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!
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