Legalities

In Hawaii this week, Justice Stevens said about the Court's protection of civil liberties: "I would not think doom is around the corner or anything like that."

Kind of like the title of this post.

Outstanding objective analysis. What Jan notes well (on both sides of the aisle) is how the love of debate of the law has been exchanged for party hackism. I've read in other disciplines this trend in America from a bell-curve (mostly moderation with some extremists) to a "well-curve" (many noisy extremists and few moderates in the middle). Perhaps this is just misperception on our part. But the squeaky wheels seem to be not only getting the grease but also the columns in our newspapers. This newspapers I can handle, but when the leaders of prestigious law associations come off like lobbyists, that's when I worry the sky is falling. All Americans need to fall in love with our Constitution again and be happy when it scales weigh out its proper justice -- regardless of whether the scale tips toward our end or not.

I'm ready for emotism to get to the back of the bus. The previous post is a good example ("blantant self-interest") It's not blantant to me, nor does saying so prove anything. But I guess you have to still believe in truth, in proofs, and absolutes for that to make a difference.

Prof. Stone is said to have "repeatedly slammed the new Roberts Court for caring only about rich people, white people and corporations." That about says it all there. The conservatives don't care about the rich or whites. It's not their job to "care" about anybody. They just need to enforce--literally enforce, doing as little "interpreting" as possible"--the law. Congress and the States can tweak the law or write new laws if they think things aren't right.

There's an obvious reason conservatives are playing down what is, as Ms Greenburg admits, a fairly sharp turn right. It's because some of these issues are both highly emotive, and therefore likely to energize the democrats, and in broad terms do very little to serve the commmon good. Did it really serve any purpose to open up the racial discrimination wound? Was making it more difficult for women to obtain equal pay really a legal principle to be defended to the death in 2007. In fact Ms Greenburg seems to want to have it both ways. Yes there was a sharp right turn, but why are democrats getting excited about it. I think she's going to find out when these issues are re-argued yet again on the campaign trail. It's hard to believe either is going to redound to the benefit of the GOP.

Yes,, but we're all (both sides) looking to the future, and we're looking with a wary eye.

I'm a social conservative and I think I'm a fairly typical one. I agree with you entirely that, "There’s no question that the Court ended its term pointed in a more conservative direction with the addition of Justice Alito for O’Connor." But the key word to me is "pointed". The Court is pointed that way but it hasn't gone very far in that direction, and the big concern is that it won't go much farther that way as it now sits.

Relief is a way to look at it. There is relief that the bleeding has stopped with the addition of Alito for O'Connor, but also there is worry that the current Court will not be able to do much to heal the damage that the old Court did.

We now know beyond any reasonable doubt the Justice Kennedy is going to continue being Justice Kennedy and so Roe won't be overturned and there will continue to be problems with his votes on marriage and on religious expression and likely other issues too.

And then on top of that, social conservatives are worried about 2008. If they get their candiate elected, then things finally (after roughly fifty years of trying) will move all the way in the direction they want. But if Hillary gets elected, things will start moving back the other way, and if Giuliani would get the nomination and win, he would keep things about where they are without moving them forward.

Maureen Mahoney is a spokesperson for Giuliani's team on judicial matters. She's widely viewed by social conservatives as "another O'Connor". She says she has come out in support of Giuliani over the other Republican candidates. That should speak very clearly to social conservatives. It's now highly likely Giuliani would nominate Mahoney to the Supreme Court. Social conservatives would consider that a disaster.

So, all in all things are precarious (again, for both sides). There's really no reason for social conservatives to be excited over the present state of things, only relieved that they aren't worse and could yet get better.

The depth of many prominent Democrats' contempt for the people they want to vote for them is revealed by the way they repeatedly publish these base, emotive rants, which on a rational level are, as you point out, simply indefensible.

it is very revealing that liberal law professors talk about the poor or white or rich. it reveals a total lack of regard for the tradition of law in america that had disappeared with liberal justices. finally, the courts are adjudicating cases based on their merit and NOT ON THEIR OWN PERCEIVED NOTION OF SOCIAL JUSTICE. the statue over the supreme court with the blindfold over her eyes means something very important to the american people. JUSTICE IS BLIND. once again, we can begin to say that this is true. let's pray that we continue that trend.

Certainly the Court turned right, but I don't think there's any real reason to believe it has become conservative. As long as Anthony Kennedy roams the "judicial center" looking for editorial praise, the Court will remain bogged down in fractured opinions lacking true Constitutional clarity.

The Louisville opinion issued in June perfectly illustrates why conservative clarity, or at least my hope for it, is still elusive. While Kennedy said in one breath that race could not be a sole factor for assignment he said in another breath that race could be a compelling factor. To me, that's a distinction without a difference.

Unless or until another vacancy occurs, legal interpretations will remain muddled. From a pilot's perspective, the Court made a standard rate turn 20 degrees to the right while conservatives hoped it would make a steep turn 90 degrees to the right.

Good evening,

It's good to haer a voice of reason from the networks. May your tribe increase.

MSA

Jan, you are such a breath of fresh air and a voice of common sense to contrast with the hysteria of the Left and the lies of the likes of Linda Greenhouse.

As an example of what everyone seems to have forgotten, let's take the partial birth abortion ruling. All the SCOTUS said was that it was within the province of Congress to make such a law restricting the procedure, NOT that such a procedure is illegal. The Court can't do that, and the Left knows it.

Problem for them is that now they're in control of Congress and they seem to be really reluctant to repeal the law. I love vermin like Harry Reid complaining about it: how dare the Court upheld a law I voted for!

I am amazed such a fair and balanced analysis
is provided by a US TV Network.

The court has moved back to the center. Period. Left wing nuts like Adam Cohen can rant all they want. They are just peddling lies. That, apparently,l is their job.

It's all part of the "If we don't win we don't eat!" mentality of liberals in this country, I'm afraid. Opposition in any measurable degree invokes a knee-jerk, emotional reaction in the liberal establishment. It's how they've learned to argue their case, I'm afraid: "Scream really loud, drown out the other side, and when the public gets tired enough of listening to our tantrums they'll let us have our way."

Sadly, that works all too often.

Sure hope you got a long term contract with ABC News [assuming you want one]. When your editors realize what you've written -- an objective, nonpartisan analysis of difficult cases involving contentious legal issues -- they probably will wonder how they let you get hired in the first place and then they'll wonder how they can get out of the newsroom ASAP and send you on your way to FOX. No matter, you go girl!!!

Jan, please continue this kind of honest analysis. There is no value that can be placed upon it.

By the way, I was introduced to your work by your book. I bought copies for everyone I could think of. Excellent!

Well, that does it. I am bookmarking this site for future reading. A refreshingly rational commentary. My compliments.

Just a trivial point on the World Wrestling Federation. If my memory serves, the change from 'Federation' to 'Entertainment' was made in response to legal action from the other famous WWF - the World Wildlife Fund.

Thanks again for the post, Ms. Greenburg. Your writing always helps in making sense of the Court.

Joe (7/22/07 at 5:15:53PM):

Maureen Mahoney's inclusion in Giuliani's legal advisory committee suggests none of the things you say. They are longtime friends and colleagues - why then wouldn't she support him? You fail to mention that also on the list are various conservative legal giants and Federalist Society members, such as Ted Olson, Miguel Estrada, Larry Thompson, Steven Calabresi, Charles Fried, Doug Cox, and George Priest, to name just a few. That's an awesome list, and these are luminaries of the conservative legal movement. Giuliani is as likely or more likely to nominate Estrada to SCOTUS. Mahoney would work out just fine as solicitor general.

Now if Stevens and Ginsburg could retire this year it will be fantastic.

Geoff Stone's odious remarks to the effect that Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito vote as they do because they are Roman Catholic hearken back to the whispering campaign against John F. Kennedy in the American south circa 1960. Mr. Stone deserves to be shunned by all decent people.

The court didn't go right, it went to the center. The majority of Americans support these recent decisions. Also, diversity is not always good. Sometimes it is outright sinister - see Iraq.

When the Supreme Court construes a federal statute, Congress bears resposibility for the outcome, either by what it said intentionally or either knowingly or carelessly left ambiguous, and it can change the result at least for future cases by a simple amendment. You correctly pointed this out, but how often do yo see this pointed out in news media accounts, much less in political screeds, related to the case? As you correctly pointed out, three of the four incumbent justices appointed by Democrats or otherwise regardes as "liberal" joined the majority, leaving only one dissent, in the high speed chase and ramming case cited. Given the reach of federal law approved by the courts since 1941, I suspect that a federal law restricting such actions by state and local authorities might well be upheld. Of course, the proper remedy would be for the state legislatures to respond, debate the issue, and pass or decide not to pass a state law on the subject. There was no push to pass state laws restricing the jailing of people charged only with minor offenses not carrying jail time as a penalyt after the widely-criticized Supreme Court opinion upholding state laws permitting that before trial. The recent case construing a statute of limitations, which you note was cited for the theory that Republican justices don't care about individuals, could also have been or be changed by statute.

News coverage of court cases, bills and new laws, etc., is typically woefully shallow, biased, and uninformative.

Most of the editorializing about Roberts' Court of Appeals opinion about the juvenile taken into custody ofr minor violations on a D.C. transit bus, at the time of his Supreme Court confirmation hearings, omitted his criticism of the action at the same time he, and another justice, held that it did not violate either the Constitution or D.C. law which could be amended more easily, as previously construed in other precedential cases, either because the writers and Senators had not actually read his opinion, readily available on line and in print, or because they didn't want to mention that inconvenient fact.

More pundits weighed in immediately on an early federal court decision dealing with Texas' sodomy law, much later struck down in Lawrence v. Texas, than the total number of copies of that 52 page opinion provided by the court, and, like certain book reports in school, you couldn't prove from these that their authors had ever actually read the opinion. One writer told the judge, who had never run for elective office, "I will never vote for you again!," prompting some of us lawyers to propose a "Keep Judge Buchmeyer" fund-raiser at a great hamburger place everybody patronized on the edge of a heavily "gay" enclave. A leading newscaster once asked me where the jury box was when covering an argument in the Court of Appeals.

Congress also has explicit authority, under Paragraph 5 of the Fourteenth Amendment, to pass legislation to protect rights against states and subordinate entities to due process and equal protection of the law. Since the Fourteenth Amendment obviously was adopted after the Eleventh, it clearly should control, but we are still having arguments in the courts over that wiht regard to the Americans with Disabilities Act and other civbil rights laws passed pursuant to U. S. CONST. AMEND. XIV Par. 5. I think the Supreme Court should revisit some of its earlier restrictive decisions, but the solution is the "ADA Original Intent Restoration Bill" promised by House leader Steny Hoyer, an original Democratic lead sponsor of the original bill, and pushed by some of its Republican supporters. Although they published their intent to pass such an Original Intent Restoration Bill this session, I have yet to see it even introduced.

Ever since I started reading Supreme Court opinions in college fifty years ago, the same thing has frustrated me whether they were given by liberal or conservative justices: too often, the majority and dissent sound like they were deciding entirely dfifferent cases, and both sometimes lose sight of the factual and legal realities of the actual case before them in their desire to find a vehicle to do or say something they have wanted to do or say.

Jan:
Well done. Its extremely refreshing to hear an impartial educated voice that can give good analysis with issues such as these. Why is it when the court was listing left for decades everything was fine and now the sky is falling? Just one of many liberal double standards that can't be explained with the democratic fairness meter. Liberals stop crying!

Mike

Response to Matthew Friendly above:

The main reason Giuliani likely will nominate Maureen Mahoney to the Supreme Court is that she is a woman. None of the other names you mentioned on Giuliani's judiciary advisory committee are women. The general consensus is the next Nominee will be a woman. As Jan reported here on her blog a few weeks ago, ***Bush's current top five list for the next Supreme Court nominee are all women.*** And as Jan has said, Mahoney is not on Bush's current list because Mahoney would "upset" social conservatives.

Another significant reason Giuliani likely will nominate Mahoney is that she would meet his criteria as a "strict constructionist" (a vague and general term that can be stretched to include Justices Kennedy and O'Connor) but yet she would be one of those who would not overturn precedent and would not overturn Roe. Roe is very important to Giuliani.

It is refreshing to see a factual account of the cases and votes of the justices and a more objective analysis of the court's term as compared to, for example, Adam Cohen's tripe which disgraces legal journalism. Greenberg reveals just how grossly misleading Cohen is. (example: his misleading readers by slamming Roberts and Alito for the holding in the tobacco case without mentioning that the liberal Breyer wrote the opiniion and his like misleading of readers on the cop car chase by omitting it was a 7 to 1 vote. It's hard to accept that simple-minded ideologues like Cohen, with his juvenile mind and vocablulary, get to keep on writing for the NYT.

This column shows that Ms. Greenburg is a strong proponent of a conservative judicial philosophy. People who complain about "the liberal media" need to read more of Greenburg's work.

It's a little disingenuous to imply that the Court only narrowed old rulings. Most reasonable observers would agree that the Court overruled settled precedent, but did so without announcing it. Then the conservative pundits--such as Ms. Greenburg--could minimize the perception of the shift rightward shift by arguing that that most of the old precedents are still there. Let's be honest: they are there in name only.

"Plenty of other people—not just taxpayers—can challenge expenditures that violate the Establishment Clause—as building that evangelical church surely would."

Yes, but now it's substantially harder. If we don't want to interpret the law and only follow the Constitution, please show me the section of the Constitution that says that taxpayers don't have standing. It's a rule made by the Court and the conservatives made it harder for regular people to bring a case before the Court.

What's worse is that Roberts is not admitting that Flast is overturned. Not only is the Court turning to the far right, but it refuses to acknowledge the shift. Journalists do not promote democratic governance by hiding the law from people and trying to minimize the change like the conservative wing of the Court would like.

I question your integrity Ms. Greenburg.

The left seems worried that they are unable, with out the court, to convince the people, of the compelling nature of any of their positions. That seems to be the real reason for all the hysteria that is coming out of the left camp. It makes more sense to rely upon your own abilities to convince the public, rather than putting your faith in lawyers to 'find' a solution.
The left often takes a rather elitist view, in that the 'public', or blacks or minorities, are helpless with out thier leadership or the courts intervention.
It would be better, and more to the original intent of men who wrote the constitution, if Congress actually acted with conviction occasionally. Meaning both sides of the aisle...

"The left seems worried that they are unable, with out the court, to convince the people, of the compelling nature of any of their positions."

Local elected officials decided the Seattle school district plan. The Court took the decision of how to assign students to schools out of the hands of elected officials. The right only cares about what local elected officials, or legislatures, wants when the outcome suites them. If they really believed that people should govern themselves, then they would have let the program remain as it was designed by the people in Seattle.

"Anonymous" would have the Supreme Court defer to the judgment of local officials and the "decision of the people" in a fourteenth amendment equal protection case? Well, I guess that means that elected officials in my city can "decide" with public backing to impose a 10:00 p.m. curfew on black males under the age of 25 based on their reasoned statistical analysis showing that they are responsbile for 85% of crimes after dark, the restriction justified by the "compelling governmental interest" in public safety. If Anonymous proves anything, it's that liberals talk out of both sides of their mouth when it comes to the rule of law. They want a malleable equal protection clause that bends to suit their social policy preferences. At oral argument in Brown v. Board of Education, Brown's counsel commenced the argument by stating the proposition Brown hoped would prevail with the court: that the 14th amendment absolutely forbids ANY use of skin color by the government for ANY reason in school assignments. That proposition won out, as it should have. In the Seattle Schools case, the court held to that very holding and for anonymous to argue otherwise is simply dishonest.

Well, yes, the sky is still up there, but I think what worries me is that it might not be up there much longer -- depending on the outcome of the 2008 election. Actually for one side or the other, it likely won't be up there much longer. So, to me, the big question is, on which side is the sky soon going to fall?

Anonymous, a ways up the tread, complained: "This column shows that Ms. Greenburg is a strong proponent of a conservative judicial philosophy". I found that curious because my take has often been that she leans left. Well, I guess that shows how the same pieces can be viewed in nearly opposite ways depending on the reader's perspective.

THIS COMMENT IS ABOUT THE LAW AND IMIGRATION:
I just wanna inform you a story I saw in my locl news. A mexican man was pulled over in a Suburb of Chicago for traffic violations. He was then held by the local police because he was not here legally and was undocumented. there was a small public out-cry by his family, some friends and other local people of the Mexican population demanding his relase because the police were going to contact the INS and have deportations proceddings started on him because of his illegal status. As it turned out, so far, he was relased for his traffic violations and no deportation has occured. The police blamed this due to the INS not getting back to them in time. I opinion to this is it's a travisty! My feeling is that he was relased due to public pressure and the local police shifted the blame in order to save face. he should have been deported because he broke the law, being here illegally! We should set a tone, as Americans, that if you break the law, and/or are here illegally, you will face punishment. Anyone who does anything illegal, get punished. From something as small as a traffic violation, on up to murder...you face consiquences from your actions. This specific sercumstance is no different. This person is breaking the law, and should be punished! I do not recieve any different treatment when I have broken the law, and neither should this person. I understand he has a family here as well as a job...(which is another story as he is hurting our economy, lowering wages, and taking jobs from others), but he knowingly risked all of that in order to sneek in to the U.S., not obtaining citizenship in a legal and proper mannor! We should shed light on these issues and situations that are happening all over the country. Unless you, as a reporter and news team, don't make these stories loud and public, they usually get swept under the rug, thus keeping the problem going. Please help law obiding Americans resolve this very important issue by making it as public as possible and informing the entire country of these hipocritical and unjust stories! Thank you, Christian 24 -Chicago, IL

I am so upset that much of the debate on legal matters is political. That includes many of the comments on this blog posting. The anonymous posting questioning Ms Greenburg's integrity worries me no end. This person complains that the Roberts Court had the gall to overturn precedent ("without announcing it"). What is wrong about overturning precedent if precedent is wrong?

More generally, what is wrong about a Supreme Court saying, "We rule that the lower court's decision is hereby overruled because they didn't follow the laws enacted by the respective legislatures"? The only complaints I hear is that conservative justices "took away rights" or "hurt people's interests" or "upended Brown" etc. In nearly all cases that liberals are complaining about, they are upset because the court's ruling didn't deliver the desired result. Well, wa-hey! Tough! Go back to your Congressman or Senator and fix the law. Don't expect a judge to say, "Well, the law says so-and-so, but this wouldn't be fair, so I rule that the law ought to have read yada-yada, so that's what I will pretend it says."

Anonymous wrote, "Local elected officials decided the Seattle school district plan. The Court took the decision of how to assign students to schools out of the hands of elected officials."

Ehm, no. That's not how the US Constitution sees it. Under that reasoning, if a majority of people voted for racial segregation or the legalization of revenge killings, to name but two examples, then the courts couldn't say anything about it. In Seattle, a number of parents (in the minority, apparently) complained that this democratic decision by the majority to use racial quotas in school entry assessment was UNCONSTITUTIONAL. The Court agreed that you cannot deny students access to a school SOLELY on the basis of race (which was Seattle's law). That is racism, so the Supreme Court banned the racial quotas. There is nothing bad or dangerous about the courts correcting that type of democractic decisions because the Constitution does not allow citizens to make that sort of decision. If you disagree with that view, your only option is to change the US Constitution so that it does give you that right. Don't shoot the messenger (the judge) who tells you that you've played a foul ball.

Michel van der Hoek wrote "Under that reasoning, if a majority of people voted for racial segregation or the legalization of revenge killings...then the courts couldn't say anything about it."

Exactly--and that's the point that was being made: "The right only cares about what local elected officials, or legislatures, want when the outcome suits them."

It's an interesting remark by Hoek, since if I remember correctly the right fought pretty hard to keep segregation legal in this country, calling it "states' rights".

rizzo, that is exactly what needs to happen in fact and does every day in the insurance idustry. everyone is characterized and stereotyped by the insurance companies as to how much of a risk they are , in any form of insurance they may purchase.

insurance is sold and priced the same way ,as a statistical risk , ie; less risk = less cost and more risk = more cost.

if someone,as a citizen looking to buy insurance, is a bigger statistical risk,or is at more risk , their premiums are more than some other person who is considered less of a "risk" by the insurer.

this is not alot different than the curfew scenarion you rizzo were alluding to. compared to the way insurance companies are allowed to bias their rates on supposed tendencies, i see no reason why a public majority instituted curfew on a group that is statistically proven to obviously and largely break the law is any different . there definitely should be concrete laws made that take care of that kind of problem and patently ignoring the obvious just because the numbers dont make your race or friends look too good isnt helping anyone.

thats not racist ,if accurate statistics said that white girls aged 12- 18 were doing 85% of the lawbreaking then SURE, they should be under said curfew themselves. then ,i would say , the incidence of this demographic committing said crimes would go down,which is the correct end result ,yes?

nothing racist about it, just stupid to overlook accurate statistics on the grounds of race or anything else. insurance companies sure dont.

btw ,rizzo ,if it was up to me there would be no blacks or hispanic males 12-45 on the streets anywhere.

racist..maybe but one thing i would bet my life on...

i GUARANTEE that kind of racism would do one thing for sure...cut crime rates in this country by 1000% or more!!

racism is only bad when it is really racism . when we as a culture start giving good citizens and craven criminals alike a cloak of aegis called "protection from racism " ,without using common sense and empirical evidence (aka statistics and concise reasoning )to differentiate one from the other,we are just being simplistic and childish ,much like the monkeys we in fact are.

here is a mind experiment for you readers...

suppose some aliens land here tomorrow and want to become fellow citizens of earth.lets call them the "orange" people ,so they have a color and a distinct race.

we would surely want to know something about them ,so we might ask them questions. we might want to know if they would be ethically like us. what if they told us the absolute truth and it turned out that : 1)they were 90% thieves 2)they were 98% murderers 3) they were 99% liars.

ok ,so knowing all this we,the earth still made them fellow earthlings,and they subsequently decide they like america and its kooky laws as the best place to live. still with me?

supposing a "orange" citizen comes up to you asking for a job working at your house around your wife and kids. you know the statistical facts about the "oranges "...

should you hire him or should you be "racist" and run him off of your property (and out of your town as well)??

eh?