Bush-League Supreme Court
Of the damage this presidency has done to American society, the worst and longest-lasting is just becoming visible.
As the Supreme Court ends its 2006-2007 term, signs of a tectonic shift in the legal landscape show an ultra-conservative majority in place to curtail individual rights to privacy and protections from discrimination.
In the most striking decision so far, the Court in April upheld by 5-4 a federal law banning a type of abortion in the middle-to-late second trimester.
In her dissent, Justice Ruth Bader Ginsburg pointed out that the majority opinion “cannot be understood as anything other than an effort to chip away a right declared again and again by this court.â€
In the New Yorker this week, Jeffrey Toobin notes that, with the coming of Roberts and Alito, the Court is now poised to fulfill the long-hoped-for conservative agenda: “Expand executive power. End racial preferences intended to assist African-Americans. Speed executions. Welcome religion into the public sphere. And, above all, reverse Roe v. Wade, and allow states to ban abortion.â€
It took two Bushes to accomplish this…
If you don’t find all this too depressing, there’s more on my blog
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22 Responses to “Bush-League Supreme Court”
“an effort to chip away a right declared again and again by this court.â€
Would have been more accurate to talk about the right that was “created by the court”.
“Would have been more accurate to talk about the right that was “created by the courtâ€.”
So, you’d be fine with all your medical records being a matter of public record and available for anyone to review?? That’s what RvW did, make your discussions, decisions, and treatment confidential between the two parties. The same as a lawyer/client privacy previlege. Unless, of course, you don’t mind having everything you and your lawyer talk about being public record either??
Exactly C.Stanley.
Christine: it’s called a trick to push through a progressive, radical agenda.
Robert: so you complaint is that this court will actually interprete the Constitution in a way it had been interpreted for decades, even centuries, until progressive judges broke with tradition and decided that it was perfectly fine for them to create a few rights every here and there?
MVDG customarily starts his arguments with the assertion that there is a right way (his) and a wrong way to interpret the Constitution
Of course, if one interpretation is posed as an axiom, a given, then all other arguments follow.
It’s pointless to argue particulars (like Roe), with a closed mind.
The reality is that there are differences in interpretation and always have been, among scholars, legal experts and historians.
For some, it’s just convenient to ignore reality and insist that there is only way to make an omelet.
Wow Mike, I had no idea you were such a scholar of US jurisprudence.
Can you cite some of these instances in which progressives “broke with tradition and decided that it was perfectly fine for them to create a few rights every here and there?”
Well, let me help you.
Brown vs. Board of Education ring a bell?
You are correct, that was indeed a radical progressive agenda at the time. As was shown in Plessey v Ferguson which I’m sure you preferred.
Sort of like Weeks v. United States or Mapp v Ohio . Think of all the guilty that have been set free due to those rulings!
And don’t even get me started on Korematsu v United States! Thankfully it appears the Bush administration has found a way around that travesty of justice.
And what’s truly sad is you’ll probably have to go look up all but one or two of those rulings.
Yeah, a real scholar.
Of course the writers of the Constitution never believed that any citizen should have any rights of privacy from the government at all. None. They wrote nothing into the Constitution that could be reasonably interpreted as protecting the individual from the government’s right to invade their privacy.
What the anti-RvW people like to claim is that it was a right to abortions that was created. What it really came down to was that it was none of their business. That privacy included medical procedures and that abortion was considered a medical procedure, not the murder of a human being as they want it to be considered.
There was no new right created, just another chink in the edifice of the self-righteous who know themselves to be so morally superior that their viewpoint should be the law that controls other people’s lives.
Umh, Davebo: I studied international law, then Dutch law, always kept a great interest in US law and now American Studies. Never think for one minute that I know nothing about these issues and do not even try to play your “he’s NOT American!” card.
And – from the perspective of a legal scholar, yes, those rights were created by the courts, while they – in the opinion of every supreme court before that – should have been changed by law, not by a court ruling.
Doma: where did I say that? In that comment, I referred to how the Constitution had always been interpreted before progressive judges had the majority. That’s not implying htat there is only one right way to interprete the Constitution, that’s looking at history and saying, it was never interpreted like that before, why should we now do so?
The progressives simply applied a different philosophy of Constitutional Law. The philosophy was alive and vibrant for a long time before iit was acted on, BTW.
It’s sort of like changing the strategy in Iraq.
My point was, that once you insist on one interpretation and that no other interpretaton is valid, then the conversation ends.
I appreciate that conservatives don’t like change.
Insofar as that leads to caution, I quite admire that.
When caution leads to a ‘cast in stone’ attitude, however, it can be deadly, and my admiration evaporates.
I just note that having done something for hundreds of years does not preclude the possibliity that for hundreds of years it’s been done wrong.
Sure, but that it has been done like that for hundreds of years should make on – in my opinion – think, not twice but three four or even five times, before changing how things are done.
Let me phrase that better.
All your arguments start with the assertion that one partocu;ar iphilosophy of Constitutional Law is the only acceptable one. That implies that, even if theoretically other interpretations may be possible, they are intrinsically unacceptable and, therefore, not valid.
The result is the same, whether you state it or imply it.
We cross posted.
Re your last comment, the change in philosophy did not descend out the blue. It had been thought about and discussed for a very long time.
Like I said, I admire caution, just not to the point that it obstructs new avenues of thought.
In the end, it’s an argument about when the right moment for change actually is. You can jump the gun, or you wait too long.
Um, if it wasn’t for a few of those decisions by “activist progressives” we’d still have Jim Crow in the South, Michael. Doesn’t sound much like justice to me.
Conservatives like you were up in arms over the Warren’s court’s 1954 decision in Brown vs. Board of Ed. which declared segregated schools separate but unequal.
The progressives push the country in areas that the congress is too cowardly to legislate.
Kim: of course, I favor desegragation and equality, however, as I believe one should interprete the law (and especially the constitution), those rulings were, indeed, not right.
Doma: so is yours – you basically say that every interpretation is valid and that if one doesn’t believe that, one is ‘not right.’ In other words – you appear to be tolerant, except for when one disagrees disagrees with you.
MVDG-
In characterizing my postition, you are partially right in that I do believe that an always-progressive or always-conservative approach does not serve a nation well over time. Being too progressive can lead to volatility and instability, while being too conservative can lead to sticking to bad policies way beyond any excuse for then and the rejection of new and beneficial insights just because they are new.
I am a fan of Sandra O’Connor’s questioning how a law or interpretation will affect real people. As in politics, I think SCOTUS would function best not when it’s all conservative or all progressive, but when it includes both ideologies with a healthy centrist contingent. That would safeguard stability without stifling progress.
As to my intolerance, of course, it’s not possible for me to believe that I am right and my polar opposite is also right at the same time. How much respect and consideration I give to opposing views depends on how they are presented.
If a conservative says that a conservative approach is best in a given time and context, I respect that and consider it seriously .
However, if a conservative asserts that a specific policy proposal in a specific time and context is right just on the grounds that it is conservative, I would not respect the argument, and would have to overxome a low opinion of it to give the policy itself a fair look-see.
Needless to say, I would apply the same attitude to progressives. While I can respect an overall conservative or progressive approach, I can not do so when the word ‘always’ is inserted in the statement.
You are right in this respect: I am very intolerant of loyalry to a party, nation, person, religion or ideology when it becomes blind loyalty and rote obedience, when it falils to checki what is actually happening as a result. I consider that to be the most dangerous state of mind of all.
Supporters of communism in the early Soviet era, were not evil people with intentions to destroy the world. They were idealists who were so loyal to an ideology that it took forever for them to recognize what was actually happening. That sort of fanatic loyalty can rise from any ideology, and I fear it and oppose it above all else.
Doma,
Let me try to phrase this in a certain way to see if it meets your criteria of respect.
I’m not saying that SCOTUS should interpret the Constitution in a particular way because it’s conservative; I’m saying that they shouldn’t interpret it so broadly that they are creating rights that aren’t there. Despite Jim and Christine’s assertion that this is all about privacy, the rulings from Roe onward have actually made it a Constitutional right for a woman to have an abortion because they’ve ruled that the states have no right to restrict that procedure (despite the fact that the states regulate the practice of medicine and restrict all kinds of other medical procedures, sometimes on the basis of ethics). Consider for example, the issue of organ donation; one person couldn’t compel another to donate an organ. If the fetus is a person, then the fetus certainly shouldn’t be compelled to be sacrificed in order to prevent distress to the mother. If the fetus is not a person, then there’s no such conflict. If the courts interpret the law in the way that assumes that there is no conflict, that the mother’s rights always trump any interest of protecting the life of the fetus, then they are in fact, creating a new right that does not exist in the Constitution because they are presuming that this right to terminate a pregnancy is of utmost importance for the states to protect that they aren’t even permitted to interpret fetal right to life at all.
If the conclusion was that the states were restricting the procedure in a way that interfered with privacy, and that the states didn’t have an overriding interest to do so, that would be different. But even the majority decision in Roe stated that the justices knew that the crux of the matter was when the right to life began, but they decided that since they couldn’t figure out a way to determine that which would be universally agreed upon, that the courts would decide it (the trimester system determining some possibility for restricting late term abortions, so that some rights were given to the fetus at that stage- but then later health exceptions were interpreted so broadly that even that was taken away.)
What I’m asserting (and even some legal scholars and some pro-choicers believe) is that this was a poorly crafted legal decision. There was an issue of determining when the states had the interest in protecting fetal life, and because that decision is difficult the court decided not to let the state legislatures decide it.
CS-
You are re-arguing RvW and reiterating the entire anti-abortion litany.
As you well know, there are equally lengthy and ponderous analyses coming to different conclusions.
As we disagree on just about everything when it comes to ‘fetal rights” I don’t see any benefit from rehashing old arguments over and over and over.
When it comes to the law, everyone is an activist., including every single member of SCOTUS. Each acts to ensure that his philosophy will prevail and to suppress differing philosophies.
CS,
And that is the crux of the question, isn’t it? You believe that the fetus is a person. Based on that you feel that you and those who agree with you have the right to force those who disagree to live according to that belief. But you’re not an activist. Oh, no.
Michael believes that
This would be true if everything that is knowable has been known for those hundreds of years, thus answering the question with no doubt as to whether we should consider even a blastocyte to be a person. Or if you feel that because a single religion is the majority that their right to rule the lives of the minority is largely unlimited. Would you support the overturn of Griswold? Does the state have the right to ban the sale of all forms of contraception? What about the Blue Laws that forced businesses to close on Sunday? These laws forced Jews who shut their businesses on their Sabbath to also close on the Christian Sabbath but were upheld when the specious claim was made that it was only so employees could have a day off. Have you ever taken a course in logic, Michael. Your post is considered one of the most basic logical fallacies.
And you believe the fetus is not a person so you feel you should be permitted to force that belief- to say that society should sanction what many of us believe is murder.
Doma,
Well, I guess I should give up since it seems that even when I try to meet the conditions you set out for you to respect my opinion, you once again claim that I shouldn’t be given time to express my view. It’s incredible; every time someone brings up the abortion issue from the pro-choice viewpoint, you feel free to express agreement and then as soon as I express my reasons for disagreement you say something along the lines of “oh, you are just rehashing an old argument”.
Yes, I do know that “equally lengthy and ponderous analyses coming to different conclusions.” Which is why, when someone else expresses agreement with those other conclusions, I would like to express my agreement with certain other conclusions and ask people to consider them. I’m not sure why I should feel that I have to have your permission to do so, or that if I choose to do so I’m continually subjected to your dismissive comments. Perhaps you want to make sure that people don’t spend too much time thinking about what I’m actually saying- perhaps that conclusion is a bit too uncomfortable for some people.
CS-
First of all, in this thread, I had not talked about abortion directlly at all. only about SCOTUS and tha law.
Second, this statement…
“you once again claim that I shouldn’t be given time
to express my view”
….is completely false.
It’s not im my power to grant or deny opportunities to speak, even if I wanted to. It’s a prime example of why our debates don’t lead, anywhete, though. I have to spend an enormous amount of time pointing out what I did not say and did not claim.
The point is that we both know at the outset that we don’t agree on this topic. We also know that we won’t agree at the end. of a debate, no matter how long. Anything I could say at this point would mean going over old ground one more time.
Your comment brings up certain points favorable to your opinion, but doesn’t even touch on the issues that matter most to me. Whatever you omitted, I have already expressed over and over. Do you really want to hear all of it again?
The only thing I haven’t done is expund on the legal opinions pro and con. It’s a compkicated subject, and given our lack of successful exchanges on much simpler issues, I simply lack the mental energy to open new ground for fruitless back-and- forths
You stated your case. It’s here on record.
I simply dmur from flogging the dead horse of repeaitng mine.
CS,
This is so much crap:
No, I think you should just mind your own business because neither you nor your minister or priest or the head of your local chapter of National Right to Life are God Almighty, no matter how much you may desire to act the part. You claim to know what God wants. I don’t believe you and don’t think that you should have your particular interpretation of his desires written into law. But apparently in your opinion for you to have to co-exist in a society where your beliefs aren’t the law is forcing you to sanction those things you don’t like. Might I suggest religious conversion and a move to a nice Islamic nation? Then you wouldn’t be faced with anything as nasty as having to accommodate the nasty non-believers.