Wednesday, June 27, 2018
Justice Kennedy's Retirement
I'll bet Supreme Court Justice Anthony Kennedy's impending retirement will steal center stage from the Red Hen. Not that it was unexpected, he is 81 and had already spoken of retirement. But it will roil the waters for some time to come. The present political reality guarantees that appointments will be fraught with drama. Another justice to watch is Ruth Bader Ginsburg. She is 85, and a cancer survivor.
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This is all part of the Repub apocalypse. I picture Mitch and the boys a-slobbering and a-slurping to hardwire plutocracy judicially for 25 years. In the 19th century, they endowed corporations with personhood. Now they can make them gods. We'll also see if they repeal Roe v. Wade and start a new era of abortion tourism. Like casino buses.
ReplyDeleteSee this as well: https://www.nytimes.com/2018/06/26/opinion/becerra-trump-hawaii-christians.html
DeleteAnd this: https://www.nbcnews.com/feature/nbc-out/lgbtq-advocates-celebrate-kennedy-s-legacy-fear-what-s-next-n887131?cid=eml_nbn_20180627
DeleteJust because you might be paranoid doesn't means that the bastards aren't out to get you!
Something to keep in mind is that sometimes SCOTUS justices have been known to vote in unexpected ways. And a president can't fire them once they are seated.
ReplyDeleteThis comment has been removed by the author.
Deletehe last one to upset his appointer was, coincidentally, Kennedy. When Reagan appointed him some abortion promoters were so close to despair they might have made used the procedure on themselves. But Kennedy didn't perform as expected.
DeleteBut the last one to disappoint may have been the last one of those justices on the right. Presidents used to look for good lawyers, and they would consult the American Bar Association, to which all the lawyers belonged. But then the Federalist Society was born as a right-wing alternative to the supposedly, but not really, liberal ABA. The Federalist Society is where Trump got his list, and every last one of those guys has been chiseled and sanded to fit a mold that is good news for big business and bad news for employees.
An example is yesterday's decision on labor unions, which overturned a 40-year-old Supreme Court decision. So much for stare decisis (the principle that similar cases should produce similar results). Legislating from the bench? You bet! It was written by soapy Sam Alito, whose main qualification was Federalist Society membership.
Pope Leo XIII believed in the right of workers to organize. The Church teaches the right (if not always upholding it). The Federalist Society thinks unions are an excresence on face of he body politic.
"...presidents used to look for good lawyers..." Tom, I hope he will at least pick someone who has passed the bar exam and has spent some time on a judicial bench. Not like his secretary of education who never worked in a school, or his secretary of HUD who knew something abou neurosurgery. Of course his idea of a good lawyer is Giuliani, so I'm not holding my breath.
DeleteThat would be nice, Katherine, but so far, Gorsuch is right on track.
ReplyDeleteI have said before that SCOTUS is something that practically begs for term limits; say 18 years. I can't think of any other reason than party loyalty for septuagenarians and octogenerians to hang on. I'm not elder bashing; I am an elder. But where else do people feel like they have to keep working into their eighth decade? Does anyone know if it would require a constitutional amendment to impose term limits?
DeleteSCOTUS term limits: 25 years of membership or 75 years of age: which ever comes first.
DeleteWe are screwed! The concept of stare decisis + $3.00 will get you a bad cup of coffee at BigBux. Roe v Wade and Marriage Equality can be made history within 6 months of the new member being "seated."
ReplyDeleteEnough with Roe v. Wade. The most the alt-SCOTUS will do with it is nullify it, like Roberts nullified Brown v. Board of Education a few years ago. He even cited Brown in the decision. If they nullify Roe (and, remember, Roe on the books gets more votes for Republicans to reverse it than Roe off the books can get), abortion goes to the states, and the last condition of the opponents will be worse than the first.
ReplyDeleteWhat an alt-SCOTUS will do is make sure your employer, landlord and state agency you have to deal with will have absolute power over your mind and body. (See the union case decided today.) And it will set in concrete the current trend to give the corporation more votes than the individual, as befits a "person" with more money.
If the Ds -- as Chuck and Nancy seems to want -- make Kennedy's departure all about Roe, they will continue to be brain dead while anybody who needs an even break from any rich person, corporation or agency becomes a serf. The serfs may wonder why what they thought was their party is so hung up on abortion. But their party will remain too brain dead to notice.
The Democratic Party could not even compromise on late term abortions, with the skull crushing and all that. They thought the United States of Abortion and identity politics would carry them through while being as pro-corporate as the Repubs. Well, we'll see how much backlash there is regarding abortion.
DeleteRoe was decided on a right to privacy. But it has become about women's right to autonomy of body. Those such as Emily's List are going to continue to play that card. Making this election (both the midterms and looking ahead to 2020) about abortion and culture wars, and not about countering Trump and the alt-right, is going to play right into their game plan.
Delete"What an alt-SCOTUS will do is make sure your employer, landlord and state agency you have to deal with will have absolute power over your mind and body. (See the union case decided today.)"
DeleteIn that union case, the court ruled that a public sector union can't compel non-members to pay dues. To the best of my knowledge, it does nothing to prevent the public sector unions from persuading those non-members to join the union. Inasmuch as a common objection to paying union dues is that the union supports political candidates whom the non-members don't like, one strategy would be for unions to begin supporting candidates whom the non-members like.
Nor does the decision prevent public sector unions from endorsing candidates, campaigning on behalf of the candidates, working to get out the vote on behalf of candidates, etc.
It's possible that this ruling will result in lower donations to Democratic candidates; and I would guess that, even more so, it will result in less funding for Democratic-leaning Super PACs and similar advocacy. Those Democratic candidates can respond by seeking campaign funding from a broader and more representative (and, in some cases, less conflict-of-interest-laden) cross section of the electorate. Naturally, that would require those candidates to seek to appeal to that broader cross section. Seems to me that this is the practical way that democratic politics can be subordinated to the common good: politicians less beholden to special interests, more beholden to the electorate.
Oh, come on, Jim. This is nothing about dues. What non-union employees were paying for is the union's negotiating efforts IN THEIR BEHALF, but not paying for the union's organizing or political activities. Forty years ago, we knew free-loaders when we saw them, and so did the Supreme Court. Now the Koch Brothers have convinced the free-loaders that they should ride free, and the court has tugged its collective forelock and gone along with the Kochs. Already the Freedom Foundation has dispatched trained organizers (when were they trained? did the Freedom Foundation have a tip-off on the ruling?) to union states to "help" workers and state officials spread the free-loading far and wide.
Delete(Yes, the Kochs fund the Feedom Foundation. And yes, the Kochs can spend anything they damn want because of the same Supreme Court that just said unions have to pay their own money to help freeloaders get raises or health benefits.)
This ain't logical. It is simple money and power.
"This is nothing about dues. What non-union employees were paying for is the union's negotiating efforts IN THEIR BEHALF, but not paying for the union's organizing or political activities."
DeleteTom, ask any Democratic candidate who relies on union support whether this is about dues. If you can somehow slip him/her truth serum before you pose the question, they'll answer, "Absolutely it's about dues, and making them flow to the Democratic Party."
I'll concede that we're past the days when the local's dues were kept in a cigar box in the local president's desk drawer, but the cigar box principle still holds in this day of electronic money: it's fungible. Any money anyone pays to the union, or some portion of that money, is going to pay for the union's political activities.
Now - it seems logical to me that, if you don't join the union and pay the union dues, you shouldn't get the union's services. Negotiate your own wages with the company. If there is a safety issue, try to prevail upon the company on your own to fix it. And so on. That seems fair, too.
Jim, Lay off the Kool-Aid. Yes, unions support Ds. Have you ever heard of the National Federation of Independent Business, which fights unions when it isn't -- surprise! -- supporting Rs? Has the Supreme Court said my small business can opt out of the NFIB's political spending while still getting its useful reports? Hell, no.
DeleteI don't care how fungible money is. If Union Member pays $X in dues, and non-member pays $X - $Y, with $Y representing the amount the union spends on non-collective bargaining activity, what you have in the non-member is someone paying for collective bargaining the union provides.
Forty-one years ago, that made perfect legal, logical and constitutional sense to the Supreme Court. The main difference today is that the court has four justices who were appointed by people elected president without getting a majority of votes. All voted to scrap stare decisis in favor of what big money wants. Great justices!
I think there is something sort of asymmetric about the court. Here is what I mean: I perceive the liberal bloc as coordinating their efforts to build a more just society (as they understand justice). That's my strictly amateur perception of the "golden thread" that ties their jurisprudence together.
ReplyDelete*But* - I don't believe that the conservatives on the court are out to make a more unjust society. I don't think the two blocs are reflexive images of one another in that way. I believe the golden thread for conservatives is: they also support a more just society (as they understand justice - and their understanding isn't the same as a liberal understanding), but they don't see it as their jobs to unilaterally decree the legal conditions for a more just society. They believe the executive and, especially, the legislative branch have powers delegated to them by the Constitution, and they don't wish to usurp those powers. They also believe that not all power should reside with the federal government at all; some belongs to states, and some to private individuals.
To a conservative person like me, Ginsburg, Sotomayor et al come across as would-be benevolent dictators, using their powers wisely (or foolishly) to reorder society.
I don't know whether framing the issue this way makes liberals less prone to despair over Kennedy's retirement. Liberals have a tendency to analyze situations in terms of power; I guess they are post-moderns in that respect. This is one of the reasons that the conservative justices are so confounding to liberals: they have it within their hands to do vast, sweeping things, but they frequently decline to do so.
I believe that both same sex marriage and abortion are broadly acceptable in the United States, and if some future conservative-dominated court decided that the currently-prevailing unilateral imposition of uniform rules regarding both of these contentious issues needs to be struck down, the outcome will not be a return to the days when those things were uniformly prohibited, but rather an opportunity for states, and perhaps the federal government, to establish what is permitted and what isn't via the legislative process. I suppose that there will be bible belt states that would try to completely ban both of them. That means that proponents of same sex marriage and abortion would have to work hard to change those states' laws. Hard work and conflict are part of republican democracy. It's our system of government, for good or ill.
Jim, I doubt that Rep. John Lewis or Mary Kay Henry see the Supreme Court taxonomy the way you do.
DeleteJim, I believe you are right that both the liberal and conservative wings of the court see themselves as being in support of a just society. But the days when either of them believed in a strict separation of powers are in the past. For that matter, the president and the houses of Congress don't believe in them much either; and it's been that way for quite a while. That's part of the problem. I know quite a few Trump voters who were not actually voting for him. They were voting for conservative SCOTUS appointments. Somehow we need to find our way back to the three branches, and separation of powers.
DeleteKatherine, In 1832 the good white folks of Georgia were busily driving Indians off their land. The Supreme Court of the United States said, "Cut that out." The president, Andrew Jackson, allegedly said, "John Marshall has made his decision; now let him enforce it." (Whether Jackson ever said it is in dispute, but he acted as if he did.) The result was the Trail of Tears as Georgia's native Americans walked to new lands in Oklahoma. Very tragic story. Not usually taught in school. Anyhow, the executive and judicial branches were overreaching themselves way back in 1832, and while it hasn't gotten better, it hasn't gotten much worse. The good white folks of Georgia now look to get their land back again from other Georgians. Probably will, the way things are going.
DeleteTom, I read about the Trail of Tears. Yes very tragic. And I never heard about it in school. But I fid hear about the Cheyenne Autumn. Also not in school. I remember the day as a child when I was walking with my grandmother. She took me to the top of a hill on our land, and pointed to the place, about three miles distant, where Little Wolf's band of the Northern Cheyenne had crossed the river, on their journey fleeing the US cavalry. Grandma was in sympathy with the Cheyenne, and spoke of how unjustly they had been treated. But it wasn't until much later that I read of the whole violent and ugly story.
DeleteI should have realized I was lecturing you on your backyard.
DeleteWell, Georgia isn't my backyard. But it's a truism that history is written by the victors. There's always more to the story.
DeleteAnybody read Howard Zinn's "A People's History of the United State"? I plan to. Any reviews?
DeleteI haven't read it, but it got good reviews on Amazon. I'll have to see if our library has it.
DeleteYour statement about history written by the victors reminded me of Zinn's book. He writes for the others.
DeleteIt is highly likely that the supreme court nominee will be vetted on anti -abortion criteria. To what extent will it be banned. Partial birth only? All last trimester? All trimester? Will they calibrate to avoid a political backlash? Americans like to have options except maybe for political choice. An option is being taken away. Will they miss it? Will abortion inducing drugs become a new source if revenue for criminals? Lots of questions regarding abortions. Not in regards to workers' rights, though. Get practiced in using the term "marster".
ReplyDeleteAs usual, that issue is going to breathe all the oxygen. I am beginning to view it like nuclear weapons. They are here, it would be better if they weren't. The Pope wants them to go away, a lot of thinking Christians want them to go away. But that isn't going to happen any time soon. For now the most effective opposition to both nukes and abortion is to try to mitigate the conditions under which they would be seen as a solution.
DeleteAnd you are right that issues such as workers rights are flying under the radar.
Btw, lots of speculation that Trump will nominate a woman. I've seen this candidate's name mentioned.
ReplyDeletehttps://www.bloomberg.com/view/articles/2018-06-28/amy-coney-barrett-should-replace-kennedy-on-supreme-court?utm_content=view&utm_campaign=socialflow-organic&cmpid%3D=socialflow-twitter-view&utm_medium=social&utm_source=twitter
The court has three women. On the biggies they are usually in the minority. That may tell you something. If Trump appoints a woman, she will vote like a man and be in the majority. That tells you something, too.
DeleteKristin Gillibrand was on TV tonight. I would like to take her screechy rhetoric and that of Right to Life, frappe it in a blender, and pour the whole idiotic sludge I to a sink hole.
ReplyDeleteSpent Tuesday night on the porch with a couple of childhood friends, both cradle Catholics, pondering whether the SCOTUS changes mean the demise of Roe (probably not) or the end of abortion (not if states can still set their own laws). If my friends are any indication, Catholic women are very aware of what I think of as "grey areas," and I was a bit surprised by the number of their examples and how many women in our neighborhood had been faced with terrible choices that I had never known about.
It wasn't a pro-life or pro-choice conversation. Just an acknowledgement of how sad life can be when there are no good choices, and how women who have to deal with it get lost in the screaming from both sides of the issue.
Yeah, I am sick of all the screechy rhetoric on both sides of the divide. I don't have the figures to back it up, but I'm betting that at least 99% of the decisions faced by SCOTUS have nothing to do with abortion. So we (as a nation) are ill served by fighting a proxy war over it. And I really hope the Ds don't pick somebody like Gillebrand who would just (further) polarize people.
Delete"pondering whether the SCOTUS changes mean the demise of Roe (probably not)"
DeleteI don't know whether or not this column is accessible to folks; it might be behind a subscriber wall. The author, Steve Chapman, is a conservative with libertarian leanings. His thesis is (1) With Kennedy leaving and Trump presumably nominating a 'reliable' conservative to replace him, John Roberts becomes the swing vote; and (2) Roberts can't be predicted with certainty to wish to dismantle Roe.
On the dismantle-Roe side of the ledger, Roberts had written a brief (prior to becoming a justice) saying he thought it was bad law.
In the don't-dismantle Roe column, there is the fact that he has twice declined to invalidate ObamaCare, which is pretty solid evidence that he's not motivated solely by partisan considerations.
As Chapman sees it, Roberts brings a conservative and modest temperament to adjudicating, which means, among other things, that he's reluctant to override precedent and also reluctant for his court to issue decisions that unleash political and cultural earthquakes.
Here is Chapman:
"It’s fair to assume that Roberts thinks Roe was a mistake. But discarding it would mean overturning multiple precedents, not just one, because the court has repeatedly reaffirmed and built on the original decision. And it would mean dismantling not a recent piece of legislation — as with Obamacare – but a 45-year-old constitutional right that, according to Gallup, most Americans do not want the court to revoke.
"A “modest judge,” as Roberts described himself in his confirmation hearings, would see compelling reasons to leave Roe in place. Reversing it would engulf the court in more intense controversy than it has faced in decades."
Here is the Chapman column: http://www.chicagotribune.com/news/opinion/chapman/ct-perspec-chapman-kennedy-court-abortion-roe-20180627-story.html
It's also possible that Roberts could work with other conservatives on the court to chip away at Roe bit by bit rather than detonate it all at once.
I disagree a little with Chapman. Roberts has overturned precedents with ease. The union fee case this week reverses a 40-year-old decision. Brown v. Board of Education became dead law in another ruling. There have been decisions on evidence that reversed the work of Hugo Black, and the Chief has been aboard for all of them. So, no, stare decisis isn't what cuts it with these guys.
DeleteBut I can't see them flat out reversing Roe the way the Brown did to Plessy v. Ferguson. We CAN expect them to buy some of the cockamamie state laws that limit abortions on spurious grounds. They'll simply pretend t0 believe what the law actually says and not what the sponsors said it means when they passed it. They will do that.
But they will do lots and lots of bad things. I think it is a crying shame that NARAL has convinced the brain dead Ds and the easily convinced media that the next appointment is all about abortion. Trump thinks it is all about Trump. The media thinks it is all about abortion. I think it is all about power to the wealthy. I am right.
Roe: All the Court need do is return to the original Roe language. What Roe said and what proponents claims it says have diverged over the years in the direction of less restrictive. Subsequent Court decisions did some of that, but the political/lobbying pr did more. Many people believe there is an absolute/unrestricted right for a woman to have an abortion. That is not what Roe said.
DeleteOf course, a return to the original language and restrictions is not going to resolve the issue for some people. On the other hand, a complete reversal without state remedies is going to make abortion illegal again with at least some of the consequences that brought on Roe in the first place.
Either way, abortions will continue, legally or illeagally, safely or injuriously.
Tom is right. Abortion is smoke obscuration. Trump turned out to be the best thing for wealth concentration. Who could guess?
DeleteTom, I think you are right. One of the reasons I find Hillebrand so depressing is that she thinks this appointment is a women's "health" issue. She seems unaware of other issues.
DeleteFour of the short list possibilities are women.
https://www.politico.com/story/2018/06/27/anthony-kennedy-replacements-supreme-court-trump-679941
Jean: Gillibrand (NY.-Dem.) was once a dumb conservative; now she's a dumb liberal. Some people never learn.
DeleteGillibrand. Yes. Why can't I get her name right? Maybe conflating her with Hillary ...
DeleteYes. There was a conflation. She was appointed to the NY Senate seat when Clinton resigned in 2009 to become Secretary of State. Sillybrand ran and was elected on her own in 2010.
DeleteToday's Times has a story that strongly suggests Kennedy was cajoled into resigning.
ReplyDeletehttps://www.nytimes.com/2018/06/28/us/politics/trump-anthony-kennedy-retirement.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news
Interesting about Kennedy's son and Trump having had business dealings in the past. And I had read before about Ivanka and daughter being guests at the Supreme court a couple of weeks ago. Nothing wrong with that, but just kind of proves there are some insider ties. I suppose that is inevitable.
DeleteBusiness dealings through Deutsch Bank where the younger Kennedy worked! (The Bank has somehow, sometime been mentioned during the Russian investigation.)
DeleteI remind myself that all of these Conservative Justices are or were Catholic. Do they ever recall their grandparents or great-grandparents slaving away in mines, laundries, ditches, factories, without decent wages, holidays, health care, pensions, etc., that unions finally won for them?
ReplyDeleteI once wrote an article about them...how could I have been so benign?
Maybe the stories aren't being passed down. Maybe they're not listened to. I'm aware of my lineage from steel workers and before that, farmers. My father was a shop steward in the steel mill. My mother worked in factories. When I got a winter coat from the factory outlet, it was a factory my mother worked in. I don't know how all that is forgotten. Maybe it was the 60's and 70's, the age of aquarius banishing the past.
DeleteI do think it's true that my generation, and certainly my kids' generation, doesn't see connections between Catholicism and unions (I was going to write "the union movement", but I don't think such a movement exists in the US).
DeleteOne reason is that many of the most dangerous and exploitative jobs have been offshored. Maybe Catholics in India, China, Malaysia and Eastern Europe are learning about worker rights and human dignity.
Another reason is that unions have a terrible reputation in the US. Union jobs are viewed as sinecures of privelege more so than as pathways to justice and prosperity. If you want a safe and high-paying job in the US, the common advice isn't, Join a union, but rather, Go to college.
Unions come across as another special interest, working against the interest of the common man and woman. Many Americans, at least where I live, have had negative experiences dealing with government employees - lack of responsiveness, rudeness, inconvenient hours of operation, etc. In my state, we can add on top of all of the above that public sector unions are making the state go broke - actually, made it go broke a long time ago; now we're just digging the hole deeper. That may not be an entirely fair perception but there is an element of truth to it; people are not dumb.
There are sectors of the labor market that badly need help and that would benefit by organizing. There are exploited workers in today's American workforce, but they tend to be jobs worked by women and people of color. I happen to think some of those job categories would be well-served by unionizing - I'm thinking in particular of the office buildings filled with customer service call center workers. Those workers do critical work for their employers, they're not paid very much, and in some cases they're treated poorly. So why don't they unionize? Perhaps at least part of the reason is that the legal landscape is tilted against unionization. But part of it is that these workers just don't perceive unionization as something that can help them. It's not that they're trying to unionize but are being thwarted; it's that they don't even try. Personally, I think it's rooted in a lack of solidarity.
Then, too, a lot of the jobs being filled by low-paid workers these days are small business jobs that traditionally haven't fit the classic union template very well. Strip malls are taking our economy to full employment. If employees of a Chipotle or a Hair Cuttery organized and went on strike, nobody would care; the consumers would just drive through Burger King or over to Great Clips.
Deacon Jim, I am sure that a Chicago boy like you has at least heard of Studs Terkel. And this is one of his favorite stories:
DeleteIt's about bout a young couple he would encounter daily at a Chicago bus stop. The man was all Brooks Brothers and Wall Street Journal, the woman Neiman Marcus and Vanity Fair. One day, in full gadfly mode, Terkel remarked: "Labor Day is coming up." Coolly, the well-dressed, obviously well-heeled man replied, "We despise unions," and he looked at Terkel "as Noel Coward might have looked upon a tiny bug he was flicking off the sleeve of his tailor-made shirt cuff." Terkel decided to strike deeper: "How many hours a day do you work?" he asked.
"Eight," the man replied.
"How come you don't work 14 hours a day? Your great-great-grandparents did. How come you only work the eight-hour day? Four guys got hanged fighting for the eight-hour day for you."
Tom, yes, I feel I knew Studs - listened to his radio show on WFMT for quite a long time, and have read at least one of his books "The Good War". That definitely sounds like one of his anecdotes.
DeleteI guess my point in this is that there is a bit of a generation gap. The kids don't know Studs, and don't see the need for unions.
One sector that needs unionization are the health workers, now that profit takers have bought up the hospitals. I hear stories how they're working harder, stretched thinner, in a vocation that us already physically and mentally taxing. Now that the doctors are becoming employed providers, I've heard stories of their starting to be pushed around. I imagine that when these hospital acquisitions are made, there are leveraging loans to be paid off. The payback has to come from somewhere. The blood, sweat and tears of the workers should do it.
DeleteWell, Jim, the reason unions are making the state go broke, as you claim is because nonunion taxpayers don't earn enough to support a unionized workforce and attendant benefits and pensions. They've been screwed and scared out of their unions. They've been told they don't need unions. Unions were just told by SCOTUS that they can't charge for their services, i.e., collective bargaining on behalf of employees who are ideologically opposed to being paid a fair wage.
DeleteThe kids don't know about unions because their history classes don't cover them. The kids seem to have the idea that the "labor movement" fixed unfair labor practices and the bosses play nice now.
I recommend folks check out this group, founded by Barbara Ehrenreich after writing "Nickel and Dimed." Nice collection of neo-Wobblies and good writers/reporters. Studs is likely their patron saint. They got a nice chunk of my inheritance. http://economichardship.org
From "America":
ReplyDeletehttps://www.americamagazine.org/politics-society/2018/06/28/former-clerk-assesses-legacy-justice-anthony-kennedy-constitutional?utm_medium=email&utm_source=newsletters&utm_content=3+-+Read+the+full+story&utm_campaign=Newsletter&source=Newsletter
A former clerk assesses the legacy of Justice Anthony Kennedy, a ‘constitutional romantic’
All the Froth and Tizzy about a new justice:
ReplyDeleteRoe v. Wade may or may not be reversed. Won't make any difference one way or the other.
Except for those pro-lifers who believe the Trump's Republican party is part of the Second Coming.
(That may be, because eventually North Korea will threaten to send us a missal and Trump will beat them to the button.)