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How Much Does Free Speech Cost?

Chief Justice John Roberts

John Roberts, Chief Justice of the Supreme Court

The full majesty of the United States Supreme Court was on display the other day when the conservative majority proclaimed that rich and poor alike can now give as much money and they please to as many political candidates as they choose, so long as they don’t give more than $5,200.00 to any one individual.

Chief Justice John Roberts wrote the opinion of the court’s conservative majority. He found that the restrictions on campaign giving, which limited the number of candidates to whom you could give money, violated the Constitution. Roberts wrote that such restrictions “intrude without justification on a citizen’s ability to exercise the most fundamental First Amendment activities.”

In a wonderful example of non-sequitor thinking, Roberts wrote, “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.”

Somebody from Sesame Street should point out to the Chief Justice that merely because we find certain things repugnant, doesn’t mean they have any other relation to each other or to something else we find repugnant.

Anyone who so desires can burn a flag, protest at a funeral or parade with Nazis. But only the very rich can give away money in the thousands or millions to influence an election. In the last presidential election, Sheldon Adelson, the casino billionaire, along with his family, gave over $53 million to super PACs to help elect Republican candidates from Mitt Romney on down to a Representative from New Jersey. Thanks to the conservative Roberts court, the rich have considerably more freedom of speech than the poor.

Oliver Wendell Holmes & Obama Care

Oliver Wendell Holmes

Oliver Wendell Holmes

Yes, you remember now, Holmes was a Supreme Court justice — but that was several decades ago, maybe a century ago, right? Just to refresh your memory, Oliver Wendell Holmes was an Associate Justice of the US Supreme Court from 1902 to 1932, when he retired at age 90. He’s one of the most widely cited Supreme Court justices. He often said that judges decide first and then look for the laws and precedents that will justify their decisions. He wasn’t being witty or making light conversation. In his very first law review article, written in 1870, he said, “It is the merit of the common law that it decides the case first and determines the principle afterwards.”

That may strike you as exactly the reverse of what should happen. But nothing that Holmes came across in his long life as a lawyer and judge made him change his mind. Indeed, he once told his fellow supreme court justices that he could take any established principle they wished to cite and he could use it to uphold or reverse any decision. Holmes may have spoken or written in ways that startle us, but by and large he was right in his view of how judges decide. Or how we all decide, for that matter.

You’ve noticed that Supreme Court decisions are generally not unanimous. Judging whether or not a law is constitutional requires that the justice interpret the Constitution. And — Surprise! — interpretations differ. Yes, old Oliver Wendell Holmes was right. Decide the case first and determine the principle afterwards.

We do need a national health insurance plan. Even Chief Justice John Roberts saw that right away. The reasoning came later, fashioned rather like a corkscrew, but it got the job done. We applaud the Chief Justice.

 

GOP, Lies and Audio Tape

You probably know that after the Supreme Court hearing about the health care law, the Republican National Committee released a video with what sounded like an honest audio recording of part of that hearing. And you probably know it wasn’t an honest audio. The Republican National Committee had manipulated the audio to make it sound as if the government’s lawyer, Donald Verrilli, was nervous and stumbling, because he was having a hard time making the case for the government’s health care plan.

Why did the Republican National Committee lie that way? After all, only the most partisan Democrats would claim the government came off well in that hearing. Verrilli certianly did his job well, but any objective listener would have to say that the conservative justices appeared very dubious about the law and the more middle-of-the-road justices seemed pretty skeptical of it.  It wasn’t a good day for the Obama administration.

George Romney’s first video attacking President Barack Obama also was a bare-faced lie. Romney’s campaign associates frankly admitted that they used Obama’s words when he was quoting one of his opponents, but they  attributed the sentiments to Obama. They  said they were merely making a political point. Apparently, that made it all right.  (We have a post on that, but please don’t get distracted.)

Sean Spicer, a spokesman for the Republican National Committee has said that the GOP ad about health care and the Supreme Court uses multiple audio bites and runs them together to make it sound as if the Solicitor General is having a hard time defending the law. “Our goal was to make the point of what a hard sell Obamacare is,” Spicer told the Associated Press.  Oh, good, that explains the lying.

Sex And Violence

Judge's gavelBy coincidence the Stop Porn Culture conference and the US Supreme Court decision about violent videos came upon us at the same time. What caught our attention was that although the Supreme Court has ruled in the past that states can legally keep pornography from youngsters, it has now ruled states cannot keep violent video games from them.

Justice Antonin Scalia wrote the court’s majority decision in the video game case. Among other things, he wrote “Like the protected books, plays, and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.”  And later: “No doubt a State possesses legitimate power to protect children from harm… but that does not include a free-floating power to restrict the ideas to which children may be exposed.”

That last part did strike us as running counter to the assumptions behind the Supreme Court’s permitting a ban on, say, video depictions of  sexual acts being shown to the very young. In perhaps the most important case involving children and their access to pornography (Ashcroft vs. ACLU, 00-1293) the court ruled 8 to 1 in favor of using “community standards” as a measure for determining what material should be prohibited or regulated online.

A pornographic book or video  can also “communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music)”  yet those books and videos can be restricted using “community standards.” OK, we’ll stop now and admit we’re confused. As a matter of fact, Justice Scalia does go into the difference in legal standing between pornography and depictions of violence.  Justice Scalia has never been  one of our favorite Supreme Court justices, but his opinions are always interesting to read, and if you’d like to read his opinion, please click on this link http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf

More Notes


Tim Carmody, in his excellent piece, "How Haiti Became Poor", notes that President Trump's racist policies and vulgar language have sullied the word "shithole" which used to be one of the all-time great swear words. He's right. It's another terrible power this careless President wields.