Elena Kagan

The Future Democratic Party Majority On The US Supreme Court

Ronald 3 Comments

When one looks at the Supreme Court in recent decades, it is clear that it has been a conservative Supreme Court, dominated by Republican appointments, and it has shown in such decisions as the Citizens United Case of 2010, and the partial repeal of the Voting Rights Act in 2013, along with numerous other such cases tilted to the right side of the political spectrum.

So for progressives and Democrats, it has been a difficult time, wondering how the Supreme Court can be returned to the glorious era of the Warren Court and Burger Court from 1953-1986.

But there is the reality that the Supreme Court’s future for the Democratic Party and progressivism is very bright over the next decade, assuming what seems highly likely, that Hillary Clinton, Joe Biden or some other Democratic Presidential nominee will have the electoral college advantage for 2016, and likely for the following 2020 Presidential election.

If indeed the Democrats keep the White House beyond 2016, time and age will turn the Court into a majority Democratic Party appointed Court for sure!

History tells us this fact: If a party keeps control of the White House for an extended period of time, the Court becomes more than ever reflective of that political party.

So, for example, from 1933-1953, we had 20 years of Franklin D. Roosevelt and Harry Truman in the White House, and a total of 13 Supreme Court appointments, all by these two Democratic Presidents, helping to shape the future Court, with a few “liberal” appointments by Republican President Dwight D. Eisenhower (Earl Warren and William Brennan), insuring a continuation of that trend.

But it can be said that from 1953-2013, sixty years of history, the Republicans held the White House for a total of 36 years to the Democrats’ total of 24 years.

In those 60 years, the Republican Presidents made 18 appointments to the Supreme Court, to the Democratic total of just 8 appointments, more than a 2-1 majority. While Republican appointments included Warren, Brennan, Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, and David Souter, all quite liberal appointments, even so it still meant that 12 Republican appointments were quite conservative or VERY conservative, so the Supreme Court represents a strongly Republican flavor.

But now, we have four aging Supreme Court Justices–Ruth Bader Ginsberg (80 this year), Antonin Scalia (77 this year), Anthony Kennedy (77 this year), and Stephen Breyer (75 this year), and to believe that by 2020, that any or all of these members of the Court will be still serving, seems quite unreasonable, as they would be ranging between 82 and 87 by the year 2020!

And Justice Clarence Thomas, although claiming he will stay on the Court for 43 years, until age 86, would be 72 in 2020, and Samuel Alito would 70 in 2020.

No one is saying that either Thomas or Alito will have left the Court, but if the four elderly Justices have left, they would all be Democratic Party appointments if the Democrats keep the White House, highly likely, and that would mean SIX of the nine members of the Court would be Democratic appointments, including Sonia Sotomayor and Elena Kagan.

Only Thomas, Alito, and Chief Justice John Roberts would be Republican appointments in the year 2020 under this scenario!

So, for Democrats and Progressives, there is hope for a very different Court over the next decade and beyond!

Women On The Supreme Court: Their Impact Is Massive!

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So far, we have had four women on the Supreme Court in its history:

Sandra Day O’Connor (1981-2006), appointed by Ronald Reagan
Ruth Bader Ginsburg (1993- ), appointed by Bill Clinton
Sonia Sotomayor (2009- ), appointed by Barack Obama
Elena Kagan (2010- ), appointed by Barack Obama

All four have had a massive effect on the Court, and made one wonder what it would be like if the Court was made up of only women, which of course will never be the case.

However, the likelihood of more Justices who are women seems bright, and when Ginsburg leaves at some time in the future (with her being 80 years of age), it would seem appropriate to replace her with another woman.

This, of course, did not occur when O’Connor left the Court, and we ended up with Samuel Alito, a sour puss who seems hostile to all three woman Justices, and at the least, shows publicly a lack of respect for them, highly regrettable and in reality, outrageous conduct unbecoming a Supreme Court Justice!

The only hope we can have about the Court is that the women will have an insidious effect and move the conservative men toward understanding issues that affect slightly more than half the population of the nation.

Sadly, at this point, Justices Alito and Clarence Thomas seem unreachable, and so we have a schizoid Supreme Court, arguably one of the most divided in its entire history, and that is bad for the nation, and for confidence in American government!

Two Supreme Court Justices Prove To Be Disasters And Embarrassments: Clarence Thomas And Samuel Alito!

Ronald 4 Comments

It is now clear that the second Supreme Court nominee choices of George H. W. Bush and his son, George W. Bush, have turned out to be disasters and embarrassments to the Court they serve on!

Clarence Thomas was appointed by the elder Bush, and went through a tumultuous Supreme Court nomination battle, centered on sexual harassment charges by Anita Hill, and his confirmation was the closest vote of a successful nominee in decades!

He has proceeded to be an embarrassment, showing bitterness and the desire for revenge, and sullying the memory of the first African American Justice, Thurgood Marshall, who he replaced on the Court in 1991.

And a beneficiary of affirmative action, he has now, just today, compared affirmative action to slavery and segregation, an absolutely crazy comparison!

This man is inappropriate in his behavior in so many ways, including NEVER asking a question during oral arguments, the only Justice in memory to have that unfortunate distinction!

And then there is Samuel Alito, the appointment of George W. Bush in 2005, who mouthed open opposition to Barack Obama’s criticism of the Citizens United Case in his State of the Union Address in 2010, embarrassing himself and the Court!

And Alito, today, mocked fellow Justice Ruth Bader Ginsberg with gestures, including rolling his eyes, shaking his head, and looking at the ceiling. And Alito apparently has a problem with the other women Justices, Sonia Sotomayor and Elena Kagan, showing disrespect for them in open Court. As Dana Milbank of the Washington Post said today, Alito displays “Middle School antics”.

And imagine, Alito could have been the Chief Justice if John Roberts had already begun testimony to replace Sandra Day O’Connor, but before he could, Chief Justice William Rehnquist died, and President Bush decided to switch Roberts to the Chief Justice position, and so Alito replaced O’Connor as an Associate Justice on the Court! Imagine Chief Justice Alito, the sour puss and nasty personality!

So the Bushes made major mistakes in selection of Thomas and Alito, and the Court is stuck with them for many years, beyond the retirement of another conservative, Antonin Scalia, who is more intelligent, and more charming, even if often obnoxious as well!

Supreme Court DNA Ruling An Attack On Privacy Rights

Ronald 27 Comments

In a very disturbing decision, the Supreme Court on Monday, by a 5-4 vote, allowed for police to collect DNA samples whenever anyone is arrested, seeing it as equivalent of photographs and fingerprints, and allowing its collection in a national data base.

The combination of those in favor included Anthony Kennedy, who wrote the majority decision, along with Clarence Thomas, Samuel Alito, and Chief Justice John Roberts , and surprisingly, Stephen Breyer.

The four in opposition were Ruth Bader Ginsberg, Sonia Sotomayor, Elena Kagan, and surprisingly, Antonin Scalia.

The attack on constitutional rights is alarming, and the Court majority seems to have no problem with that! Again, very disturbing!

Momentous Supreme Court Month Coming Up: Gay Marriage, Affirmative Action, Voting Rights Act Cases To Be Decided

Ronald 1 Comment

The United States Supreme Court is entering its last month of the present session, and as usual, is leaving its most blockbuster decisions to the last weeks of its term.

Every June is momentous on the Supreme Court, as for instance, the upholding of the Obama Health Care Plan last June.

But this June is possibly more crucial when looking at history, as well as the issue of civil rights and civil liberties!

The most important cases are on Gay Marriage, Affirmative Action, and the Voting Rights Act of 1965.

With so much at stake, with 13 states having legalized gay marriage, and more to come in the next year, it would be wonderful if the Supreme Court went the whole distance, as it did in Loving V. Virginia on interracial marriage in 1967. It would be a major victory for civil rights and civil liberties, and stop the right wing attempt to fight gay marriage dead in its tracks! The hate mongering would go on, but if the Court ruled that two men or two women can be married, it could not be overcome by religious extremists by law!

Affirmative Action has been in effect since 1972, and remains highly controversial, but is now in danger or being ended as a method to promote the advancement of minority groups and women.

The Voting Rights Act, first passed in 1965, and renewed in 1982 and 2006, is now in danger of being curbed or ended, on the false basis that the record of Southern and other states on voting rights in the past no longer applies, but that leaves open the possibility of new voting rights violations in the future.

It is assumed that there are four votes on the Court to uphold all three cases–those of Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor, and Elana Kagan.

It is also assumed that three votes to prevent gay marriage and end affirmative action and the Voting Rights Act are certain–those of Antonin Scalia, Clarence Thomas, and Samuel Alito.

It would be a major surprise if any of these seven votes ended up differently.

The two “swing” votes are those of Chief Justice John Roberts, who has become somewhat unpredictable after, surprisingly, backing ObamaCare last June; and Associate Justice Anthony Kennedy, the true “swing” vote alone, since Sandra Day O’Connor left the Court seven years ago.

Will Kennedy side with the liberals on the Court on all three cases? It seems highly unlikely at this point, but a good bet on gay marriage at the least, but the Court could choose to decide that case in a very limited manner, not an all encompassing decision.

We shall see on all three cases very soon!

Supreme Court Bitterly Divided Over Possible Curbing Of Voting Rights Act: A Repeat Of The Compromise Of 1877 Abandonment Of African Americans!

Ronald 6 Comments

It is clear that the Supreme Court is bitterly divided over the Voting Rights Act, which is hanging in the balance after the oral arguments this week, with Justices Sonia Sotomayor and Elena Kagan strongly challenging Justice Antonin Scalia, who said the act was a “racial entitlement”, which demonstrates that Scalia has no understanding of the history of the denial of voting rights, and the need to continue to monitor what those states that have discriminated are now doing.

The Republican Party abandoned African Americans on this day in 1877, when they agreed to the Compromise of 1877, making their candidate for President, Rutherford B. Hayes President, despite the clear cut lead of Democrat Samuel Tilden in popular votes. Part of the deal was for the GOP to stop being the party that had advanced civil rights through two laws during Reconstruction, the creation of the Freedmen’s Bureau, and the passage of three amendments to the Constitution.

The southern states went ahead and continued a policy of discrimination for the next ninety years on voting, and imposing Jim Crow segregation, and the GOP, the majority party until 1932, did nothing about it, due to the deal set up in the Compromise of 1877.

After ninety years, finally, voting rights, supposedly guaranteed under the 15th Amendment, but not enforced, were restored under the Voting Rights Act, but not before civil rights marchers were beaten up, such as Congressman John Lewis of Georgia, and others slaughtered in the name of promoting civil rights in the South.

But along comes Antonin Scalia, who conveniently forgets that even Jews, and also Italians such as himself, were lynched in the South in the near century in which African Americans were denied their basic rights, including voting.

And he wants the Court to become “activist”, when that is precisely what conservatives claim they hate about the Supreme Court. And so therefore, to hell with the overwhelming vote of the Congress to extend the Voting Rights act in 2006, and let’s wipe out all progress and return us to the states “deciding” if any group can vote, instead of “guaranteeing” the right to vote, the basic element of democracy!

So just as the Compromise of 1877 brought us a President who had NOT won the popular vote, and followed through on taking the GOP out of its civil rights activism, so now, two appointments of another President, George W. Bush, not elected by popular vote, and instead put in by a partisan Republican Court including Scalia, shall repeat history and deny Africans Americans the guarantee of the right to vote granted in the 15th Amendment in 1870!

The Humanizing Of The Supreme Court By Associate Justices Ruth Bader Ginsburg And Sonia Sotomayor

Ronald 4 Comments

The Supreme Court of the United States is a very “forbidding” institution, with its marble building, opened in 1935, its arches, its tightly controlled public access, and even the robes worn by the nine Supreme Court Justices as they listen to case arguments in the Supreme Court chamber.

The Court has always been seen as an intimidating place, and historically, the Court Justices have made themselves seem distant and aloof from the general public.

But now we are fortunate to have two women on the Court who are particularly open and accessible, and even Associate Justice Elena Kagan has already become much more of a public face, joining Associate Justices Ruth Bader Ginsburg and Sonia Sotomayor in that endeavor.

Ginsburg has, for years, spoken to public school students, given interviews, and made herself the public face of the Court, and now Sotomayor, in particular, and Kagan, somewhat as well, have opened up to the public, with Sotomayor now on a book tour for her revealing autobiography, which makes it easy for average citizens to relate to her and the insecurities she felt as she went from a poor childhood in the Bronx, New York, all the way up the ladder to the Supreme Court.

So two women in particular, and even Kagan moving in that direction, opens up the Court, and it is time for the men on the Court to stop their aloofness and reserve, and show the American people that, while they make judgments on cases as they relate to the Constitution, they are still human beings with real lives and concerns that should not be withheld from public scrutiny.

It would be easier for Americans to respect our system of law and courts if there was more open access to these people, and the women on the Court have done a great service in that regard!

Momentous Day As Supreme Court Chooses To Pass Judgment On Gay Marriage!

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Today has been a very momentous day, as the United States Supreme Court has chosen to accept two cases on gay marriage, one involving the constitutionality of the Defense Of Marriage Act of 1996, and the other the validity of the passage of Proposition 8 in California, banning gay marriage.

This could be the blockbuster case of the present term, when it is decided in late June of 2013, after oral arguments in March.

This matter brings to mind the Loving V Virginia case of 1967, when the Supreme Court unanimously upheld the right of interracial couples to be able to marry, a very controversial and divisive case in the age of the Civil Rights Movement.

It should be pointed out that many Southerners and Christian religious leaders opposed interracial marriage bitterly, but once it was settled by the Supreme Court, the issue was moot.

The same opposition, heavily Southern and religiously based, is now vehemently against gay marriage, but the tides of history are going against a continuation of discrimination.

If gay marriage is accepted by the Court, after already being legal in nine states, no religious group would be required to marry a gay couple, but they could be married civilly by a judge or county clerk, or hire someone who is legally qualified to marry couples.

The belief is strong that the Court will rule at least 5-4, if not 6-3, for gay marriage rights, with the four Democratic appointments to the Court—Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor, Elena Kagan—voting for the majority, along with Justice Anthony Kennedy, and possibly Chief Justice John Roberts.

Kennedy is the key vote, but since he supported the right of gays to privacy in the Lawrence V. Texas case in 2003, and was, indeed, the decisive fifth vote, it is believed he will take a step further in support of this major step forward.

Roberts is an unknown quantity, but after his surprising vote for ObamaCare in June, it is believed he might join the majority on this significant case.

So now, ten years later, it looks likely that the Court will have evolved further, and the right of anyone to marry who they love will be guaranteed as a basic civil right.

This is basic social justice, and a majority in public opinion polls, and particularly the younger generation, support gay marriage.

No one is saying that there cannot be people who oppose gay marriage, but society does not have the right to use their prejudices and religious views to deny basic human rights to others!

The Supreme Court: The MOST Crucial Issue In The Presidential Election Of 2012!

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Plenty of attention is being paid to economic and domestic policy in the Presidential campaign of 2012.

Also, now with the Middle East crisis that erupted this week, foreign policy is, suddenly, being given tremendous emphasis.

It is right that attention is being paid to both areas of national policy, as they really matter!

But an area which still is NOT being focused on adequately, if in fact at all, is the effect of the election on constitutional matters, which are determined primarily by the Supreme Court of the United States, along with the federal circuit courts.

First, the circuit courts consistently have vacancies, even in a one term Presidency, which can have a dramatic effect on constitutional law. Also, it must be remembered that the tradition has been to appoint Supreme Court Justices from this level of the judiciary, although that was certainly not the norm in the long history of the Supreme Court.

Ultimately, however, it is the Supreme Court which is the final arbiter of the Constitution, as the nine members of the Court, once they have made a determination, rule the day, unless a constitutional amendment can be passed to overrule a Supreme Court decision, or the members of the Court, through changes of personnel, decide to revisit areas of controversy already decided by an earlier Court.

After a decade of no changes on the Court, from 1995 to 2005, suddenly, in a period of five years, from 2005-2010, there were four changes on the Court–Chief Justice John Roberts in 2005 and Associate Justice Samuel Alito in 2006 under President George W. Bush; and Associate Justice Sonia Sotomayor in 2009 and Associate Justice Elena Kagan in 2010 under President Barack Obama.

Now in 2012, there are four Justices in their 70s, who are seen as possible or likely retirees from the Court over the next four years—Associate Justice Antonin Scalia (76), appointed by President Ronald Reagan in 1986; Associate Justice Anothony Kennedy (76), appointed by Reagan in 1988; Associate Justice Ruth Bader Ginsberg (79), appointed by President Bill Clinton in 1993; and Associate Justice Stephen Breyer (73), appointed by Clinton in 1994.

By the end of the next term, if none of these four Justices left the Court, they would range in age from 77 to 83!

It seems certain that one or more will retire, or unfortunately, die, in the next four years, and who is appointing their successors, is all important for the future of constitutional law!

If Obama makes one to four appointments, it will, at the least, keep the present balance, slightly toward the conservative side, but if Mitt Romney makes the choices, it could make the Court more conservative, more to the right, than it has been since at least the 1920s, if not the Gilded Age of the late 19th century!

This is NOT a minor matter, considering the areas of criminal justice, affirmative action, abortion, gay rights, and the constitutionality of laws passed under the New Deal of the 1930s and the Great Society of the 1960s, and recent actions on health care, campaign fund raising, and many other touchy, controversial areas of policy, and of civil rights and civil liberties!

The Court could turn back a century of political, social and economic reforms, if it turns in the direction of the far Right, a danger with Mitt Romney in office!

We can expect that by 2020, if not 2016, all of the members of the Court will be those appointed in the previous 15 years, with the possible exception of Associate Justice Clarence Thomas (64), appointed by President George H. W. Bush in 1991, and stating he would not retire or leave the Supreme Court until he breaks the all time record of Associate Justice William O. Douglas, appointed by President Franklin D. Roosevelt in 1939, and serving 36 years on the Court under seven Presidents, until he left in 1975!

So this issue needs to be addressed in the Presidential debates in October, as it is an issue for voters to consider, and to recognize its significance!

Reality: No Balanced Budget For Long Time, And National Debt Will Continue To Rise!

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In the midst of all the debates about who is “better” for the country, the team of Democrats Barack Obama and Joe Biden, or the team of Republicans Mitt Romney and Paul Ryan, something is being forgotten or ignored!

There will be no balanced budget for a long time, and the national debt will continue to rise!

There is no magic potion to bring about a balanced budget, or to prevent the national debt from rising!

So whether Barack Obama or Mitt Romney is elected, one will see both the budget issue and the national debt issue continue to be a center of heated debate!

The difference is who will “benefit” from what government does–the middle class and the poor, if Obama wins; or the wealthy top two percent if Romney wins!

But it is more than that!

It is also which man will cause the national defense budget and foreign interventions to grow, adding to our burden, and it is clear that Mitt Romney, with his loose, reckless rhetoric toward Iran, Russia and China, will cause us a lot more financial burden and many more lost American military lives than Barack Obama!

And it is also what direction do we want the nation to go regarding constitutional law! Do we want more Antonin Scalias, Clarence Thomases, and Samuel Alitos? Or do we want more Ruth Bader Ginsbergs, Stephen Breyers, Sonia Sotomayors, and Elena Kagans? This will determine more of the future, economically and socially, than anything else!

It is foreign policy and constitutional law, two areas most people are ignoring, that will have a greater impact on our future than the false argument that, somehow, one or the other candidate for President will, magically, balance the budget, or stop the rise in the national debt, when neither will be able to do anything about either of those matters!