Supreme Court

Here's a news flash from the Supreme Court blog:

“Birther” lawyer rebuffed
$20,000 penalty stands

Lyle Denniston | Monday, August 16th, 2010 11:58 am

The Supreme Court on Monday put an end to a running battle between a California lawyer — a prominent figure in the movement to challenge the legitimacy of Barack Obama’s Presidency — and a federal judge in Georgia. The full Court refused, without comment, to block a $20,000 penalty that District Judge Clay D. Land of Columbus, Ga., had imposed last October on the attorney, Orly Taitz, of Rancho Santa Margarita, Calif. Earlier this month, Judge Land’s Court put a lien on all of Taitz’s real property until the penalty is paid.

The denial of Taitz’s stay application (Taitz v. McDonald, 10A56), was by the Court after the issue had been referred by Justice Samuel A. Alito, Jr. In July, Justice Clarence Thomas similarly denied the application; it was then refiled with Alito. Now that the full Court has acted, Taitz is blocked from making the same plea to another Justice.

After Justice Thomas' denial, this outcome was predictable. Yet I must confess that I was holding my breath, unsure if the right-wing majority on the court still had any grip on reality. The loonies behind Taitz, who simply refuse to believe the well-documented fact that Barack Obama was born in Hawaii, haven't managed to gain full acceptance in the conservative establishment. This is a relief. Yet we have already seen that Justices like Alito and Thomas are willing to abandon precedent and constitutional principles in order to further the radical agenda of big money interests. Through advertising, lobbyists, and the means to pursue expensive legal battles, corporations have always had tremendous power to advance their political agendas. Yet our legal system has for decades viewed that power with some mistrust. In cases where corporate power and money were used to influence the political process, there was an expectation that the people had the right to put some limits on corporate control over elections and lawmaking. At the least, it was considered that the public interest was best served when the spending of corporate money in politics was fully disclosed and not unlimited. Especially after the advent of expensive television advertising, the notion that it was unfair to allow big-money interests to easily "buy" elections was consistently upheld. That has all changed with the recent decision in Citizens United v. F.E.C. As Lyle Denniston observes:

The fact is that the decades-old image of American corporations as a destabilizing and perhaps even corrupting influence in politics has now been thoroughly re-examined by the Supreme Court, and the corporate “person” emerges from the process with — in the eyes of the majority — a burnished image of good citizen. There is a deep chasm of perception, between Thursday’s majority and the dissenters, about the nature of the corporate personality.

Ordinary people have few viable options in standing up to corporate interests. If someone willing to champion the people's interests must face unlimited and uncontrolled corporate spending, they will have little chance of being heard over the big-money noise machine. The only folks left in the arena to defend the people's interests will be liberals with great personal wealth. While I appreciate the contributions of Ted Kennedy and John Kerry, we cannot hope to find an adequate supply of well-meaning aristocrats willing to get their hands dirty in politics.

The DISCLOSE Act will come up soon for another attempt at a vote in the Senate. It is a fairly modest attempt to counter some of the most pernicious effects of the Citizens United ruling. In particular, the Act would require that large corporate political advertisers be clearly identified as sponsors of their ads. I hope this legislation passes, yet I fear that even if it does, corporations will figure out clever ways to evade its intent.

Unimpeachable Logic

Leonard Jaffee has meticulously laid out a compelling case for impeaching our Vice-President. The most important point in his analysis is that the decision to impeach can be taken solely by the House and Senate, without constraints from the Judicial Branch.

"Still, for the House and Senate, the Supreme Court's inclination is irrelevant. The Supreme Court does not determine the meaning of "high Crimes and Misdemeanors." The House and Senate do. Their determinations are not subject to judicial review or limited by judicial precedent or any statute. Even if Cheney's coercions are not technical federal or state-law crimes, they were high Crimes and Misdemeanors. They perverted Cheney's office monstrously and harmed, hugely, our Republic."

Now the real question is: why shouldn't we impeach Dick Cheney? With a 28% approval rating, the general public won't shed any tears to see him on the hotseat. Those Rethugs in the House and Senate who may defend him will do so at considerable political cost.

Justice Jackson knew the score in 1952

Wouldn't it be nice to have our constitutionally elected public officials at least show some modest familiarity with the basic concepts of the founding document that established, and defined their limited powers? Is that too much to ask?" Yet perhaps as a medievalist trained in paleography I expect too much from these guys. Well, fortunately for George, Dick, and Alberto there is a Cliff-notes version!

Short, sweet, and readily available, the opinion of Justice Black of the U.S. Supreme Court in the case of Youngstown Sheet & Tube Co. v. SawyerSupreme Court of the United States,1952,

Justice Black (1952) concurring opinion:

"Youngstown Sheet & Tube Co. v. Sawyer
Supreme Court of the United States,

"The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

1. When the President acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum, for it includes all that he possesses in his
own right plus all that Congress can delegate. In these circumstances, and in these
only, may he be said (for what it may be worth), to personify the federal
sovereignty. If his act is held unconstitutional under these circumstances, it usually
means that the Federal Government as an undivided whole lacks power. A seizure
executed by the President pursuant to an Act of Congress would be supported by
the strongest of presumptions and the widest latitude of judicial interpretation, and
the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of
authority, he can only rely upon his own independent powers, but there is a zone of
twilight in which he and Congress may have concurrent authority, or in which its
distribution is uncertain. Therefore, congressional inertia, indifference or
quiescence may sometimes, at least as a practical matter, enable, if not invite,
measures on independent presidential responsibility. In this area, any actual test of
power is likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will
of Congress, his power is at its lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional powers of Congress over the matter.
Courts can sustain exclusive Presidential control in such a case only by disabling
the Congress from acting upon the subject. Presidential claim to a power at once
so conclusive and preclusive must be scrutinized with caution, for what is at stake
is the equilibrium established by our constitutional system.


The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

1. When the President acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum, for it includes all that he possesses in his
own right plus all that Congress can delegate. In these circumstances, and in these
only, may he be said (for what it may be worth), to personify the federal
sovereignty. If his act is held unconstitutional under these circumstances, it usually
means that the Federal Government as an undivided whole lacks power. A seizure
executed by the President pursuant to an Act of Congress would be supported by
the strongest of presumptions and the widest latitude of judicial interpretation, and
the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of
authority, he can only rely upon his own independent powers, but there is a zone of
twilight in which he and Congress may have concurrent authority, or in which its
distribution is uncertain. Therefore, congressional inertia, indifference or
quiescence may sometimes, at least as a practical matter, enable, if not invite,
measures on independent presidential responsibility. In this area, any actual test of
power is likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.
Courts can sustain exclusive Presidential control in such a case only by disabling
the Congress from acting upon the subject. Presidential claim to a power at once
so conclusive and preclusive must be scrutinized with caution, for what is at stake
is the equilibrium established by our constitutional system.

Taking Back Our Constitution

Many of us will never forgive some of the current Supreme Court Justices-- for effectively installing Dubya as President against the will of a majority of voters. Those Justices that Dubya nominated have largely lived up to liberal expectations, that they would use their power to roll back gains our nation had achieved in the last century. Indeed, our very future as a representative democracy hangs by a slender thread. Fortunately this thread was not snapped in Hamdan v. Rumsfeld. Justices Stevens, Breyer, Ginsburg, Souter, and Kennedy managed to defend our constitutional system of checks and balances against the promoters of tyranny, or the euphemism for tyrannical power known as the unitary executive theory.

Justice Stephens:

Far from making the requisite substantial showing, the Government has failed even to offer a “merely colorable” case for inclusion of conspiracy among those offenses cognizable by law-of-war military commission. Cf. Quirin, 317 U. S., at 36. Because the charge does not support the commission’s jurisdiction, the commission lacks authority to try Hamdan. The charge’s shortcomings are not merely formal, but are indicative of a broader inability on the Executive’s part here to satisfy the most basic precondition—at least in the absence of specific congressional authorization—for establishment of military commissions: military necessity. Hamdan’s tribunal was appointed not by a military commander in the field of battle, but by a retired major general stationed away from any active hostilities. Cf. Rasul v. Bush, 542 U. S., at 487 (KENNEDY, J., concurring in judgment) (observing that “Guantanamo Bay is . . . far removed from any
hostilities”). Hamdan is charged not with an overt act for which he was caught redhanded in a theater of war and which military efficiency demands be tried expeditiously, but with an agreement the inception of which long predated the attacks of September 11, 2001and the AUMF. That may well be a crime,41 but it is not an offense that “by the law of war may be tried by military commissio[n].” 10 U. S. C. §821. None of the overt acts alleged to have been committed in furtherance of the agreement is itself a war crime, or even necessarily occurred
during time of, or in a theater of, war. Any urgent need for imposition or execution of judgment is utterly belied by the record; Hamdan was arrested in November 2001 and he was not charged until mid-2004. These simply are not the circumstances in which, by any stretch of the historical evidence or this Court’s precedents, a military commission established by Executive Order under the authority of Article 21 of the UCMJ may lawfully try a person and subject
him to punishment.

Justice Breyer:

The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a “blank check.” Cf. Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion). Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.
Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

This language is what we should reasonably expect from our Supreme Court. It is not "liberal," by any means, it is merely a calm appeal to the core principles of government that guided our republic from its inception.

We as citizens cannot fail to use the democratic means available to us as voters to prevent any more apologists for tyranny like Scalia, Thomas, or Alito from being appointed to the Highest Court of the land.