Constitutional Law

The Supreme Court At Its Lowest Public Opinion Rating In Modern Times!

The US Supreme Court has been part of American government since the passage of the Judiciary Act of 1789.

There have been 17 Chief Justices and a total of 116 Justices, including five who served both as Associate Justices, and as Chief Justice.

We have seen diversity on the Supreme Court in recent times, with two African American men and one African American woman; a Latina woman; six Jewish men and two Jewish women; six women overall; two Italian American Catholics; 15 Catholics overall; and 92 Protestants.

The present Court has four women, and five men, but the Court’s ideological tilt is way far to the right, and it has caused a loss of favorable public opinion toward the Court, with confidence in the fairness and objectivity of the Court at an all time low in public opinion, since polls began in the 1930s.

This is a crisis, and Chief Justice John Roberts, who so much wants a good reputation for the Court which has its name as Chief Justice, has clearly lost control of the agenda of fairness to the hard right nastiness and narrow mindedness of Clarence Thomas and Samuel Alito, each being appointed by the first President Bush and the second President Bush.

The Report on the Dobbs v. Jackson Women’s Health Organization “Leak” is a farce, as the members of the Court were not put under sworn testimony as Court staff was, and no result as to how the leak occurred has been concluded, which seems like a coverup!

This will reflect over time in rankings of the Bush Presidencies, as constitutional law has been distorted by the decision of the Court to reverse abortion rights of nearly 50 years standing, after its members did not indicate in their confirmation hearings that they wished to void the basic right of privacy that has become part of the history of America since the Warren Court of the 1950s and 1960s!

The Supreme Court Opens Its Most Controversial Term In Decades!

Today is the opening day of the Supreme Court term, and it likely will be its most controversial term in decades.

With a solid right wing tilt of six Justices, the Court seems likely to go against public opinion on many areas of constitutional law, including

Affirmative Action
Gay Rights
Voting Rights
Environmental Regulations
Religion
Free Speech
The Powers of State Legislatures

Public opinion image of the Supreme Court has dropped dramatically, and there have been massive negative reactions to the Dobbs v Jackson Women’s Health Organization decision in late June which declared abortion unconstitutional, nearly 50 years after Roe V Wade was decided in 1973.

The minority liberals on the Court, specificially Sonia Sotomayor and Elena Kagan, have been very outspoken in their criticism of the extremist agenda of the present Court, the most conservative, by far, since the 1920s!

There is much to fear as basic constitutional rights are being eliminated, it seems, with glee, led by Justice Samuel Alito (appointed by George W. Bush) and Clarence Thomas (appointed by George H. W. Bush), but joined in by the three Donald Trump appointees (Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett) in most decisions, leaving Chief Justice John Roberts almost as an outsider, having little impact on trying to tame, to some extent, the rightward swing of the Court!

The only good news is the coming to the Court of Ketanji Brown Jackson, the first African American female in the history of the Supreme Court, and the fact that all three liberals now on the Court are women, along with Amy Coney Barrett.

But the future of constitutional law is in danger from the extremist agenda of the majority, an alarming situation!

The Republican Party Is More Horrendous Than Ever!

It is hard to believe, but the Republican Party in Congress is more horrendous than ever before!

A party which used to have a substantial number of moderate Senators in the past has gone totally nuts!

Yesterday, this author and blogger condemned the handling of the Supreme Court nomination of Judge Ketanji Brown Jackson by Republicans on the Senate Judiciary Committee, including Josh Hawley, Ted Cruz, Mike Lee, Lindsey Graham, and Tom Cotton.

Now Marsha Blackburn is added to that list making fools of themselves in the hearings.

But even outside of that issue, now we have Indiana Senator Mike Braun who says that Interracial Marriage, declared constitutional in Loving V Virginia in 1967, should never have been accomplished by the Supreme Court.

This is part of setting constitutional law backwards, along with the threat to abortion rights Roe V Wade (1973), and Griswold V Connecticut (1965), which promoted the constitutional right to sexual privacy and legalized contraception for married couples.

Although Braun now has backtracked, it is clear that leave it to the Republicans, and they would interfere with the privacy rights of Americans, not only interracial marriage, abortion, and contraception, but also gay marriage, if given the opportunity.

This is right wing totalitarianism, denial of basic human rights, and going back to the years before the Warren Court (1953-1969) and forward!

The Attack On Birthright Citizenship And The 14th Amendment By Donald Trump, Mike Pence, And Lindsey Graham

Donald Trump has opened up a new area of attack on constitutional law, claiming that he can, by executive order, end birthright citizenship for infants born of undocumented immigrants, bypassing the 14th Amendment’s guarantee of citizenship for all born in the United States in 1868, exactly 150 years ago.

Speaker of the House Paul Ryan, for once, is correct when he says that is not possible legally, as executive orders cannot end what is in the Constitution or its amendments.

It is also a fact, despite some, like Vice President Mike Pence, and South Carolina Senator Lindsey Graham who claim otherwise, that legislation by Congress also cannot end what is in the Constitution or the amendments.

The only way to change what is in the Constitution or its 27 amendments is by another constitutional amendment, as occurred when the 18th Amendment banning liquor (Prohibition) was passed in 1919 and fourteen years later, with much discontent, the amendment was repealed by the 21st Amendment, the only way Prohibition would ever have ended.

If it was that easy to change what is in the Constitution or its amendments, then there would be a move to end the Electoral College, but that will never happen legally unless an amendment is passed by two thirds of each of the two houses of Congress, and three fourths of the states’ legislatures (38 out of 50).

The idea that Lindsey Graham is suddenly a great friend of Donald Trump, after the way that Trump trashed his good friend, the late Arizona Senator John McCain, is infuriating. One can be certain that McCain would fight this idea that Trump has suggested that he has the authority, all on his own, to destroy the language of the 14th Amendment. It is certain that McCain would be angry at Graham for his changed behavior, and it makes one wonder what is going on in Graham’s disturbed mind that he does not know the basic reality of constitutional law.

Of course, those on the Right would say the Supreme Court could justify what Trump wishes to do, and in theory, a lawless Court, which has already made decisions clearly and purely political in the last ten years, could by a 5-4 vote, including compromised Justice Brett Kavanaugh, do such. But it is hard to imagine that Chief Justice John Roberts would wish to be part of a majority that would undermine his reputation and that of his Court in the long run of history.

If such a disgrace were to happen, the Supreme Court would lose its credibility for all time, and would be helping Donald Trump to destroy our democracy, and impose an authoritarian dictatorship on our nation.

There is absolutely no moral or ethical way that this could happen, and be allowed to stand!

And also, the thought that an infant would not have the opportunity for a good life in America, simply because his or her parents were not documented at the time of his or her birth, is to deny the whole point of the Statue of Liberty and Ellis Island, and the reality that tens of millions of immigrants, and not all legal, with many “slipping in” through our borders and not realized what they had done, contributed to our nation’s greatness.

Think of the refugees from Cuba and Vietnam who came to a nation welcoming them from their personal tragedies in the past half century, and think of the refugees who came from all over the world over two centuries to a nation that gave them a chance to succeed and prosper, and benefit all of the American people!

Christine Blasey Ford Spoke For All Women, And Men, Who Have Been Sexually Abused, And Brett Kavanaugh Proved He Is Unfit For Supreme Court

The testimony of Christine Blasey Ford was gripping and convincing, and she proved to be so genuine that even Republicans avoided attacking her, and Donald Trump stated words of praise for her performance.

At the same time, Republicans and Donald Trump called for moving forward on Brett Kavanaugh’s confirmation to the Supreme Court, until two courageous women confronted Arizona Senator Jeff Flake in a Capitol Hill elevator, and convinced him to call for time out, and an FBI investigation to be conducted, which now is moving forward.

Christine Blasey Ford was articulate, and her education and career as a college professor of psychology gave her the ability to overcome her nervousness at speaking before the Senate Judiciary Committee. She knows how to speak, how to deliver ideas and points, but even this professor, the author and blogger, as much as he can speak before hundreds of people, wonders if he could do as fine a performance if he had to face a Senate committee.

Imagine if Christine Blasey Ford was NOT a professor, but rather one of millions of ordinary women, not educated, not professional, not having the kind of family and moral support that she had.

Imagine if it had been a poor, minority woman, someone not good at expressing herself, or had been a man of similar lack of education and speaking ability and economic station, who had been abused as boys and men also are, and terrified to speak out, even including those who are gay or lesbian, and suffer sexual abuse every day, and yet remain silent.

Those people, men and women, who dispute CHristine Blasey Ford for waiting so many years, look at the case of Bill Cosby, or look at the cases of the men abused by the Catholic Church over decades, or look at the women abused by their mother’s boyfriends or their stepfathers, which happens so often after failed marriages.

Those men and women who have no heart, no concern, and always back white male privilege, and powerful male privilege, reveal themselves for what they are: despicable, disgraceful human beings who have no compassion, no empathy, no concern for anyone unless they are wealthy, white males, and whose wives who go along with them, reveal they have no minds of their own, and are “Stepford Wives”, who do not realize they are being manipulated by their dominant husbands who most likely are cheating on them. There is so much domestic abuse that never is reported, or is overlooked historically by legal authorities, when it is reported by courageous victims.

Brett Kavanaugh proved in his tirade against Democrats and Senators on the Judiciary Committee, that he is unfit for a lifetime position on the Supreme Court, and that he is too partisan and too supportive of Donald Trump, to be an objective, open minded member of the high Court, His drinking problem is a severe one, and he is too cocky, and self serving, much like Donald Trump, to have so much power and authority over Constitutional law for the next thirty to forty years. His performance was a disgrace, that should open the eyes of the eight members of the Court for lack of dignity and decency, and the American Bar Association and other groups which had endorsed him, have withdrawn their support.

It is time for decent Republicans, including Jeff Flake, Susan Collins, Lisa Murkowski, Bob Corker, and Ben Sasse to show they have guts and principle, and reject this nomination!

The Argument For 18 Year Terms For Supreme Court Justices In The Future To Insure Constitutional Stability

The controversy over Supreme Court nominee Brett Kavanaugh is a time to consider modifying the Judiciary Act of 1789, and end lifetime terms, and change to a maximum of 18 years on the Court for any future Supreme Court Justice.

It would insure in the future that we would have two Supreme Court appointments in any Presidential term, with the limit insuring turnover, rather than locking in a one sided Supreme Court, which can distort constitutional law and interpretation in a detrimental fashion.

Right now, in 2018, we have the danger of locking in a five member right wing Court that could last for 20-30 years, and the Court should, ideally, be a balanced Court, with some liberals, some moderates, and some conservatives, which normally was the way it was most of our history, but now seems a distant dream.

While there is an argument for longer terms, based on specific Justices being considered significant and admired by many, it still makes sense that we have a maximum of 18 years on the Court, and that way, the likelihood of having Justices at advanced ages, in the late 70s and early 80s, is much less likely to occur.

And one must realize that since most Justices come in modern times from the Circuit Courts, it means the average Justice would have a long judicial career, and if coming from an executive or legislative branch background, rare but has occurred in the past, that a Justice’s total career in public service will have been a long one.

Chief Justice John Roberts To Become The New Balance On The Future Supreme Court?

Chief Justice John Roberts has been on the Court for 13 years now, and he is generally perceived as a conservative.

But he has surprised some conservatives, as when he kept ObamaCare (the Affordable Care Act) alive in 2012.

Also, Roberts has often stated by the doctrine of “Stare Decisis”–to stand by things decided”–although he has not been consistent on this over the years.

The odds of Roberts siding with the liberals on the Court for the image of the Court named after him as Chief Justice, is a thin measure of what kind of balance he might present on the future Supreme Court.

It seems likely that on balance, he will be “number 5”, in the middle, but that middle will be much farther to the Right than Anthony Kennedy or Sandra Day O’Connor represented.

But then again, Justices have surprised their Republican Presidents who appointed them, as with Earl Warren and William Brennan under Dwight D. Eisenhower; Harry Blackmun under Richard Nixon; John Paul Stevens under Gerald Ford; O’Connor and Kennedy under Ronald Reagan; and David Souter under George H. W. Bush.

The best estimate is that no one should count on John Roberts avoiding “his” Court from being regarded as the most right wing, conservative Court since the time of Warren G. Harding. Calvin Coolidge, and Herbert Hoover nine decades ago, before the Great Depression and New Deal began the transformation of constitutional law.

Alan Dershowitz Supports Donald Trump, While Laurence Tribe Warns Of Danger He Presents: Why The Split Over Trump?

Alan Dershowitz is a renowned law professor, and so is Laurence Tribe.

But Dershowitz sees Donald Trump as not having done anything that is impeachable, while Tribe has said that Trump could be impeached or indicted while in office, and is a danger to the Republic.

How can two renowned Harvard Law School professors have diametrically opposite views of Constitutional Law?

One could say that any two experts can disagree on constitutional matters, since there can be honest differences of viewpoint.

But when one looks closer at the two men’s careers, one can start to understand that Dershowitz has long been a gadfly, who often seems to revel in publicity and attention, even if it is based on notoriety. He has often been involved in major controversies, and in many ways, he is the Donald Trump of the legal profession, a real character who has elements of egotism and narcissism in his basic DNA.

On the other hand, Laurence Tribe has had a distinguished respectable career speaking up for progressive values, but avoiding the constant limelight that Alan Dershowitz revels in on a regular basis.

When the history of the Trump Presidency is written in the future, Alan Dershowitz will not look credible and respectable, but Laurence Tribe will have dignity and principle as the basis of his entire life.

2017 Horrible Year Of Reversal, In Many Ways The Most Tragic Year For America Since 1968!

In the past half century, since the tumultuous year of 1968, acknowledged by many scholars and experts as the most significant single year in American history since 1945 (the end of World War II), America has gone through much turmoil and tragedy. This includes Richard Nixon and Watergate; the end of the Vietnam War; the rise of terrorism in the 1990s, leading up to September 11, 2001; two other unwinnable wars in Afghanistan and Iraq; and the Great Recession of 2007-2009, which finally has led to full employment and an economic revival after nearly ten years, but with many Americans left behind.

It has also been a fifty year period of much progess toward civil and human rights amid massive social change , with the Barack Obama years being seen as a positive time in so many ways.

But now, 2017 has revealed that we are in a dramatic retreat from much of the reform and change that has gone on since 1968, and the nation and the world are in total chaos and anarchy, due to the rise of a truly Fascist wannabe, Donald Trump, who has clearly stolen the Presidential election of 2016 and is in process of destroying all of the positive changes of the past 50 years.

Domestic and foreign policy, and constitutional law is in revolution, and 2018 will likely be a continuation of the nightmare of 2017, but with the hope that at least Donald Trump will be forced out of office in some manner, not yet clear.

But the likelihood that Vice President Mike Pence will become the 46th President sometime in 2018, bodes ill for the future, with his extreme right wing evangelical conservative beliefs, which would make him more conservative and extremist than even the most conservative Presidents of the past century, Calvin Coolidge and Ronald Reagan.

So we who are progressives have a lot of work to do next year to attempt to bring America back from the brink of destruction perpetrated by a man who is the most evil President in American history; and a party which has tarnished the reputation historically of Abraham, Lincoln, Theodore Roosevelt, Dwight D. Eisenhower, and so many others who proudly carried the Republican mantle in the past 150 years until now.

It is time for progressives to fight with all their energy and strength to return this nation to the great advancements promoted by a century of Presidents and Congresses from the time of Theodore Roosevelt to Barack Obama.

The End Of The Supreme Court Term: Any Retirements Coming?

This is the last week of the present Supreme Court session, and Court watchers are wondering if we are about to see a sharp swing to the Right, with the potential retirement of Justice Anthony Kennedy, appointed by Republican President Ronald Reagan nearly 30 years ago, and a crucial swing vote ever since on the Court.

Kennedy has been on the conservative side about two thirds of the time, and on the liberal side one third of the time, and without him, for instance, there would have been no advancements on gay rights and gay marriage, as he was the crucial fifth vote.

His vote this week may decide whether the Muslim ban of Donald Trump is upheld, or prevented, as it has been by several circuit courts around the nation.

Kennedy has been the unpredictable vote all by himself in the past decade, since Sandra Day O’Connor left the court at the end of 2005.

For a decade before 2005, it was said the Court was the “O’Connor-Kennedy Court”, and now for the past 12 years, it has been the “Kennedy” Court, more than the Roberts Court, as traditionally, the Court is described by the name of its Chief Justice.

Since Kennedy will be turning 81 in one month, and is the second oldest member of the Court, after Ruth Bader Ginsburg, who is 84, but has made clear she is going nowhere, and hopes to stay on the Court until 2021, so that hopefully a future Democratic President in 2021 can choose her successor.

So if Kennedy does retire this week, it will mark a sharp move to the Right, which will undermine constitutional law for the next generation!