The Case for Justice

 

Back in 2000, when Bush v Gore was decided by a 5-4 Supreme Court decision, many felt that the Court had acted hastily and did not adequately weigh the matters at hand. Others believed strongly that the Court decision was partisan with Justice Sandra Day O’Connor casting the swing vote in favor. A cartoon of that day showed the justices in robes with elephant legs–as they say, a picture is worth 1000 words. Pro Publica reviewed that decision recently here. The Republican Justices at that time were: Chief Justice Rehnquist, and Justices Thomas, Scalia, Alito, and O’Connor. As noted above, O’Connor has later indicated that she regretted that decision. (Too late now!) Answering in dissent were Ginsberg, Kennedy, Breyer, and Stevens.

For the Court to work, it needs to be considered impartial and fair. Many recent decisions were not viewed that way by many and have been discussed in this column previously. So just what is “justice” anyway? As I was curious about descriptions for justice, I looked up some quotes and found these:

· “Justice will not be served until those who are unaffected are as outraged as those who are.” Benjamin Franklin.

· “Man’s capacity for justice makes democracy possible, but man’s inclination to injustice makes democracy necessary.” Reinhold Niebuhr.

· “If one really wishes to know how justice is administered in a country, one does not question the policemen, the lawyers, the judges, or the protected members of the middle class. One goes to the unprotected-those precisely who need the law’s protection most!-and listens to their testimony.” James Baldwin.

· “True peace is not merely the absence of tension; it is the presence of justice.” Dr. Martin Luther King, Jr.

The public usually sees the Supreme Court by virtue of the decisions it produces and weighs them by the balance it shows. The upcoming session which, starts in October, has already accepted issues concerning abortion and gun rights, both of which are controversial. However, in recent years, the Court has accepted fewer and fewer cases for review, often sending them back to a lower court or not accepting particular petitions. The former president often tried to bypass the lower courts and go directly to the Supreme Court in his elections and immigration issues; sometimes they allowed this, other times the court refused to hear his case. Cases addressed on the “shadow docket” never get a full hearing and often are decided with unsigned opinions. According to this article in the American Bar Association death penalty review, knowing how and why decisions are made is integral to the public’s understanding and trust in the court. A single justice often heard appeals against former Attorney General Barr’s rush to execute many federal prisoners on death row before he left office and they could go forward without public notices or review. The court receives between 7-8000 petitions per year and usually hears fewer than 60.

Recently Justices Thomas and Barrett have blamed the press for comments about partisan decisions about the court. Both indicated that the court was nonpartisan. Barrett pointed to the many unanimous decisions, but others have noted that many of those did not apply to the issues of concern by the country at large, but instead addressed points of law that needed limited clarification. Writing in the Guardian in opposition to her remarks, David Sirota notes she is trying to say ‘war is peace’ and trying to convince the public with absolute hypocrisy, (or as others have said, she is trolling us!). Noting that three justices (Barrett, Kavanaugh, and Roberts) worked in the years before their appointments for the Republicans trying to get George Bush declared President in the 2000 Supreme Court case noted above, Sirota showed they were partisan before they were ever nominated. Kimberly Strawbridge Robinson, writing in Bloomberg Law, noted that Justice Thomas also commented on the impartiality of the Court and indicated he thought the media missed the nuances in many of the decisions of the court. He insisted the decisions were not being written for personal preference. 

Even Justice Breyer weighed in from the pages of his new book, claiming that I based his decisions on the law. He believes that the court should not be manipulated, as some have suggested, by adding more members and states that the court needs to explain its processes better so that it can continue to have the confidence of the people. He also stated that he was not yet ready to retire which gave many Democrats headaches and heartburn as they are concerned that they may lose the Senate in the mid-terms and Senator McConnell could stop any Biden nominees, should Breyer die or have to step down. The Senator has already indicated that he would not allow any Biden nominee to proceed to confirmation, much as he did with President Obama’s nomination of Judge Garland. A belief in Republican absolute power is the only belief McConnell seems to have.

Writing in the Washington Post, Jacqui Calmes notes that Justice Kavanaugh lied to Senators in multiple hearings both for his Court appointment and for lower court positions. She further reports that during the hearings where Christine Blasey Ford made her accusations about his conduct, the FBI received over 4,500 tips against his early behaviors, which were subsequently buried by the White House. Other lawyers, citizens, and judges considered his credibility suspect and claimed they could prove he knew about stolen Democratic emails, which he claimed to be unaware of during his hearings for the Appeals Court position. Their protests went to the Judicial Court Review but were eventually declared moot once he was on the Court. (Whew, he missed that one by a hair!) Calmes reports he also went from the Starr investigation of Clinton to the Florida Bush contest to the Bush White House and cannot be considered impartial. Many also thought him to be still angry about the damage to his reputation from the recent Senate hearings and ready to exact payback. Still, Ruth Marcus, also in the Post, notes that protesters who showed up at his home to weigh in against his Texas abortion decision crossed a line, which should not happen. I agree they should not intimidate families.

So, it seems that the Court is yet another institution that the former president has tainted. Perhaps some of this publicity will help to push the pendulum of justice back toward the center where it belongs. I guess that readers here would like to trust the Court; it has always been an institution we value. But recently, with the stakes so high in a divided nation, we need to believe that we can trust in the impartiality of the Justices’ decisions. Lately, their actions have made us wonder.

We need a strong Congress to pass laws that are not ambiguous about voting rights to overturn the Selby County decision. Some say we need a constitutional convention to overturn Citizens United; I would rather see Congress pass legislation that clarifies the errors in the ‘corporations are people's decisions and allows dark money. The delays in passing voting legislation which could affect redistricting and gerrymandering almost seem too late if something is not enacted soon. Senator Manchin keeps talking about getting a bipartisan decision and has rewritten the Senate Bill, which differs from the one already passed by the House. Something needs to pass now. It is time to remove the filibuster from non-financial laws. More delays, it appears, are not productive. Manchin is now making noises about delaying the presidents’ major infrastructure bill until next year. Who gave him this much power? Leader Schumer should organize his Democratic caucus, but many fear that Manchin will give into entreaties from McConnell and change parties which would then make McConnell the Majority leader, so everyone is walking on eggs.

More on 9-11:

Last week I mentioned I did not have time to discuss an alternative column about 9-11, so I will do so now. Laila Lalami, (who is a Muslim author) writing in the New York Times, noted that American Muslims remember those days differently from most other Americans. For some, they became days of detention, surveillance, special registrations, and restrictions. Others were subjected to unwarranted attacks because of their physical appearance or attire. The creation of the Department of Homeland Security and its threat levels heightened tensions among many immigrant populations. Provisions of the Patriot Act threatened the freedom and privacy of all of us. Still, once the former president came into office, others were trapped outside the country and not allowed to return to America to see their families or go to a Muslim country for a relative’s funeral. His Muslim ban caused much hardship among Muslim-American citizens. I can understand parts of her arguments as I worry that sometimes we glorify war when war is a failure of people to communicate and comprehend. Some do not wish to avoid war. Many Americans initially believed that going into Afghanistan was justified; few people I know agreed that invading Iraq was necessary, despite the PR campaigns of Cheney, Rumsfeld, and others.

The wars in Iraq and Afghanistan, according to the Economist, lessened American standing in the world as our troops and others were allowed to torture, and our military no longer accounted for civilian deaths. According to Lalami, Americans fighting in the wars in Afghanistan and Iraq led to the deaths of thousands of civilians. Unlike in Vietnam, the military no longer gave out daily ‘body counts’; (many of those were inaccurate, anyway then.) {She states, without validation, that additional bombings killed over 800,000 people, including 335,000 civilians in countries such as Pakistan, Somalia, Yemen, and Syria, and led to the displacement of over 38 million people. Pretty terrible, if true.} 

According to United Nations tallies in Afghanistan alone in the last twelve years, there have been over 50,000 civilian casualties, which include about 20,000 deaths. (We should also note that the Taliban, Al-Qaeda, ISIS, the Kurds, Syrian troops, and others also contributed to uncounted numbers of civilian deaths across that area; almost 5,000 American and additional allied forces were also killed in the two decades of war.) The military term ‘collateral damage’ somehow does not cover this situation well.

This week, the American military apologized for a remotely targeted bombing of a car in Kabul, which killed several adults and children of an innocent Afghan family that the military had mistakenly claimed was affiliated with ISIS. Investigative reporting on the ground led to the reversal of previous claims by the Americans.

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Some brief notes on the COVID pandemic–cases and death totals continue. This week we reached over 42 million cases in the United States! On Friday, an FDA panel advised booster shots for those over 65 and others who are immunocompromised. The President had hoped to open up the third shot to all vaccinated people, but the experts do not advise that. About a million people a day are getting vaccinated, but we still have quite a ways to go to be considered fully vaccinated. Maryland is now 63% fully vaccinated. Tennessee, West Virginia, and Alaska lead the country with the highest numbers of cases per 100,000 population.

COVID Stats- NY Times:

US totals: Total Cases: 42, 015,351. New Cases: 148,202

     Total Deaths: 673,929.  New Deaths: 2,011.

Maryland Totals: as of 9/17/21: Total cases: 516,784. New Cases:1,525 (highest in months!)

                                                    Total Deaths:10,250. New Deaths: 12.

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Guess I ran long this week; so much happening! Latest news from the Washington Zoo–some big cats i.e., Lions and Tigers–oh my! tested positive for COVID and have been vaccinated.

“Til next week-Peace!