David Souter

Supreme Court Has Waged An Extremist Right Wing Attack On Women!

In 1973, Roe V Wade, giving women the right of abortion, was decided by a 7-2 vote, including five Republican Supreme Court Justices: Harry Blackmun, Chief Justice Warren Burger, William Brennan, Potter Stewart, Lewis Powell.

In 1992, Planned Parenthood V Casey, was decided by a 5-4 all Republican vote, including Republican Supreme Court Justices Sandra Day O’Connor, Anthony Kennedy, David Souter, John Paul Stevens, Harry Blackmun.

The draft opinion on abortion, written by Justice Samuel Alito, and said to have a 5-4 vote, was leaked last night, and it is an extremist right wing attack on women, taking away completely the right of abortion, including even having no exceptions for rape, incest, or life of the mother!

If this draft opinion is not changed by the end of the Supreme Court term, it has declared war on a woman’s ability to control her own body, and will lead to increased deaths by botched abortions, as was the case before 1973!

This bombshell report of what is likely to happen flies in the face of more than 70 percent of public opinion being in favor of abortion rights being retained after nearly 50 years of that right being affirmed!

Also, the fact that four of the five Supreme Court Justices in the majority of this opinion were chosen by Presidents who LOST the popular vote–George W. Bush in 2000 and Donald Trump in 2016–is very disturbing!

Also, the Republican denial of the appointment of Merrick Garland in 2016, while allowing the appointment of Amy Coney Barrett in 2020, both election years, but a double standard on appointment, is outrageous!

The concept of established law, “Stare Decisis”, and “precedent” as part of Supreme Court history may be going by the wayside with this extremist Court!

And poor women, and particularly minority women, will be the ultimate victims, and poverty and abuse will become the norm more than ever!

Only about 25 nations ban abortion, and most of the Western world will look at the United States as a pariah on women’s rights, if this Court decision goes through, as there are already plans for the Republicans to try to promote a nationwide ban on abortion if they control both houses of Congress and the Presidency in the future!

The need for the vast majority of women, and men who understand the importance of preserving the rights of women to control their own destiny, to become engaged in the midterm elections six months from now, is urgent!

The Supreme Court Reputation Reaching An All Time Low

The US Supreme Court is in a crisis, as its reputation in public opinion polls, and among Supreme Court “watchers”, is reaching an all time low, not matched since the late 1920s and early 1930s.

The Court has never been as right wing in substance as it is now, since a century ago, and even going further back to the late 19th century Gilded Age era.

The Supreme Court’s reputation was glowing in the time of the Warren Court (1953-1969) and even moving forward to the Burger Court (1969-1986), and still having an image of balance in the era of the Rehnquist Court (1986-2005).

This was due to the reality that many Republican appointees to the Court, including the following, avoided hardline conservativism:

Eisenhower–Earl Warren, William Brennan
Nixon–Warren Burger, Harry Blackmun
Ford–John Paul Stevens
Reagan–Sandra Day O’Connor, Anthony Kennedy
HW Bush–David Souter

These eight Justices made a massive difference in enunication of Supreme Court opinions.

Sadly, George H W Bush’s appointment of Clarence Thomas, and George W. Bush’s selection of Samuel Alito, veered the Court far to the right, and Donald Trump’s three appointments—Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett—have continued that trend.

The fact that Thomas and Kavanaugh have been connected to accusations of sexual harassment, and that Alito, Gorsuch, Kavanaugh, and Barrett were chosen by Presidents who lost the national popular vote, and that Gorsuch took a seat that was meant for Barack Obama’s nominee, Merrick Garland, and that Barrett was confirmed for the Court less than two weeks before the national election—only adds to the fury and disgust felt about the Supreme Court!

This has, reportedly, disturbed Chief Justice John Roberts (2005- ), whose historical reputation is being damaged, as he has moved, personally, from being conservative to attempts to create a moderate balance on the Court. Sadly, it is not working, so there are some rumors that he might retire from the Court after 17 years as its leader, as that is about the norm for most of the 17 Chief Justices in Amerian history, with the exception of John Marshall (1801-1835) and his successor, Roger Taney (1836-1864).

That would be a major step forward, to retire, and allow Joe Biden to pick a Chief Justice, which has not happened for a Democratic President since Harry Truman in 1946!

Associate Justice Neil Gorsuch A Surprise On The Supreme Court

With the third term of Neil Gorsuch on the Supreme Court now complete, one must say that Gorsuch is quite a surprise in his decisions on the Court, startling many conservatives, and pleasing progressives.

It is clear that Gorsuch is, and will continue to be, unpredictable on the Court, and already, he joins Chief Justice John Roberts in siding with liberals on some cases before the Court.

He has already made observers compare him to former Justice Byron White, and even by some to former Justice David Souter.

This means that the idea that are five rigid conservatives on the Court now looks more like four liberals, three conservatives, and some of the time two “swing” Justices, mostly conservative but totally unpredictable, and therefore, not reliable all of the time for the conservative camp.

It was wonderful to see Gorsuch side with native Americans in declaring that eastern Oklahoma is native American territory, although it is not clear what that means in reality to Oklahoma’s future.

His backing of gays and lesbians having employment rights guaranteed under the Civil Rights Act of 1964, joined by Chief Justice Roberts, may be one of the most important cases in many years.

The at times unpredictability of both Gorsuch and Roberts makes following the Supreme Court much more fascinating, for sure!

The Unpredictable Supreme Court Due To Republican “Maverick” Appointments

The history of the Supreme Court since 1953 has been one of unpredictability, due to Republican “Maverick” Appointments, who surprise conservatives who thought having a Republican President insured their narrow minded views of the Constitution and the law.

America has been fortunate that every Republican President from Dwight D. Eisenhower to Donald Trump has made an appointment that surprised the nation, and promoted social progress long term.

Eisenhower appointed Chief Justice Earl Warren and Associate Justice William Brennan.

Richard Nixon appointed Chief Justice Warren Burger and Associate Justice Harry Blackmun.

Gerald Ford appointed Associate Justice John Paul Stevens.

Ronald Reagan appointed Associate Justices Sandra Day O’Connor and Anthony Kennedy.

George H. W. Bush appointed Associate Justice David Souter.

George W. Bush appointed Chief Justice John Roberts.

Donald Trump appointed Associate Justice Neil Gorsuch.

So ten appointments in the past two thirds of a century have made a dramatic difference in so many ways, including racial integration, school prayer, abortion rights, ObamaCare, gay rights, and other significant areas.

The Death Of The 41st President, George H. W. Bush, At Age 94

This blogger woke up this morning to the news that the 41st President of the United States, George H. W. Bush, had died last night (November 30) at age 94, and five and a half months.

He had the longest life span of any President, although former President Jimmy Carter will surpass him in age on March 22, 2019.

Bush was one of the most experienced Presidents, with a tremendous resume particularly on national security and foreign policy issues. This included being a Houston, Texas, Congressman; United Nations Ambassador; Republican National Committee Chairman; Second Chief of the Liaison Office to the People’s Republic of China; Central Intelligence Agency Director; Vice President of the United States for two terms under President Ronald Reagan; and President of the United States for one term from 1989-1993.

Bush was an honorable, decent man, who knew his own shortcomings and admitted to it, but although he was the first Vice President to succeed his President by election since Martin Van Buren in 1836 after Andrew Jackson, he was unable to win a second term, losing to future President Bill Clinton, in an election which included businessman Ross Perot, who managed as an independent candidate to win 19 percent of the vote. This led to Bush having the second worst defeat for a sitting President, with 37 percent, only ahead of President William Howard Taft in 1912, gaining only 23 percent of the vote in a three way race with Woodrow Wilson and Theodore Roosevelt.

Bush will be best remembered for his leadership in the Persian Gulf War of 1991 against Iraq’s Saddam Hussein; his helping to end the Cold War with Soviet Union leader Mikhail Gorbachev and usher in the unification of Germany; the promotion of the North American Free Trade Agreement with Mexico and Canada; the concept of a “Thousand Points of Light” to encourage local activism to solve problems; the signing into law of the Americans With Disabilities Act of 1990 to provide equal opportunity for those Americans with disabilities; and the appointment of two Supreme Court Justices, David Souter and Clarence Thomas.

His decision to support tax increases caused a challenge by conservatives, led by Pat Buchanan, in the primaries of 1992, which he overcame, but that plus the recession America was suffering at the time of the election, along with the challenge of not just Bill Clinton, but Ross Perot, making the campaign a three way race, led to his defeat.

Bush lived to see his son George W. Bush become President, only the second such situation, after John Adams and John Quincy Adams, and he had nearly 26 years of retirement, and the longest Presidential marriage, until his beloved wife Barbara died in April, after 73 plus years of a devoted couple, who brought up five children.

Bush is ranked near the middle of all Presidents, generally between 17 and 20, depending on the poll of 44 Presidents, with his failure to win a second term a factor in why he has not risen higher.

His impact on America, however, has been massive, and it is likely his ranking among Presidents will rise in the coming years.

The Long Term Crisis Of Supreme Court Legitimacy Could Tear This Nation Apart Over Next Few Decades

The US Supreme Court is entering a period which could tear this nation apart over the next few decades.

Here we are in the 21st century, and yet, the Supreme Court could be taking us back to the late 19th century Gilded Age in its constitutional decisions. Now there is a solid five member conservative majority, with the confirmation and swearing in of Brett Kavanaugh, the most contentious nominee with the closest vote in the Senate since Stanley Matthews’ appointment by President James A. Garfield in 1881.

Matthews served nearly eight years on the Supreme Court, having been nominated by President Rutherford B. Hayes, but seen at the time as too much of a “crony” of the President, so his nomination was withdrawn, but resubmitted by President James A. Garfield in 1881, and confirmed by the closest margin in history, 24-23, but with Kavanaugh the second lowest ever vote 50-48. This was the only Supreme Court appointment of Garfield, who had only served four months, when he was shot and mortally wounded by an assassin, and died in September 1881.

The concern about fairness on the part of Brett Kavanaugh however was not the same as Stanley Matthews, who was the majority opinion author in a case involving discrimination against Chinese laundries and their owners in San Francisco, with the case being Yick Wo V. Hopkins, enforcing the Equal Protection Clause of the 14th Amendment. This was a step forward at a difficult time, in the year 1886, although the government had passed into law the Chinese Exclusion Act of 1882.

We could only hope for the kind of open mindedness on the part of Brett Kavanaugh, as occurred with Stanley Matthews’ authorship of this case, which gives him stature in Supreme Court history.

We have had Republican appointments in the past, who turned out to be surprises, including:

Earl Warren and William Brennan, appointed by Dwight D. Eisenhower

Harry Blackmun, appointed by Richard Nixon

John Paul Stevens, appointed by Gerald Ford

Sandra Day O’Connor and Anthony Kennedy, appointed by Ronald Reagan

David Souter, appointed by George H. W. Bush

It would be a miracle at this point if Brett Kavanaugh were to travel the same road.

In a nation becoming more minority over the next decades, and with young people and women and college educated people veering to the left, while the Supreme Court veers dramatically to the Far Right, the question is whether civil disorder is not in the making, creating a crisis atmosphere in the future decades, exactly what America’s enemies are hoping for.

Supreme Court Justice Predictability Not So: Nine Cases From Felix Frankfurter To David Souter

As the hearings continue on the nomination of Circuit Court Judge Brett Kavanaugh to the Supreme Court, the question has arisen over whether Supreme Court Justices are predictable in their evolution on the Court.

The argument is that most Supreme Court Justices are “pegged” when they are considered for the Court, and do not disappoint the President and the party which nominated them for the Court.

But history actually tells us that there are quite a few exceptions to this perceived thought.

Felix Frankfurter (1939-1962), appointed by Franklin D. Roosevelt, migrated from an earlier liberal, almost radical view, to a clearly conservative view, disappointing many Democrats in the process.

Earl Warren (1953-1969), appointed Chief Justice by Republican Dwight D. Eisenhower, and thought to be a conservative oriented person, turned out in the mind of many Republicans “a flaming liberal”, totally surprising Eisenhower and many pleased Democrats and liberals.

William Brennan (1956-1990), appointed by Eisenhower, and a rare Catholic on the Court, and thought to be a conservative, turned out to be even more liberal in his jurisprudence, and lasted twice as long as Warren on the Supreme Court, stunning many conservatives and Republicans.

Byron White (1962-1993), appointed by John F. Kennedy, was thought to be a liberal, but was a consistent conservative in his years on the Court.

Harry Blackmun (1970-1994), appointed by Richard Nixon, started off as a conservative, along with his so called “Minnesota Twin” and colleague, Chief Justice Warren Burger, but veered sharply left more and more, diverging dramatically from Burger as the years went by, and honored by liberals as a great Supreme Court Justice.

John Paul Stevens (1975-2010), appointed by Gerald Ford, was thought to be a moderate conservative, but dramatically moved left in his jurisprudence, and remained on the Court for 35 years, third longest of any Justice in history, retiring at age 90, but still active at age 98 (the longest lived Justice ever), and still promoting liberal viewpoints.

Sandra Day O’Connor (1981-2006), appointed by Ronald Reagan as first woman on the Court, turned out to be far less conservative, veering toward the center, and seen as a balance on the Court, unpredictable during her tenure on the Court.

Anthony Kennedy (1988-2018), appointed by Reagan, and just retired, thought to be a hard line conservative, turned out to be the second “swing” vote with O’Connor, and then the true “swing” vote on the Court, joining the liberal side one third of the time.

David Souter (1990-2009), appointed by George H. W. Bush, was thought of as moving the Court to the Right, after William Brennan retired, but many Republicans and conservatives were severely disappointed in his unpredictability, and often his siding with the liberal view on many issues, more than one would have expected.

Notice, however, that seven of these nine cases, all but Frankfurter and White, were of Republican appointments that turned out to be much more “liberal” than one might have imagined, with only Frankfurter and White turning out to be more “conservative” than perceived at the time of their nominations to the Supreme Court.

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.

Neil Gorsuch On Supreme Court A Fateful Turn To The Right, Unless He Surprises, As Other Republican Appointments In Past Have Done

Seven Republican appointments to the Supreme Court since 1953 turned out to be less conservative than expected, so the question that arises, as Neil Gorsuch, appointed by Donald Trump, becomes the 113th Supreme Court Justice in American history is, will Gorsuch follow that lead?

At this point, it seems highly unlikely, but there is no way to know how a person on the Court, who potentially could be there for 35 years, until 2052, will react as cases come before him. If he has an open mind, he could surprise us, as history records for appointees of Presidents Dwight D. Eisenhower, Richard Nixon, Gerald Ford, Ronald Reagan, and George H. W. Bush prove.

Chief Justice Earl Warren and Associate Justice William Brennan, appointments of Eisenhower, thought to be conservatives, turned out to be path breaking liberals on the Court.

Associate Justice Harry Blackmun, appointed by Nixon, proved to be the same, as did John Paul Stevens, appointed by Ford.

Associate Justices Sandra Day O’Connor and Anthony Kennedy, chosen by Reagan, proved to be the swing vote,often siding with the liberal side of the Court, despite their generally conservative bent.

And David Souter, appointed by the first Bush, also proved to be a surprise on his vote much of the time.

So we will see over the next few years if Neil Gorsuch surprises.

The Changing Supreme Court In 2017: A Move To The Left That Will Last To The 2040s Or Beyond!

With the reality that Democrat Hillary Clinton has a clear lead for the Electoral College, the likelihood of a liberal majority Supreme Court seems more certain in 2017 and beyond.

News that Justice Clarence Thomas might retire at age 68 in the next year is encouraging in that regard, but even if he does not, as his wife has just contended, the likelihood is of FOUR appointments to the Court outside of Thomas, with two of them (Antonin Scalia dead and Anthony Kennedy retiring) being a movement to the left, making at the least a 6-3 Court by 2020. If Thomas also leaves, it would be a 7-2 Court, which would have a long range effect to the 2040s or beyond!

The Supreme Court has had a Republican and conservative majority for 44 years, since 1972, so it is about time to right the balance and make for a revival of the Chief Justice Earl Warren Court, which had an effect for 16 years, and continued to influence, if not control the Court, with the extended service of Justice William Brennan and Justice Thurgood Marshall.

Fortunately, Justice Harry Blackmun, Justice John Paul Stevens, and Justice David Souter, all appointed by Republican Presidents, often joined the few liberals left on the Court, and prevented the Court from going even further Right than it did in those 44 years.

But there is a desperate need for a tilt to the left on so many issues, so that is the most important reason for the election of Hillary Clinton to the White House in November!