prohibits the federal government from favoring specific religions, but in 1999 the NPS denied a petition to erect a memorial to Buddhist war dead. Not long afterward, in 2001, self-described practicing Catholic and retired National Park Service employee, Frank Buono, filed suit against the National Park Service [PDF] seeking removal of the cross. While the case was pending the NPS announced the intention to remove the cross. That would have settled the mess, but Congress interfered by passing a bill denying federal funds for the removal of the cross, designating the cross a national memorial, and providing funds for a memorial plaque.

Buono prevailed in district court, and the federal government appealed to the Ninth Circuit. Not unsurprisingly, the court upheld the injunction.

Buono II

Just as in Buono I, Congress attempted an end run. As Buono II was pending, our enlightened lawmakers transferred the land on which the cross sits to the VFW, trading roughly one acre for a nearby five acre parcel. The transfer was pressed through as a rider to a defense appropriations bill. The designation as a national memorial was preserved, and the legislation stipulated that the cross and the land could potentially revert back to the government.

That didn’t fly either. As the Ninth Circuit noted “a reasonable observer, even without knowing whether Sunrise Rock is federally owned, would believe — or at least suspect — that the cross rests on public land.” That did not stop the land exchange, however.

Buono III

Now we have Buono III, in which ACLU attorneys are arguing that the land transfer itself violated the Establishment Clause. The District Court again sided with Buono, writing that “the transfer of the Preserve land . . . is an attempt by the government to evade the permanent injunction enjoining the display of the Latin Cross atop Sunrise Rock.” This decision was upheld and Buono III now sits before SCOTUS.

While the wingnut sphere is ablaze with indignation, room for understanding may be found. The decision of NPS to remove the christian cross and deny religious-oriented memorials would have extinguished the controversy. It was the predominately christian component in Congress, disregarding the consequences of their actions on non-christian U.S. citizens, that fomented the uproar.

The Law of Unintended Consequences

In a joint brief filed in Salazar V. Buono, the Muslim Armed Forces and Veteran Affairs Counsel (yes, there are Muslims serving in the U.S. military) and the Jewish War Veterans of the United States of America observe “by labeling the cross . . .[a] national memorial to veterans of World War I, Salazar ignores and denigrates the service of our non-Christian veterans of that war.” Furthermore, some former military officers appear to be concerned [PDF] that the perception of government promotion of Christianity over other faiths will prove divisive, and will impair recruitment of non-christians.

Decisions, decisions

SCOTUS has now limited itself two choices. The Justices could end the controversy simply by ruling that Buono, the only challenger to the cross, cannot prove direct harm and therefore has no standing. On the surface at least, that seems to be a simple, even mundane point of court procedure, but it could have powerful impact. Such a ruling would imply that opponents of government sponsored religious symbolism anywhere must prove direct harm before being allowed to seek a remedy in the courts.

Alternately the Court could decide this case based on the property transfer question. If allowed, such a decision could affect many other monuments sitting on government property. It could have effect on national cemeteries and national parks, and even the Kennedy Memorial. As the VFW has argued in this case, “… without action by this Court, countless veterans memorials will perish.” Perhaps a bit strong, but indeed there would be effect.

In the end SCOTUS will rule on a case that will define how we will interpret the 1A Establishment Clause in future court cases. Mr. Buono and the ACLU are arguing for fairness, and even the government’s lawyers state that Buono’s case is based upon an “ideological objection that public lands on which crosses are displayed should also be public fora on which other persons may display other symbols.”

Yes, an ideology based in our Constitution… and a belief that what is good for the goose should be good for the gander. Stuffing Christian symbolism down the throats of non-christians seems to be something of which our founders might not approve.

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