Whitehouse on the Court
The clip by Senator Whitehouse that Daniel Becker posted here is excellent. For those of you who prefer reading, this issue brief he wrote is also very good:
It turns out that Republican appointees to the Supreme Court have, with remarkable consistency, delivered rulings that advantage the big corporate and special interests that are, in turn, the political lifeblood of the Republican Party. Several of these decisions have been particularly flagrant and notorious: Citizens United v. FEC, Shelby County v. Holder, and Janus v. AFCME. But there are many. Under Chief Justice Roberts’ tenure through the end of October Term 2017-2018, Republican appointees have delivered partisan rulings not three or four times, not even a dozen or two dozen times, but 73 times. Seventy-three decisions favored Republican interests, with no Democratic appointee joining the majority. On the way to this judicial romp, the “Roberts Five” were stunningly cavalier with any doctrine, precedent, or congressional finding that got in their way. . .
I then looked at the 78 cases to see which ones implicated interests associated with the Republican Party. These interests fall into four categories: (1) controlling the political process to benefit conservative candidates and policies; (2) protecting corporations from liability and letting polluters pollute; (3) restricting civil rights and condoning discrimination; and (4) advancing a far-right social agenda. Let’s review these.
First, political control: conservative interests seek to control the political process by giving their corporate, and often secret, big-money benefactors more freedom to spend on elections. This, in turn, helps them drown out opposing voices, manipulate political outcomes and set the agenda in Congress. For proof of this dynamic, look no further than how the Court’s decision in Citizens United proved the death knell for climate change legislation in Congress. Before that fateful decision, which lifted restrictions on corporate spending in candidate elections, Congress had held regular, bipartisan hearings and even votes on legislation to limit the carbon emissions causing climate change. But Citizens United allowed the fossil fuel industry to use its massive money advantage to strike at this bipartisan progress, and it struck hard. The fossil fuel industry set its political forces instantly to work, targeting pro-climate-action candidates, particularly Republicans. Outside spending in 2010’s congressional races increased by more than $200 million over the previous midterm’s levels—a nearly 450 percent increase.[7] Bipartisanship stopped dead.
Second, protection from courts and regulatory oversight: powerful corporate special interests can become accustomed to disproportionate sway in Congress, where they enjoy outsized influence through political spending and lobbying. With government regulators and in federal courtrooms, this type of influence should make no difference. Some regulators are not captured by the industries they oversee and use the power Congress has given them to protect public health and safety. In courtrooms, corporations may find themselves having to turn over documents that reveal corporate malfeasance. They may find themselves having to tell the truth. And they lose their influence advantage; they may even find themselves being treated equally with real people. In response to this corporate frustration, the Roberts Five have made it harder and harder for regulators and juries to hold corporations accountable.
Third, the Roberts Five are making it harder for people to protect their individual rights and civil liberties. In this group of cases, the conservatives reflect an elitist world view that corporations know best; that courts have no business remedying historical discrimination; that views and experiences outside the typically white, typically male, and typically Christian “mainstream” are not worthy of legal protection. Over and over, the Roberts Five have found ways to make it harder to fight age, gender, and race discrimination.
Finally, there are the “base” issues—abortion, guns, religion—that Republicans use to animate their voters. Republicans promise a Supreme Court that will undo reasonable restrictions on gun ownership and protections for women’s reproductive health, and they use this promise to drive turnout in elections. In this group of cases, the Roberts Five have invalidated federal and state laws, acting as a super-legislature to achieve by judicial fiat what Republicans cannot accomplish through the legislative process.
Should I be surprised? The political architects of the Gilded Age were also the political architects of the Great Depression, albeit with assist from conservative Democrats that sometimes advertised themselves to be progressives (e.g. Wilson). That the Republican Party still exists just goes to show that the US electorate is incapable of grasping the arc of its own history or taking control of their own fate. So much for united we stand. We are quite good at long division though.
Don’t forget that, with the Hobby Lobby decision, the court ruled that terrorists can kill as many people as they like, without interference from the police, as long as they can demonstrate a religious reason for their actions.
Rick: Change that to a “Christian” religious reason….
correct
Adding 8 or so liberal Justices
to the SC, which a Dem-controlled
Senate might consider, would make for
a very unwieldy (yet feisty) Supreme Court, no?
When FDR & the New Deal tried this, it
became a ploy to get old reactionary
justices to resign. They did so & the
court-packing plan never came to be.
Fred:
Unless one considers taking up more than the 85 cases they now review. Have more than one SCOTUS and an en banc SCOTUS on more serious cases.
Here is an open letter to Barrett from her Notre Dame colleagues.
It appeals to her better side. I don’t think one exists though.
Whitehouse:
‘ Have more than one SCOTUS and an en banc
SCOTUS on more serious cases.’
Would that not entail a Constitutional
amendment, one wonders?
Adding more Justices does not.
DB,
You are correct. She has no better side at all and she is a lying sack of shit. Her claim that she did not know that Alliance Defending Freedom was an influential anti-LGBTQ legal organization in sworn testimony clearly shows that.
Erwin Chemerensky on Barret (partial):
With that in mind, one line (first) of questioning should be to push Barrett on whether she can identify anyone holding this originalist approach who ever has supported abortion rights or the right of same-sex couples to marry.
Barrett would refuse to answer questions about how she herself might rule on these issues, but it would be useful to get her to acknowledge that judges ascribing to her philosophy would be unlikely to acknowledge either of those rights.
A second line of questioning should focus on how little weight she would give to previous rulings. As a law professor, Barrett wrote that precedent deserves little, if any weight, in constitutional law, noting that, “a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”
Here’s why that’s dangerous: Over many decades, the Supreme Court has protected many constitutional rights that cannot be justified from an originalist perspective, including the right to marry, the right to procreate, the right to custody of one’s children, the right to control the upbringing of one’s children, the right to purchase and use contraceptives, the right to abortion, the right to engage in private, consensual adult same-sex sexual activity and the right to refuse medical treatment.
There is nothing in Barret’s writings as an academic or a judge that suggest she would not vote to overrule the decisions that recognized these constitutional rights, and senators should press her hard on that point.
A third line of questioning should focus on Barrett’s writings compared to her rulings on the bench. As a law professor, she strongly criticized Supreme Court decisions protecting a woman’s right to abortion, upholding the Patient Protection and Affordable Care Act, and establishing a right of gay and lesbian couples to marry. She now has been a federal court of appeals judge for more than two years. She should be pressed to identify any instance as a judge where she took a position different from what she espoused as an academic.
How the Senate should question Amy Coney Barrett to show the threat she poses
“It appeals to her better side. I don’t think one exists though.”
It was her response or lack of a direct response to a question on voter intimidation that really concerned me. Some questions should be very easy to answer and this was one and she totally danced around it.
Personally, I wish one of the Dem’s would realize that what really needs to be done in questioning is to wind her up. Ask her about her. I posted the following as a comment at Crooks and Liars:
“So, ask her more simple life questions. Example: You wrote that life begins at conception. How do you know that?
Is the Earth round? Did we actually go to the moon? Is Elvis alive?
Is there a God? How do you know that?
What is justice?
Please define “life”.
Which side of the bread is buttered?
Is marriage only the purview of religion? Is the word “marriage” codified in our laws?
What defines one as a human?
Should we look to nature for understanding of life?
Is nature only heterosexual?
Please define money.
Please define “Obscene”.
Please define “Philosophy”.
Please say the word: T-O-M-A-T-O, P-O-T-A-T-O
Who won the civil war?
I say your freedom begins where mine ends. Am I a good person?
Was Solomon wise to threaten to cut the baby in 2?
Does time really slow down as one goes faster?
Apple or Orange?
Get it. They need to stop treating this like it’s anything other than a done deal and instead waltz her around and around. Have fun with her. Wind her up.”
@D Becker,
U get an “atta boy” from me on that one.
Meanwhile, eyes on the prize. Even though this is not really an electoral democracy, election results do matter, but hand-wringing not so much.
The premise that “human life begins at fertilization” has never made sense. Human sperm and human oocytes are human life and they are alive prior to fertilization. Human life is a continuum, made possible by the continuity of the human germ line. Sometimes, the defenders of the fertilization add “unique human life,” but thanks to meiotic recombination and independent assortment, every sperm and every egg is unique, human and alive. There is no biological basis for the life begins at fertilization claim. It is a purely religious/arbitrary line.
Joel,
No, not really arbitrary. What is a sperm going to be when it grows up? What about an egg? What is the sound of one gene clapping? Is half a chromosome really better than none? The egg can only put out a vacancy sign, but cannot proceed to mitosis without a dance partner.
The best argument for legal abortion is war, particularly Hiroshima and Nagasaki at the end of WWII. Long before nukes, great human life was already being wasted in wars, but also indigent population relocations (e.g., Trail of Tears). If an elite class controls most of the money then they have nearly all of the social power, including making decisions about life and death. So the conflict is not about all life being sacred, but rather the sacred right of alpha humans to choose who lives and who dies.
So, don’t you feel better now?
In truth most conservative elites could probably care less about abortion. Certainly Fat Donnie doesn’t. However, so-called pro-life advocates are a reliable source of cheap votes for the Man Who Would Be King. Those raised on guilt and lacking comprehension of Genesis 4:9 similarly to their misunderstanding of Matthew 22:21, which had a much different context than Romans 13:1, reach conclusions on what is written in the Bible unconstrained by its actual meaning. If my generation is hampered by its poor communications skills then what will happen to the generation raised on twitter and texting?
IOW, at least on TV most of the dialog is written in complete sentences :<)
@Ron,
Nothing you posted changes anything I wrote. The claim that human life “begins” at fertilization is nonsense because both the gametes are human and alive. The fact that they are haploid doesn’t change that.
The uniting of the sperm and egg nuclei doesn’t result in a pregnancy. The zygote must first implant in the uterine wall or there is no pregnancy. Why not make implantation the line? Of course, gastrulation is the stage at which the germ layers–ectoderm, mesoderm and endoderm–are first specified. Until then, the lineages that give rise our organs and tissues are not established. Why not make gastrulation the line? The patterned expression of the HOX genes around the time of neurula formation is what establishes the axial body plan–the sites where our organs and limbs will eventually form, rostral to caudal. Why not make the time of HOX gene expression the line? Or the time of embryo heartbeat? Or the time the fetus can survive after being removed from the womb? Or the time the newborn draws its first breath?
Making fertilization the line is arbitrary.
@Joel,
Gametes are alive, but only half a human. No problem though since I have half a mind not to care. OTOH, let’s not push the gametes too hard or we will have capital punishment as the sentence for male masterbation. I think it is unfair that women can masterbate without killing anyone. Maybe that is what upsets the Bible thumpers too.
In any case, war is arbitrary murder as well as evidence that the sanctity of life is arbitrary. When convenient for economic or political purposes then murder is justified. AI is arbitrary, but I am not sure which part. Having the power to pick who lives and who dies must be comforting, but I still do not want a robot making those decisions. It is bad enough that half-humans (in another sense) have that power.
It is more fun to be angry at the small minded little people than it is to be angry at elites because if we really piss off any of the small minded little people then there is not anything that they can do about it. They lack the power. We are trained from birth to fight among ourselves and leave the elites alone to run the world.
@Ron,
“Gametes are alive, but only half a human.”
@Ron,
No, gametes *are* human, and not “half a human.” Human sperm and egg are 100% human and 100% alive. 100% of each haploid genome is still human. When the claim is “human life,” the distinction between haploidy and diploidy is arbitrary.
“Pro-life” is really pro-forced birth. War, capital punishment, withholding medical care because of pre-existing conditions and achieving herd immunity through infection are not pro-life, either.
@Joel,
OK, you win. I admire your conviction.
We are having ham and chicken on English muffins for breakfast.