All posts tagged: Supreme Court

Constitutional Math

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Democracy's Constitution / The Sjupremes

ADDENDUM 12/11/18 — Several readers responded to this post by saying they thought it would be best if Chief Justice changed his votes, but didn’t speak publicly about his reason for doing so.  It appears that he is doing just that — aided by, of all people, Brett Kavanaugh.  See this NYT story. https://www.nytimes.com/2018/12/10/us/politics/planned-parenthood-supreme-court.html In a recent post I called for Chief Justice John Roberts to act.  I felt that the politicization of the Supreme […]

Saving the Supremes

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Democracy's Constitution / The Supremes

I was recently complaining to a friend about the Republican party’s successful efforts to politicize the Supreme Court, efforts culminating in the confirmation of Brett Kavanaugh.  The “Federalist Five”– Thomas, Alito, Roberts, Gorsuch, and Kavanaugh– are expected to provide  a right wing majority for the foreseeable future. My friend surprised me by noting  that my criticisms sounded like  “sour grapes;” he wondered if I would be equally outraged if the Democrats had been clever enough […]

How a Court Stops Being Supreme

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Democracy's Constitution / The Sjupremes

The short answer is that the Supreme Court stops being  supreme when it allows a political party to dictate the substance of its judges’ decisions. Let me explain. A good place to begin might be 1990  when George Bush Senior appointed David Souter to the Court. Souter, a New Hampshire Republican, had served as a New Hampshire  supreme court justice before being appointed. Although he had a long judicial record, Souter had ruled on few […]

Guiled!

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The Sjupremes

Why did 81-year-old Justice Anthony Kennedy, known best for his decisions protecting gay and abortion  rights,  choose to retire at the time that best enables Donald Trump to appoint a right wing successor who will most likely vote to reverse those decisions?  Adam Liptak and Maggie Haberman  of the New York Times give us the answer.  Trump  “guiled” him. https://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&region=top-news&WT.nav=top-news Liiptak and Haberman outline a  “flattery” campaign aimed at convincing Kennedy his legacy would be […]

The Psychology of Equal Protection

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Repairing The Systen / The Supremes

A  brotherly difference of opinion about cake portions  presents the  same type of  issue that the Supreme Court will soon decide in an important  case. They both involve examples of inequity. Nicholas Kristoff  reports  that scientists have found that monkeys  are very sensitive to   unequal treatment.  If you give one monkey  tastier food, the others resent it. https://www.nytimes.com/2017/06/03/opinion/sunday/what-monkeys-can-teach-us-about-fairness.html?_r=0   But Kristoff  also gives us a lot of examples of situations where humans protest  unequal […]

Never Reward a Bully

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The Sjupremes

Constitutional law expert Cass Sunstein has just given the Democratic Senators some advice on how to handle the Gorsuch vote.   http://www.newsday.com/opinion/commentary/the-best-strategy-for-democrats-on-neil-gorsuch-1.13322437 Sunstein  outlines five options before choosing the  one that suggests they  vote against any nominee who they feel puts in jeopardy basic constitutional protections, a description he believes   Gorsuch warrants; but that they shouldn’t go so far as to filibuster his confirmation if he has the support of a majority of the […]

Is Mitch McConnell Too Smart for His Own Good?

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Democracy's Constitution / The Sjupremes

Last Spring Senate Majority Leader Mitch McConnell embarked on a risky plan to deprive President Obama of the chance to appoint a Supreme Court Justice during his last year in office.   McConnell  won that bet; now it’s time to consider what the final consequences of that victory will be. Some say it gives the Republicans  control of the Supreme Court for  the foreseeable future. But turning the   Supreme Court  into an overtly partisan […]

Creative Math

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Heroes / Repairing the System

I believe that imagination, not logic, is the essential ingredient in good legal reasoning.  But imagination need not be vague or dreamy. Sometimes the imaginative solution to a thorny legal problem can be as clear and simple as 1,2,3. A good example is found in a recent case involving the recurring evil of political gerrymanders. This NYT editorial tells the story well. http://www.nytimes.com/2016/12/03/opinion/where-unfair-voting-practices-begin.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region&_r=0 “Gerrymander” is a term most people have heard of, but few understand. […]

Justice Kennedy’s Selective Amnesia

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The Sjupremes

We all hate Citizens United, but sometimes we don’t remember why. So let me remind you. To take a nostalgic example, let’s consider Jeb Bush’s campaign for the Republican nomination this past year. Under current law if you wanted to support Jeb, you could make a direct contribution to his campaign, but it would have to be limited to 2700 dollars. On the other hand, you could make a donation of any amount to his […]

A Wise Latina

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Democracy's Constitution / Heroes / The Supremes

Sonia Sotomayor has been a different kind of Supreme Court justice from the beginning.   At her confirmation hearing, instead of putting the Senate committee to sleep with platitudes, she told a male Senator that she thought a “wise Latina” might  have some valuable insights to offer in constitutional discussions. Then she ignored the  tradition for first term justices  to be  seen but not heard by  immediately joining in the colloquies  with counsel  during oral […]