Quote of the Day: Arlen Specter on Justices Roberts and Alito

By Michael J.W. Stickings

Ex-Republican Sen. Arlen Specter of Pennsylvania voted to confirm both John Roberts and Samuel Alito, but the outgoing Democrat, in his last speech on the Senate floor, rightly took aim at both:

The Supreme Court has been eating Congress' lunch by invalidating legislation with judicial activism after nominees commit under oath in confirmation proceedings to respect congressional fact finding and precedent.

Ignoring a massive congressional record and reversing recent decisions, Chief Justice Roberts and Justice Alito repudiated their confirmation testimony given under oath and provided the key votes to permit corporations and unions to secretly pay for political advertising -- thus effectively undermining the basic Democratic principle of the power of one person, one vote. Chief Justice Roberts promised to just call balls and strikes and then he moved the bases.

Specter was referring to the notorious Citizens United decision, a 5-4 ruling (with the conservatives, including Kennedy, with the swing vote, in the majority) that essentially opened to the door to unlimited corporate spending on election advertising. As Justice Stevens wrote in his dissent:

At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

In other words, the decision paves the way for the corporate takeover of American politics -- as if the system weren't already corporate enough.

Of course, Specter could not have known this when he voted for Roberts and Alito, but he knew full well that such right-wing judicial activism was likely. If nothing else, he should have known after Bush v. Gore that what drives conservative judges these days is not adherence to the letter of the Constitution, as they self-righteously claim, but adherence to a generally partisan right-wing agenda and to a view of the judiciary as a key instrument for enabling the implementation of that agenda.

Yes, Specter should have known this, and maybe he did, but at least he's saying the right things on the way out.

Supreme Court strikes down law banning depictions of extreme animal cruelty

By Michael J.W. Stickings

I'm all for free speech -- in fact, I consider myself a firm civil libertarian in this regard -- but some "speech" isn't really speech and shouldn't be free.

Take, for example, the case of videos depicting extreme cruelty to animals:

The Supreme Court on Tuesday forcefully struck down a federal law aimed at banning depictions of dog fighting and other violence against animals, saying it violated constitutional guarantees of free speech and created a "criminal prohibition of alarming breadth."

The 8 to 1 ruling, written by Chief Justice John G. Roberts Jr., was a ringing endorsement of the First Amendment's protection of even distasteful expression. Roberts called "startling and dangerous" the government's argument that the value of certain categories of speech should be weighed against their societal costs when protecting free speech. 

Again, I'm all for the First Amendment, but, to me, animal cruelty videos should be considered akin to child pornography:

The law was enacted in 1999 to forbid sales of so-called crush videos. They appeal to a certain sexual fetish by depicting the torture of animals -- cats, dogs, monkeys, mice and hamsters, according to Congress -- or showing them being crushed to death by women wearing stiletto heels or with their bare feet. While dog-fighting and other forms of animal cruelty are already illegal, Congress said the legislation was necessary to stop the production of videos for commercial gain.

What was Roberts' objection?

Roberts' opinion said the court was not passing judgment about whether a narrower statute limited just to crush videos and "other depictions of extreme animal cruelty" might be constitutional.

But the court said the legislation passed by Congress was far too broad. Anyone who "creates, sells or possesses a depiction of animal cruelty" for commercial gain can be imprisoned for up to five years. A depiction of cruelty was defined as one in which "a living animal is intentionally maimed, mutilated, tortured, wounded or killed."

Roberts wrote that the definition was so loose that it could include all depictions of wounding or killing animals, even hunting videos or magazines. He said the law's exemption for works of "serious religious, political, scientific, educational, journalistic, historical or artistic value" was not enough protection, and the court was not reassured by the government's argument that prosecutions were rare.

That's just silly. The law in question is clearly aimed at depictions of extreme animal cruelty, not depections of hunting (which I consider cruel but certainly not at the level of what is depicted in these "crush" videos). And so I actually find myself in agreement with Justice Alito, the lone dissenter:

He said the law was enacted "not to suppress speech, but to prevent horrific acts of animal cruelty." He said that the entire law need not be found unconstitutional, and that the "practical effect" of the ruling would be to spur production of crush videos, which opponents such as the Humane Society of the United States said had decreased with passage of the 1999 law.

As Wayne Pacelle, the head of The Humane Society of the United States, wrote at HuffPo, "[t]he Court got hung up in a stream of hypothetical scenarios, imagining that the law as worded might sweep up the sellers of hunting, bullfighting, and other videos that the federal lawmakers never intended to address." Furthermore:

Justice Samuel Alito dissented, noting that the majority has struck down "a valuable statute that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty -- in particular, the creation and commercial exploitation of crush videos, a form of depraved entertainment that has no social value." Justice Alito explained that "the animals used in crush videos are living creatures that experience excruciating pain. Our society has long banned such cruelty, which is illegal throughout the country."

With the Court issuing a disappointing albeit carefully crafted decision, it seems that Congress can step in and write a more narrowly tailored federal statute to prohibit the commercial sale of videos depicting extreme and illegal acts of cruelty. Clearly, it should not be legal to stage a dogfight in your basement and then sell the video of this criminal action. It is illegal to molest a child and sell a video of this sort of child pornography, and the same should be true for the most extreme and widely criminalized acts of animal cruelty.

With this ruling, a narrower statute is certainly necessary and ought to be enacted as soon as possible. Surely even ardent civil libertarians could get behind that.

And I would add this: While depictions of such animal cruelty ought to be banned, those who inflict the cruelty and those who party to it ought to face significant punishment under the law. There are laws in place, yes, but they are not nearly strong enough, and we ought to take the welfare of animals far more seriously than we do.

As for these disgusting "crush" videos, which I had no idea even existed before learning of this case, Alito is right, they are "a form of depraved entertainment that has no social value." But who are the utterly depraved individuals who make them, and who enjoy them? I realize that there is extraordinary depravity out there, and I realize that depravity is a matter of perspective (consider those ignorant bigots who think that homosexuality is depraved, for example), but surely there is a line than can be drawn. It is one then when consenting adults engage in certain activities with each other, quite another when children or animals or even adults who are in no position to consent are abused, tortured, and, in this case, killed.

There should be zero tolerance for such abhorrent behaviour.

Stuff to read (3/18/10): Obama, SCOTUS, Pakistan, and Glenn Beck

By Michael J.W. Stickings

Check these out, all highly recommended:

-- Media Matters: "The media myth of Obama's 'falling poll numbers'," by Eric Boehlert. Key quote: "Feeding off right-wing talking points, political journalists love to push the idea that Obama's polling numbers are in the tank and that he's fading fast. It's all part of the preferred, CW narrative that his entire presidency is slipping away. (It must now be 'save[d],' according to Newsweek.)"

-- The New Republic: "POTUS v. SCOTUS," by Jeffrey Rosen. Key quote: "In battles between a popular president and an anti-majoritarian Court, it's almost always the president who prevails. Using the Court as a punching bag puts Obama in the company of his greatest predecessors, Jefferson, Lincoln, and both Roosevelts -- all of whom bashed the Court for thwarting the will of the people. As long as he plays his cards carefully, Obama has much to gain from challenging John Roberts, and the Roberts Court has much to lose." (See also my recent post at HuffPo on the spineless chief justice.)

-- Der Spiegel: "The Football Stitchers of Sialkot," by Hasnain Kazim. Key quote: "The city of Sialkot in Pakistan produces as many as 60 million hand-stitched footballs in a World Cup year. The firms here are running out of new workers since child labor was abolished. Western buyers may have a clear conscience, but the children of Sialkot now toil in the local brickworks instead."

-- Chicago Sun-Times: "Jesus was a Nazi. So's your preacher," by Roger Ebert. The great film critic addresses Glenn Beck's attack on "social justice," including in a religious context, claiming it is code for both Communism and Nazism. Key quote: "Does Glenn Beck speak for average Americans? His logic indicates they must be attending churches that preach Communism and Nazism from the pulpit every Sunday. Why are they so slow to catch on? Now that Beck has alerted them, where can they flee to worship? What will become of them? They have been cast out into the wilderness, where nothing makes sense anymore. The lonely, barren, ignorant wilderness, silent but for the gnashing of Glenn Beck."

Teabagging Thomas: Ginni, wife of Clarence, links to Tea Party "movement"

By Michael J.W. Stickings

See, this is why Chief Justice Roberts's recent little hissy fit over being challenged by President Obama was so ridiculous. (Well, it's one of the reasons why. Basically, Roberts should grow a spine.)

According to Roberts, Obama shouldn't have criticized the Supreme Court -- or, rather, one of its decisions -- in his State of the Union address. Roberts found this "very troubling."

And yet, by his own actions (in speaking out the way he did), Roberts seems to approve of the chief justice of the United States criticizing the president of the United States publicly.

It would seem that the Supreme Court is so supreme, and the justices so spineless (or some of them, including Roberts), that it can dish out whatever it wants, even as it can't take any criticism in return. And what it dishes out is not judicial dispassion, detachment, and neutrality but ideology and a partisan agenda. We all know this, or should, and yet we cling to the myth of the non-partisanship of the Supreme Court. (Did Bush v. Gore tell us nothing?) Those of us who aren't on the right also know that the judicial activism of the right is far more of a nefarious reality than any such activism of the left. (They thought Sotomayor would make up the law? Hardly.) Would Roberts have openly criticized the man who appointed him, George W. Bush? Of course not. Because he's a Republican. Because they both are.

But it isn't just activism from the bench, it's direct political activism, or activism by a degree of separation. The L.A. Times reports:

As Virginia Thomas tells it in her soft-spoken, Midwestern cadence, the story of her involvement in the "tea party" movement is the tale of an average citizen in action.

"I am an ordinary citizen from Omaha, Neb., who just may have the chance to preserve liberty along with you and other people like you," she said at a recent panel discussion with tea party leaders in Washington. Thomas went on to count herself among those energized into action by President Obama's "hard-left agenda."

But Thomas is no ordinary activist.

She is the wife of Supreme Court Justice Clarence Thomas, and she has launched a tea-party-linked group that could test the traditional notions of political impartiality for the court.

In January, Virginia Thomas created Liberty Central Inc., a nonprofit lobbying group whose website will organize activism around a set of conservative "core principles," she said.

*****

"I adore all the new citizen patriots who are rising up across this country," Thomas, who goes by Ginni, said on the panel at the Conservative Political Action Conference. "I have felt called to the front lines with you, with my fellow citizens, to preserve what made America great."

I suppose Ginni Thomas has every right to be politically active like this -- assuming that she acts ethically, and that her husband does. But let's not pretend that Justice Thomas isn't fully behind this, supportive of his wife's political aims, and let's not pretend that he and his fellow conservative justices aren't often motivated by similar partisan political priorities.

And, of course, there is at least the appearance of potential conflict of interest here. As Attaturk writes, "[i]f such conflicts involved, say Ginsburg or Stevens, it would be screamed about on Fox News 23:54/7. Glenn Beck would cry himself into a dehydration coma..." True. It's all rather troubling.

But what's also troubling is Ginni Thomas herself.

-- Does she honestly see herself as "an ordinary citizen"? If so, she's deeply delusional.

-- And does she honestly believe that Obama has pursued a "hard-left agenda"? How do bailing out Wall Street, upping the war in Afghanistan, and promoting a compromise market-oriented health-care reform package that closely resembles what Republicans previously supported, including as a counter to Hillarycare back in the '90s, and that has alienated many progressives, including some of his most ardent supporters, amount to anything "hard-left"?

Clarence has long been thought to be a light-weight on the Court, if not thoroughly unqualified to be a justice. While that may or may not be true, it would seem that in the Thomas household it is Teabagger Ginni who is the intellectually lighter of the two.

Yes, John Roberts really is spineless

By Michael J.W. Stickings

As you may know, I'm a blogger over at The Huffington Post. I usually put up two posts a week there, most cross-posted from here (though often revised somewhat).

You can find my HuffPo page here. It includes my post archive.

Well, I cross-posted my Reaction post on the spinelessness of Chief Justice John Roberts there yesterday, and, well, it generated a lot of feedback, more than any of my previous posts. As of right now -- I'm writing this at 11:51 pm Thursday evening -- it has 180 comments, and it's been a steady rise throughout the day. Most of them, thankfully, are positive.

If you're interested in checking out that post, as well as the comments, you can find it here.

Alright, enough self-promotion. Let's get back to blogging.

A spineless chief justice: John Roberts and the denigration of American democracy

By Michael J.W. Stickings

If Chief Justice John Roberts can't take it, he should resign.

Roberts found it "very troubling" that President Obama would criticize the Supreme Court -- or, more specifically, a single ruling of the Supreme Court, and an awful one at that -- in his State of the Union address?

Last time I checked, the checks and balances outlined in the Constitution, the separation of powers of the three branches of government -- do not insulate the Supreme Court from criticism. The State of the Union wasn't "denigrated," as Roberts put it, and Obama didn't turn it into "a political pep rally." Of course, there was partisanship on both sides, but that's just the way Congress is. And no one forced Roberts to attend.

Now, I realize that the judiciary should be detached from such partisanship, and that perhaps the justices felt somewhat uncomfortable, and I certainly do not wish them to be partisan cheerleaders, and I do not want all of their rulings to be subjected to the partisan cauldron, but what is wrong with the president taking a position on a Supreme Court ruling and expressing that position in front of the justices themselves? Are they somehow so supreme that they mustn't be challenged to their faces?

And, indeed, what is troubling is not what Obama did but how the Supreme Court ruled. Robert Gibbs:

What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections, drowning out the voices of average Americans. The President has long been committed to reducing the undue influence of special interests and their lobbyists over government. That is why he spoke out to condemn the decision and is working with Congress on a legislative response.

The Supreme Court had its say. The people's representatives, including the top one, have every right to respond. Glenn Greenwald:

It's not actually a unique event of oppression or suffering to have to sit and listen to a speech where someone criticizes you and you can't respond that very moment (but are able, as Roberts just proved, to respond freely afterward).  Even in the State of the Union Address, it's completely customary for the President to criticize the Congress or the opposition party right to their faces, while members of his party stand and cheer vocally, and -- as the reaction to Joe Wilson's outburst demonstrated -- "decorum" dictates that the targets of the criticism sit silently and not respond until later, once the speech is done.  That's how speeches work.  Only Supreme Court Justices would depict their being subjected to such a mundane process as an act of grave unfairness (and, of course, Roberts' comrade, Sam Alito, could not even bring himself to abide by that decorum).

What makes Roberts' petty, self-absorbed grievance all the more striking is that this is what judges do all the time.  It's the essence of the judicial branch.  Federal judges are basically absolute tyrants who rule over their courtroom and those in it with virtually no restraints.  They can and do scold, criticize, berate, mock, humiliate and threaten anyone who appears before their little fiefdoms -- parties, defendants, lawyers, witnesses, audience members -- and not merely "decorum," but the force of law (in the form of contempt citations or other penalties), compels the target to sit silently and not respond.  In fact, lawyers can be, and have been, punished just for publicly criticizing a judge.

*****

Supreme Court Justices, in particular, have awesome, unrestrained power.  They are guaranteed life tenure, have no authorities who can sanction them except under the most extreme circumstances, and, with the mere sweep of a pen, can radically alter the lives of huge numbers of people or even transform our political system (as five of them, including Roberts, just did, to some degree, in Citizens United).  The very idea that it's terribly wrong, uncouth, and "very troubling" for the President to criticize one of their most significant judicial decisions in a speech while in their majestic presence -- not threaten them, or have them arrested, or incite violence against them, but disagree with their conclusions and call for Congressional remedies (as Art. II, Sec. 3 of the Constitution requires) -- approaches pathological levels of vanity and entitlement. 

Brilliantly put.

Roberts should be strong enough to take some of his own medicine, and should grow a spine. But he should also start respecting the constitutional and political system of which he is an integral part, a system that prescribes and protects the independence of the judiciary but that does not put it on a platform above the democratically elected, shielded from any and all direct criticism.

That's just the American way, whether he likes it or not.

BREAKING NEWS: Chief Justice Roberts will not be retiring

By Michael J.W. Stickings

That's right, contrary to earlier reports, John Roberts will not be stepping down as chief justice.

Alas.

Explanation here. It seems a Georgetown Univ. law professor told his class this morning that Roberts would be resigning. His students, as you might well imagine, spread the news via text, IM, etc., and it went sort of viral.

As it turns out, the "eccentric" professor was just trying to make a point about "the credibility and reliability of informants," as one student explained. Halfway through the class, the profesor "revealed that the Roberts rumor was made up to show how someone you ordinarily think is credible and reliable (ie a law professor) can disseminate inaccurate information."

(Indeed.)

By the time the truth was out, it was too late.

If nothing else, this story shows just how quickly information, correct or not, can spread in an age of almost universal interconnectedness and media accessibility, in an age of social networking and individual empowerment. (All of which is more bad than good, I would say, despite all the problems, which I won't delve into here.)

It's just too bad it was all a joke.

It Begins With The Chief Justice Screwing Up The Presidential Oath Of Office !

"I do solemnly swear that I will faithfully execute the office of president of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States."



Wow, The Chief Justice of the Supreme Court John Roberts screws up the Presidential oath. Obama just looks at him smiling, like "... are f-ing kidding me"

He had like 2 years to practice and he dropped the ball, maybe he was just drunk. I hope this is not an omen

Iowa thinking

By Creature

As Walter Shapiro points out today in Salon, tonight is make or break for John Edwards. Since '04 he has banked on Iowa to propel him forward in this race and for the sake of competition, diversity, and choice, I hope he prevails. Without a victory in Iowa the likes of Chris Matthews will destroy him. I am not backing Edwards formally, but I do root for the underdog, especially when that underdog carries a blue-collar message. Obama may inspire me to hope, but Edwards inspires me to fight. I, for one, hope he wins tonight so he can fight another day.

(Cross-posted at State of the Day.)

Top Ten Cloves: Things overheard on first day of Supreme Court

News Item: US Supreme Court starts new term

By J. Thomas Duffy

10. We might have to do something this term... I think, while we were on vacation, the NSA was tapping my phone.

9. Hey, even if we don't have a case in front of us, can we rule against Hillary Clinton, and ban her from using that laugh?

8. Should we leave room on the calendar for Britney Spears?... I mean, if she comes in here not wearing any panties, she's got my vote.

7. Anybody check the news? The President didn't declare any of us dead, like he did with Mandela, did he?

6. Hey, let's fuck with the Congress this year... We don't reach any decisions... We just issue, non-binding "Senses of the Supreme Court."

5. If Roberts has another one of his siezures, and, God-forbid, anything happens, I got dibs on his office.

4. If we get the Isiah Thomas case, I think Clarence, and Ruth, should recuse themselves... Just to play it safe.

3. That was a nice touch by the Chief Justice... Giving us all Welcome Back gifts... Bongs in the shape of a gavel.

2. I just heard they're replacing our Secret Service details with Blackwater guys.

1. No Clarence, even with the discount, I don't want to buy your book.

Bonus Nine-In-Black Riffs

White House Stresses Roberts' Wife "Not A CIA Agent"; No Knowledge of WMD's; No Plans To Send Husband To Niger

Congress Getting "Weary" Of Roberts' Visits; Senators Feeling Stalked; Roberts Relentlessly Using Meet-and-Greets To Boast Chances

Scalia: "No Pink Robes Needed Here"; Conservative Justice Reacts To Roberts Disclosure On Gay Rights Case; Justice Roberts Sunday In The Making


















(Cross-posted at The Garlic.)