Free Speech

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
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!

A Generation Of Justice Clarence Thomas: Its Negative Impact!

Supreme Court Associate Justice Clarence Thomas has now been on the Court for a generation, and his impact is clear.

This is a man who was enmeshed in controversy when he was appointed by President George H. W. Bush to replace Associate Justice Thurgood Marshall as the second African American in the history of the Supreme Court. He was clearly the “anti Marshall”, and has remained in controversy ever since 1991.

Thomas was accused by African American law professor Anita Hill of sexual harassment, and accused liberals of a “lynching”, and only was approved by a vote of 52-48 in the Senate, the closest of the 20th century. He has, in a memoir in 2007 and before and since, continued to have bitterness and resentment toward liberals and his other critics, and said when he was confirmed that he would confound the “damn liberals” by staying on the Court for 43 years, the age he was when appointed, which would surpass Justice William O. Douglas’s 36 years on the Court, the longest in Supreme Court history. His wife strangely contacted Anita Hill last year to ask for an “apology”, which was not forthcoming, but continues to simmer in his wife’s mind after a generation.

Thomas’s wife has been involved in ethical problems as the head of a conservative organization working against the Obama Health Care law, and in other ways, working with the Tea Party Movement, while her husband is involved in decisions where his wife’s activities create ethical problems for him, although he is unwilling to react to any criticism by recusing himself from cases, as creating a conflict of interest. He does not care what his critics say!

On the Court, he is seen in many ways as the MOST conservative member, even more than Antonin Scalia in some ways. He is well liked by his colleagues, but almost never asks any questions in oral arguments before the Court. He gives lectures around the country, but avoids the news media. He comes across as bitter and odd in many ways, but also arrogant and hard to fathom.

Thomas has shown willingness to strike down case law going back decades, and sometimes even a century. He is the only one to argue for consistent return to the “original” meaning of the Constitution when it was adopted in 1789, even more than Antonin Scalia. He sees the Court as having gone the wrong way in many areas of the law, and wanting reversal of past rulings.

Thomas alone believes that states should be able to establish an official religion; believes teenagers have no free speech rights at all; believes business should not be regulated and their commercial speech and campaign activities should not be regulated; wants to strike down a key provision of the Voting Rights Act; and backs the President’s ability to hold an American citizen in prison indefinitely without charges or review by the courts.

Thomas refuses to see prisoner rights as legitimate and is against affirmative action to the extreme, even though he benefited from it himself! He spends his time only with people who agree with his hard line views, which many think is a shame, as it indicates he has a closed mind.

So Clarence Thomas continues to have a long range, in many ways deleterious effect on the Supreme Court, and probably will for close to another generation, as he predicted!

The Sharply Divided Supreme Court And The Future: Crucial Cases Coming Up!

The US Supreme Court demonstrated two tendencies in the past term just ended: Support of corporation rights at the expense of the public interest, and absolute worship of the First Amendment right to freedom of speech in ways many just shake their head at in wonderment!

But if there is controversy over some of the Supreme Court decisions of the term now over, just wait to the next session of the Court in 2011-2012!

What kinds of “hot” issues are to show up for oral argument and decision in the next term?

1. The Obama Health Care Plan’s constitutionality
2. Affirmative Action
3. Illegal Immigration
4. Gay Marriage

It seems as if no one is leaving the Court, although one would have thought that Ruth Bader Ginsberg might have retired, so it will be the same nine member, equally divided Court, with Anthony Kennedy the swing vote on many cases, deciding some of the most controversial areas of political debate in this country, and deciding if we are moving ahead, or falling back into the 20th, and maybe, the 19th century!

The Supreme Court, The Westboro Baptist Church, And Free Speech

A very significant case has been accepted for oral argument before the Supreme Court on the issue of freedom of speech and assembly, and this case really will be one of the key cases of this Supreme Court session.

Fred Phelps, the pastor of the Westboro Baptist Church in Topeka, Kansas, has very few followers, mostly his own family members, which include 13 children, 54 grandchildren, and seven great grandchildren. Phelps is an old time gospel preacher who promotes hatred of gays, and has his church followers demonstrate loudly and hatefully at the funerals and memorial services of soldiers killed in Iraq and Afghanistan. This sect has demonstrated at hundreds of locations all across the country, making the mourning of the dead much more stressful for those who attend the funerals and memorial services.

A Maryland family of a dead soldier won a multimillion dollar law suit against the church, but an appeals court reversed the verdict, and now the Supreme Court has agreed to hear the case.

Earlier, a Missouri law was negated by the high court on this specific church demonstrating at a funeral of a dead soldier, so the chances that the church will be restricted do not seem very good. But it would be the RIGHT thing to do!

Should there be limits on when and where the church can protest? As much as the author is a believer in the First Amendment, it is my feeling that the Supreme Court should limit the rights of the church to disrupt funerals and memorial processions, as a sign of decency and respect toward those soldiers who have sacrificed for their country.

The odd thing about all this is that the soldiers who are having their funerals and memorial processions barraged with hate slogans are NOT gay. But the church says the country is going to hell because it does not criminalize and ban gay behavior, so God is visiting death rightfully on our heroic soldiers fighting for our country.

In the name of decency and respect for the dead, I hope the Supreme Court orders the church members to stay far away from funerals and memorial processions–far enough away so that they are not heard or seen.

Since what the church does is provocative and promotes emotion and the potential for violence, the Supreme Court should use the Schenck case of 1919 to declare that the Westboro Baptist Church is a radical, extremist group that is a “clear and present danger”, and force it to be at least two miles from any funeral or memorial procession. Free speech and assembly stops at the border of other people’s rights, and the Court should not uphold the church, but rather honor the young men and women who have sacrificed for their country, and have a right to a dignified and respectful funeral!