Tag Archive for ‘Supreme Court’
There are some real stunners in today’s convoluted ruling from the Supremes regarding Arizona v. United States. Here are some of my favorites:
“As a general rule, it is not a crime for a removable alien to remain in the United States.”
“Federal governance is extensive and complex.”
“Removal is a civil matter, . . .
” . . . and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all.”
“States are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance.”
“Because Congress has occupied the field, even complementary state regulation is impermissible.”* **
*I made that one up.
**Not really: It’s real.
Here’s the bottom line of today’s SCOTUS decision regarding the incorporation of the Second Amendment, which amounts to an explicit rejection of traditional federalism on the part of the conservative majority. (Full disclosure: I’m of the Hestonian “cold, dead hands” persuasion.) Writing for the majority, Justice Alito admits the original intent of the Bill of Rights: “The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government.” The Marshall Court “firmly rejected the proposition that the first eight Amendments operate as limitations on the States, holding that they apply only to the Federal Government.” Then comes the “big but” of American history: “The constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our country’s federal system.”
So the nut of the opinion is, in essence, what’s done is done. To those who would insist that original intent (of the authors of the Bill of Rights, or the legislators who voted on it, or especially the states who ratified it) matters, Justice Alito offers what might be called the DeLorean Defense or the Flux Capacitor Exception:
There is nothing new in the argument that, in order to respect federalism and allow useful state experimentation, a federal constitutional right should not be fully binding on the States. This argument was made repeatedly and eloquently by Members of this Court who rejected the concept of incorporation and urged retention of the two- track approach to incorporation. . . . Time and again, however, those pleas failed. Unless we turn back the clock or adopt a special incorporation test applicable only to the Second Amendment, municipal respondents’ argument must be rejected. Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise, that guarantee is fully binding on the States . . .
You and I may appreciate the practical outcomes of today’s ruling, but the whole affair calls to mind something the late Mark Winchell wrote for Chronicles in November 2005 (“Reattacking Leviathan: Starving the Beast”):
Unfortunately, hoping for the appointment of “conservative” judges is not enough. By their very nature, judicial conservatives show an exaggerated deference for settled law (the principle of stare decisis). What is needed to restore the original federalist balance is the sort of counterrevolutionary judicial activism that we are not likely to see. At a more fundamental level, it is ludicrous for the states to allow their sovereignty to be defined by lifetime appointees of the central government.
The Supreme Court’s power has become virtually unchecked: Amending the Constitution to reverse an erroneous Supreme Court decision is nearly impossible, and Congress has proved too timid to use the other weapons the Constitution provides to check the Court, including its power to restrict the jurisdiction of the federal courts.
“A chorus of black commentators and civic leaders has begun expressing frustration over (Elena) Kagan’s hiring record as Harvard dean. From 2003 to 2009, 29 faculty members were hired: 28 were white and one was Asian American.”
CNN pundit Roland Martin slammed “Kagan’s record on diversity as one that a ‘white Republican U.S. president’ would be criticized for.”
When Republicans were warned not to give Sonia Sotomayor the drubbing Democrats gave Robert Bork and Sam Alito—lest they be perceived as sexist and racist by women and Hispanics—the threat was credible, for it underscored a new reality in American politics.
The Supreme Court’s 5-4 decision in favor of white firemen who claim to be victims of discrimination gives us an opportunity to attempt a little political casuistry, even before we have finished outlining a set of essential principles. It is not the details of the case that matter—what do I care about what happens in New Haven—but the rationale for making moral and political decisions.
What are the grounds for rejecting Sonia Sotomayor?
No one has brought forth the slightest evidence she has the intellectual candlepower to sit on the Roberts court. By her own admission, Sotomayor is an “affirmative action baby.”
If Judge Sonia Sotomayor is confirmed, the U.S. Supreme Court will consist of six Catholics, two Jews and precisely one white Anglo-Saxon Protestant in the form of Justice John Paul Stevens, who is 89 years old and boasts of two important WASP insignia: inherited wealth and a bow tie.
If the U.S. Senate rejects race-based justice, Sonia Sotomayor will never sit on the Supreme Court.
When you think about it, Sonia Sotomayor is the perfect pick for the Supreme Court—in Barack Obama’s America.