Divided Supreme Court gets down and dirty

[TotallyOz]

Having gone to law school many years ago, I have always kept an interest in Court decisions. I try to read them as often as I can. This term has produced some really bitting comments from the justices. CNN had a nice article to sum things up.

WASHINGTON (CNN) -- One Supreme Court justice says his fellow conservatives are "too dismissive" of government efforts to ensure racial diversity in schools. Another more liberal member says those on the right did "serious violence" to a high school student's free speech rights.

And one conservative slams another for "faux judicial restraint."

These were some of the heated written exchanges contained in the final decisions handed down by the high court in the last, frantic days of the term.

With justices rushing to finish business in time for summer recess, the luxury of polite, modest jurisprudence often gives way to bare-knuckle rhetoric, preserving for history the evidence of a divided court.

With the liberal bloc narrowly losing a number of high-profile cases this term -- including late-term abortion, campaign finance reform, and public school desegregation -- the political and legal stakes produced sharper ideological lines.

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer all wrote toughly worded dissents, punctuated by reading some of them from the bench. It is a rarely used privilege, reserved for only the biggest, most contentious cases.

"There is very little that dissenters can do. If you don't have five votes you really don't have anything," said Thomas Goldstein, a Washington appellate attorney who has argued many cases before the Supreme Court.

"The one symbolic step that they can take to show they are almost outraged and that they think something terrible has happened is to read these dissents from the bench. And so the fact that the more liberal members of the court have done it is really a sign that they are frustrated."

Read the rest of the story:

http://www.cnn.com/2007/POLITICS/07/06/cou...arsh/index.html

[Guest StuCotts]

Those who are interested in trying to forecast the future direction of this Court could do worse than pay attention to the foamy-mouthed rants of Ann Coulter.

[AdamSmith]

Supreme Court dissents can make good reading. Great sarcasm, expressed dry as dust, in Souter's dissent in Bush v. Gore. And Ginsburg's dissent drips with scorn for the majority. She opens...

The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.

The political implications of this case for the country are momentous. But the federal legal questions presented, with one exception, are insubstantial.

...and closes...

In sum, the Court’s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States.

I dissent.

Love her omission of "respectfully" from "I dissent." Sharpest insult among the Justices.

http://a257.g.akamaitech.net/7/257/2422/14...0-949_dec12.fdf

[Guest StuCotts]

Supreme Court dissents can make good reading. Great sarcasm, expressed dry as dust, in Souter's dissent in Bush v. Gore. And Ginsburg's dissent drips with scorn for the majority. She opens...

The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.

The political implications of this case for the country are momentous. But the federal legal questions presented, with one exception, are insubstantial.

...and closes...

In sum, the Court’s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States.

I dissent.

Love her omission of "respectfully" from "I dissent." Sharpest insult among the Justices.

http://a257.g.akamaitech.net/7/257/2422/14...0-949_dec12.fdf

With all due respect to the dissents, those who issue them and those who support them, they amount to saying "Oh yeah?" to the schoolyard thug who has insulted you, your mother and your ancestry, and threatened to stomp you senseless. The dissent, no matter how deeply justified, closely reasoned or powerfully worded, is a glorified feel-good mechanism.

The reality is that any Supreme Court that got away with appointing a president will feel empowered to do a lot more to demonstrate that its judgments are based in politics rather than in inconvenient notions of justice. To judge by recent developments, it will succeed. With a smirk. Only the defenseless need fear.

[AdamSmith]

With all due respect to the dissents, those who issue them and those who support them, they amount to saying "Oh yeah?" to the schoolyard thug who has insulted you, your mother and your ancestry, and threatened to stomp you senseless. The dissent, no matter how deeply justified, closely reasoned or powerfully worded, is a glorified feel-good mechanism.

The reality is that any Supreme Court that got away with appointing a president will feel empowered to do a lot more to demonstrate that its judgments are based in politics rather than in inconvenient notions of justice. To judge by recent developments, it will succeed. With a smirk. Only the defenseless need fear.

Well, about the attitude of the Supremes' current rightist majority, sure. And pity this lost cause for much of the rest of our lifetimes.

But now, especially, dissents have their use. As a signal to future plaintiffs, and to lower courts, that an issue may not be settled airtight and for all time; as invitation to have at it again, arguing from a different basis, etc. The larger injustices are seldom righted in one swell foop, but by repeated battering in the courts until something finally gives.

One of my favorite hobbyhorses, namely Please Enforce the Full-Faith-and-Credit Clause re Massachusetts Gay Marriages, seems unlikely to be resolved any other way.

[Guest StuCotts]

Well, about the attitude of the Supremes' current rightist majority, sure. And pity this lost cause for much of the rest of our lifetimes.

But now, especially, dissents have their use. As a signal to future plaintiffs, and to lower courts, that an issue may not be settled airtight and for all time; as invitation to have at it again, arguing from a different basis, etc. The larger injustices are seldom righted in one swell foop, but by repeated battering in the courts until something finally gives.

One of my favorite hobbyhorses, namely Please Enforce the Full-Faith-and-Credit Clause re Massachusetts Gay Marriages, seems unlikely to be resolved any other way.

I envy you your optimism.

[Guest epigonos]

Please do keep in mind that a 5 to 4 majority is one heart attack away from a major change. Yes liberal J. Paul Stevens is the oldest Justice on the Court but if he were to die tomorrow the liklehood of George W. Bush being able to appoint a Justice as conservative as his last two appointments is nill. As we are all aware the Democrats control the Senate and they will thus control the appointment of any court vacancy that might happen within the next two years. The more likely scenario is that during the term of the next President one of the Conservative might die and a new, possibly a Democratic President, will make the appointment. For what it is worth I would guess that this highly conservative court majority is no long for this world.

[Guest Conway]

I have followed the evolution of the court over the past few years. For those who have an interest in this type of thing, I highly recommend Jan Greenburg's excellent book Supreme Conflict. It is a history of the development of the court from the end of the Warren Court during the Reagan Administration to the beginning of the Roberts Court. Greenburg was allowed unfettered access to the note of Harry Blackmun and received a great deal of access to Sandra Day O'Connor in preparation of her book.

I don't know that I would call this court conservative though I'd certainly say that I believe that it is the most conservative court that we have seen in 50 years. Despite the fact that this court bears the name of it's Chief Justice, John Roberts, this is clearly Anthony Kennedy's court. He is and will be the swing vote on a number of issues given the current make up of the court.

From a philosophical perspective, Kennedy is a bit of an enigma. early in his term on the court, he often voted with Scalia and Thomas, the two most conservative members of the Rheinquist Court. However, in his third session, he and Justice O'Connor developed this kind of quirky brand of Justice that defied and conventional philosophy.

Make no mistake about it, Kennedy is an activist judge. But, his activism defies the politics of Stevens, Ginsburg, Breyer and Souter.

As a result, his opinion, which is often the determinant as to which way the court will rule on issues is often based on an activist position that government should be limited with regard to its control over free trade. but, at the same time, he has firmly held, in several key opinions, that individual right (eg the right to abortion and free speech to name a couple) cannot be subject to the interference of government or laws effected by the legislative branch.

He's strong on security though. As the may Guantanamo cases are heard, I don't see him ruling in favor of non-citizen enemy combatants while I do see him ruling in favor of the rights of aliens held in Guantanamo. And that's the way it should be given over 50 years of precedent relating to the treatment of prisoners of war and/or enemy combatants.

I think Adam Smith hit the nail on the head. A well written dissent historically has left the door open on a number to more precise definitions of law and theory in ensuing cases. Thomas and Scalia used this tactic well when they were in the clear minority of the court.

It has been said that O'Connor was so very sensitive to criticism via dissent that Thomas' stinging dissents of her majority opinions drove her to a more friendly and convivial relationship with the activist judges in the Rheinquist court that ultimately led to her key vote in a number of issues later in her career.

[TotallyOz]

When I was in law school, we often read the disent in the context of that court and it did envision a future change if the make up of the court were to shift. I see the disent as just as important for the record as the majority opinion for future references. I just hope that the current make up of the court does not stand for too long. The Bush appointees (Sr and Jr.) have really changed the course of our lives currently and in future generations.

[Guest StuCotts]

I have followed the evolution of the court over the past few years. For those who have an interest in this type of thing, I highly recommend Jan Greenburg's excellent book Supreme Conflict. It is a history of the development of the court from the end of the Warren Court during the Reagan Administration to the beginning of the Roberts Court. Greenburg was allowed unfettered access to the note of Harry Blackmun and received a great deal of access to Sandra Day O'Connor in preparation of her book.

I don't know that I would call this court conservative though I'd certainly say that I believe that it is the most conservative court that we have seen in 50 years. Despite the fact that this court bears the name of it's Chief Justice, John Roberts, this is clearly Anthony Kennedy's court. He is and will be the swing vote on a number of issues given the current make up of the court.

From a philosophical perspective, Kennedy is a bit of an enigma. early in his term on the court, he often voted with Scalia and Thomas, the two most conservative members of the Rheinquist Court. However, in his third session, he and Justice O'Connor developed this kind of quirky brand of Justice that defied and conventional philosophy.

Make no mistake about it, Kennedy is an activist judge. But, his activism defies the politics of Stevens, Ginsburg, Breyer and Souter.

As a result, his opinion, which is often the determinant as to which way the court will rule on issues is often based on an activist position that government should be limited with regard to its control over free trade. but, at the same time, he has firmly held, in several key opinions, that individual right (eg the right to abortion and free speech to name a couple) cannot be subject to the interference of government or laws effected by the legislative branch.

He's strong on security though. As the may Guantanamo cases are heard, I don't see him ruling in favor of non-citizen enemy combatants while I do see him ruling in favor of the rights of aliens held in Guantanamo. And that's the way it should be given over 50 years of precedent relating to the treatment of prisoners of war and/or enemy combatants.

I think Adam Smith hit the nail on the head. A well written dissent historically has left the door open on a number to more precise definitions of law and theory in ensuing cases. Thomas and Scalia used this tactic well when they were in the clear minority of the court.

It has been said that O'Connor was so very sensitive to criticism via dissent that Thomas' stinging dissents of her majority opinions drove her to a more friendly and convivial relationship with the activist judges in the Rheinquist court that ultimately led to her key vote in a number of issues later in her career.

Sophistry.

Word of warning to Adam: Look at who's agreeing with your stance on the utility of dissents. If you've never had an incentive to re-examine your position, you have now.

[Guest Conway]

Sophistry.

Word of warning to Adam: Look at who's agreeing with your stance on the utility of dissents. If you've never had an incentive to re-examine your position, you have now.

The fact that Adam and I may disagree on the political and social implications of a specific decision of the court shouldn't really mitigate the fact that we both recognize the power of a dissent whether it be the dissent of a constructionist like Scalia or the dissent of an activist like Breyer.

Such recognition has nothing to do with our respective political opinions.

[AdamSmith]

The fact that Adam and I may disagree on the political and social implications of a specific decision of the court shouldn't really mitigate the fact that we both recognize the power of a dissent whether it be the dissent of a constructionist like Scalia or the dissent of an activist like Breyer.

Such recognition has nothing to do with our respective political opinions.

Besides that, Conway and I share a bond of common appreciation for certain instances of Tar Heel young manhood. (Mixing the ridiculous with the sublime -- your pick which is which!)