EW12 on The Supreme Court

Salon (with a headline unsupported by the quote):

Warren — the highest-profile national Democrat to address the gathering here — warned attendees of a “corporate capture of the federal courts.”

… “You follow this pro-corporate trend to its logical conclusion, and sooner or later you’ll end up with a Supreme Court that functions as a wholly owned subsidiary of Big Business

I don’t refer to the 4 “liberal” justices as liberals. I like what they have to say very much, but the last real liberal on the Court was Thurgood Marshall, who left shortly after William Brennan, another real liberal. Sotomayor is the closest.

Stevens, Ginsburg, Kagan, Breyer, and Souter were all mostly defined by their unwillingness to follow the radical conservative element led by Rehnquist, but none of theme charted out new frontiers for liberalism or even left any dissents that are likely to one day turn into such a new frontier. Indeed, Justice Ginsburg declined to vote in such a manner that would have made gay marriage a constitutional right after her speechmaking about Roe v. Wade causing a “backlash.” I find this idea both boring and naive. At best, there wouldn’t have been a backlash against the court. Is that what Ginsburg cares about?

The liberals of that era, just like today’s conservatives like Thomas, Scalia, and Alito do not care about “backlash.” They care about their vision of the Constitution.

And of course, the biggest horror to issue from this court had nothing to do with Constitutional ideology and everything to do with being a Republican: Bush v. Gore.

All of this is to absolutely agree with Warren and perhaps to go further. If a liberal court is what you want, we need more Sotomayors. What we have is a right-wing court where occasionally the 4 centrist justices will peel off a swing vote to preserve common sense.



Presidents and Civil Liberties from Wilson to Obama: A Story of Poor Custodians

By Samuel Walker

Published by Cambridge University Press in 2012


This book is a history of the civil liberties records of American presidents from Woodrow Wilson to Barack Obama. It examines the full range of civil liberties issues: First Amendment rights of freedom of speech, press, and assembly; due process; equal protection, including racial justice, women’s rights, and lesbian and gay rights; privacy rights, including reproductive freedom; and national security issues. The book argues that presidents have not protected or advanced civil liberties, and that several have perpetrated some of worst violations. Some Democratic presidents (Wilson and Roosevelt), moreover, have violated civil liberties as badly as some Republican presidents (Nixon and Bush). This is the first book to examine the full civil liberties records of each president (thus, placing a president’s record on civil rights with his record on national security issues), and also to compare the performance on particular issues of all the presidents covered.

So, in addition to the “both sides do it” claims—”some Democratic Presidents”—this book is basically saying that every president ever has sucked at civil liberties.

The first president to ever uphold the standards of civil liberties demanded by civil libertarians and their dogmatic reading of the Constitution would be destroyed even if it didn’t have some disastrous consequence.

You misunderstand me if you think that I’m suggesting this is either good or bad, I’m explaining why without using the chickenshit target of the president. FDR was a great president regardless of his mistakes and Bush was a shitty one regardless of his merits.

But the job of the President isn’t really to be the civil libertarian police. Sure, you can argue, he swears to uphold and defend the Constitution and the laws, but that begs the question that the interpretation assigned to it by you is correct. So, this is what the Courts are for. The President is always going to act as a caretaker first.

Now, if some President were to stop all warrantless searches of any kind and, say, we weren’t immediately able to find 10,000 new qualified federal judges to look at all of these warrant applications and other important court business was impacted and several criminals got away, we can be pretty sure this would not be popular.

Only a rare few would give the President credit for being such an upholder of the Constitution. Every President knows this.

So, if it’s an egregious case the courts will do their job and make it right. But expecting the President to be a leader on these issues is to ask the president to sign his own political death warrant.

Therefore again you must pick the candidate that will make the best selections to the courts.

How much they hate Obama

Republicans will even vote against killing Arabs if it’s something Obama is for. Though I usually find them as annoying as private school college freshman, TAP does have a point on this: maybe Obama should say that he opposes single payer health care.

Maybe Obama should say that the proposal to charge zero interest on student loans and reconfigure them to 10 cents on the dollar payable over 100 years is a threat to the American way of life.

Regime Change

A term too associated with Iraq, and for some reason people think it’s totally great to just kill a bunch of people on the battlefield but not the war criminal, crime-against-humanity committing people who order them.

But don’t be surprised if Assad finds himself in the path of a Tomahawk*


*Tomahawks apparently preferred over drones too.

FAQ On Declaring War

A case of high school civics gone awry in the popular imagination.

Q: Korea and Vietnam were unconstitutional because there was never a declaration of war, right?

A: Nothing in the Constitution requires that hostilities be accompanied by a document entitled “Declaration of War.” Even in the most expansive reading of what this process requires, it is Congressional assent. One could argue that by funding the conflicts, Congress gives consent. And since this is something a court will never decide, that’s pretty much all there is to it.

Q: But the country can’t engage in hostilities without a declaration of war, right?

A: Wrong. A “declaration of war” is a term of art in international law. By declaring it, you’re putting certain people on notice of things you’re going to do, like, say, sink their ships, detain their nationals, and so on. It is not the case that the President can’t use military force without one. Since the beginning of the Republic that has been the case. Adams, Jefferson, and Madison all used the military without a declaration of war. Use of the military goes back almost as far without any kind of congressional authorization, especially if you count uses of the military against Indians, which, I have no idea why you wouldn’t.

Q: Can’t Congress impeach the president for this? or for not following the War Powers Act?

A: Sure. Congress’s ability to impeach the president only requires that a vote be held. It’s not invalid if they don’t specify a statutory high crime or misdemeanor, because no court will test it, and they might do so on the pretext of the War Powers Resolution/Act, but there’s not much doubt that, strictly speaking, that resolution is unconstitutional, but it provides a guideline for where Congress thinks they should come into play. Its constitutionality doesn’t matter because nothing says that an impeachment can only be for something unconstitutional.

Q: If the President can use the military without Congress, then why is that part of the Constitution, that only Congress can declare war?

A: In the British Constitution, the King declares war and often did so for purposes of conquest. At the time, declaring war could cause one because there wasn’t often a standing army. So, in our day, the fact that Congress funds a full time military more or less means that they are giving away the game. In other words, if there’s no army and the president can declare war, he puts Congress in a position of probably having to raise an army to defend the country, potentially on the President’s whim.

But once there is an army, the President has the Constitutional power to use it. We just live in a different time.

If there was any power that might be limited, you’d think it would be the deployment of the country’s nuclear forces. You’d think that might require the assent of the Speaker of the House, or something. But it doesn’t, and it probably can’t unless you want to risk not being able to respond, which actually invites an attack.

But once you realize that the President can nuke, it seems silly to me to quibble over whether the words “Declaration of War” need to be on a piece of paper.