The justices of the U.S. Supreme Court gather for a group portrait in the East Conference Room at the Supreme Court Building in Washington, October 8, 2010. Seated from left to right in front row are: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy, Associate Justice Ruth Bader Ginsburg. Standing from left to right in back row are: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr., and Associate Justice Elena Kagan. REUTERS/Larry Downing (UNITED STATES – Tags: POLITICS CRIME LAW) – RTXT6Z5
Who understands what the Supreme Court is up to? I’ll be the first to admit I don’t. LOL.
So, me being me, I decided that in this week’s Only On Fridays LIVE we would delve into the recent history of the Supreme Court decisions from the view of what will change (or not change) if a Liberal Presidency gets put in 2017? Is it really a bad thing? What can we tell from the past as we look to the future? Interesting questions I think … definitely worth pondering.
Look forward to seeing you on the stream (or the replay). For those that forgot, the stream starts at 8 p.m. CST on Fridays and run for as long as we think we’re funny.
**** PRE-STREAM NOTES ***
— Last liberal (activist) court was the Warren Court. 1953-1969. Key decisions were on civil rights, civil liberties, judicial power, and federal power. Ended — racial segregation, prayer in schools, voting redistricting, etc. Height of judical power.
— Nixon, 1969 to 1974 appointed 4 conservative judges starting the current 45 year run of a conservative court
— Is it a coincidence that our shift of wealth in last 45 years (from middle class to upper class) is tied to the current conservative court run?
— Core difference in appointments (or one aspect) is how the constitution is read based on the view of the original writers … when slavery and other aspects were legal … or as a living document that should be viewed in context with what is going on and what has been done since it was written. Is one candidate more biased to a style of reading?
Points to Ponder
— Is it valid to worry so much (as a liberal or conservative) on a shift of majority? How often is a supreme court decision setting an irreversible tone/stance?
— In our gridlocked system, might the reemergence of ‘judicial power’ be a path forward (a 3rd force basically)?
— Who knows what a conservative versus liberal appointment means?
— Is Clinton really a bigger risk to shifting away from “Originalism”? Is that really what a conservative court represents? What would have to be reversed if you applied this philosophy?
Cases Talked About (I read about)
— United States v Texas (2016). Challenge to Obama executive order Deferred Actions for Parents of Americas (DAPA). Basically delaying deportation of illegal immigrants if parents. Question was overreach of president power. Conservative court said yes. Stopped OBama. Theory is a liberal court would have allowed it. I would question if really this is a question of executive power … or a specific application of it. In reality both parties will leverage executive powers for their bias. So a specific case on a specific application is less concerning.
— Michigan vs. EPA (2015). Question was if the EPA’s interpretation of regulation for power plans considered cost and benefit enough (and stopping if payback wasn’t there). No was the answer. Scalia was swing vote. EPA showed it did exhaustive cost /benefit analysis just not in the first phase — however the court felt it was too little to late. Strange. As long as cost/benefit is done before action … what is the problem with doing it in a later stage? Regardless, not a case that warrants worry on appointment as the supreme courts decision can be reversed by congress (change the law; changes the regulations).
— Burwell v Hobby Lobby Stores, Inc. (2014). Allow private companies to be exempt (or claim exemption) based on religious beliefs if there is a better way to achieve the goal of legislation. In this case it was requiring inclusion of birth control in benefits. Conservative Court said it was fair if better way existed. The point on this case is it was very well-known … but its impact is very narrow. So are we overreacting to a flip-flop on this issue?
— Citizens United Federal Election COmmission (2010). No need to beat this horse. The back story is interesting. Citizen United was a not-for-profit that wanted to air a critical film on Hillary. This was against the 2002 Bipartisan Campaign Reform Act (McCain / Feingold; 2002). Supreme Court reversed the district court decision to ban them based on 2002 legislation. Said unions and corporations can spend around elections. This plus PAC law allowed unknown entities to heavily spend in US Politics. Strange, but it’s not clear what a liberal or conservative court would do. Strongly not liked by public. To be honest I haven’t seen the massive shift I thought we would see when it was passed. Maybe its fine (get rid of dark money though). Either way I think this decision is flipped either way (moot for decisions).
— District of Columbia v Heller (2008). There was a ban of hand guns in District of Columbia and not in homes if not disabled. Conservative court said No Go. Working guns should be allowed in the home. This was just the banning of most extreme gun regulation (allow working in home). Not sure if a liberal court would overturn it rather look for more niche groups to restrict gun ownership. Isn’t this good government … a slow oscillation to the right answer? We banned all of it in homes. Reversed. No we look at a subset of that. Seems to make sense. Would a liberal switch to create this oscillation back a little be that bad?
— Rapanos v United States (2006). Debate of federal jurisdiction on water (how far back into wetlands, etc. does it go). Kennedy split tie. No, Feds were overstepping bounds. But is it a key worry if it had gone the other way (liberal court). Not really, any court decision here can be weakened by Congress or the president (directing the EPA on how to act).
— Gonzales v. Carhart (2003). Partial Birth Abortion Ban upheld by conservatives. Conservatives created an exception where abortion is illegal. Liberal court would probably overturn it but it’s really a small % of overall abortions. This one would be an example of an impact on shift.
— Redistricting (70’s ~). Insuring similar amount of voters in each district. Was winning in lower courts. And held for some time but lately (last 10 years) there was pressure on this case precedent. In 2013 (Shelby County v Holder) nullified the formula used to ensure the size of a district should equal all residents (not eligible voters) risking transfer of power to urban areas away from cities (low voter registration). Virginia has a pending case where it is being sued for putting basically all its black voters in one district. LOL. Good luck winning that in a liberal court.
— School Desegration (70’s ~). Fund public schools equally not based on local tax base (rich shouldn’t have different access to education). Was winning in lower courts. Conservative court removed (San Antonio Independent School District v. Rodgriguez) requirement that Texas fund school districts equally. Conservative court stopped this. Now schools are more segregated than they were in 1970.
— Labor Union Recognition (70’s ~). Employers have to recognize on basis of cards from majority of employees vs stalling for time by not recognizing this quick vote so to undermine the majority (and flip it). Conservative court didn’t press lower courts that didn’t enforce 1969 decision requiring quick recognition of a unionization request. Passive resistance basically. Liberal court could act to enforce this and enable unionization to occur (if there is a pent-up demand for it).
— Sex Discrimination (70’s ~; womans rights). Pregnancy as a disability that needs to be covered. District courts agreed.
— Abortion (70’s). Conservative court upheld Roe v. Wade but based it on privacy instead of equality exposing it to later narrowing of powers via legislation (abortion not covered by medicare, etc.). A liberal court could very well redefine this based on sexual discrimination (woman’s rights on her body being trump card) giving a strong pro-choice law foundation.
— How a Hillary Clinton Presidency Would Effect the Supreme Court (The Atlantic). http://www.theatlantic.com/politics/archive/2016/10/how-a-hillary-clinton-presidency-would-affect-the-supreme-court/501539/
— Definition of Originalism (Implied Bias of a Conservative Court; Clarence Thomas, Scalia). https://en.wikipedia.org/wiki/Originalism. In short, apply the constitution based on the perspective of those living when it was written.
— After 45 Years of a Conservative Court, here is what a Liberal Court would do (Washington Post) https://www.washingtonpost.com/opinions/after-45-years-of-conservative-rulings-heres-what-a-liberal-supreme-court-would-do/2016/02/19/efa63ad4-d589-11e5-b195-2e29a4e13425_story.html?utm_term=.6618d917e01a
— Warren Court. Last liberal court (1953-1969). https://en.wikipedia.org/wiki/Warren_Court
— Prior article on OOF regarding Supreme Court Bias. https://onlyonfridays.wordpress.com/2012/04/06/the-plans-of-mice-and-men/
–Perils of Eroded Civic Knowledge Forewarned by Former Justice Souter. Good discussion of what civic duty is to understanding how politics work.
— The Supreme Court is a Winning Issue for Trump. The link below points out how judicial conservatism would mean, in purist form: rollback of marriage equality (LGBT; based on liberal read of due process); allowing states to ban contraception AND abortion (same basis); numerous civil rights, environment, and federal laws (commerce clause); end of “right to remain silent” as well. Relative to Due Process, the Supreme Court of the United States interprets the Clauses as providing four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights. The Commerce Clause gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”. Interesting how fuzzy the law it considering how dense (wordy) it is at the same time.