In the 19th and early 20th centuries, the US Supreme Court was unquestionably pro-business. The same seems to be true today, as noted by the July 15th issue of THE WEEK magazine:
"If you run a major corporation or want to use your wealth to buy an election, said Dahlia Lithwick in Slate.com, the U.S> SUpreme Court has just finished off 'a spectacularly great term.' "
The article goes on to cite the recent Wal-Mart decision, covered on this Blog.
I thought it might be interesting for me to look back at some of my columns of recent years on the Supremes:
Will Supreme Court Stand for Civil Rights?
By James O. Castagnera
An editorial in the Lacrosse, Wis., Democrat said of the Republican president, he "is the fungus of the corrupt womb of bigotry and fanaticism ..., a worse tyrant and more inhuman butcher than him has not existed since the days of Nero." George Bush? Richard Nixon?
No. These words were written about Abraham Lincoln in reaction to his Civil War decision to suspend the writ of habeas corpus. The Latin term literally means "Produce the body," and refers to the federal courts' power under the US Constitution to require law enforcement and other government officials to defend constitutional challenges to their incarceration of prisoners. Ever since 1861 historians and legal scholars have debated the legality and propriety of Lincoln's order. But one thing about it is unquestionable: At least some powerful US officials reveled in the power it gave them.
A case in point was Secretary of State Seward, who told a visitor to his office, "If I tap that little bell, I can send you to a place where you will never hear the dogs bark."
One hundred and forty years later, Jose Padilla and Esam Fouad Hamdi undoubtedly would be unsurprised to hear those same words from Attorney General John Ashcroft. Padilla and Hamdi are two American citizens who have been held in Navy brigs and classified as enemy combatants since the former, a suspected al-Qaeda operative, was arrested at Chicago's O'Hare Airport, and the latter was captured on a battlefield in Afghanistan. Since then they have been denied legal counsel and the opportunity to challenge the evidence against them in a court of law. Whether or not they can hear any dogs bark is unknown.
What is known -- in the words of Stanford Law Professor Jenny Martinez, a former Supreme Court law clerk -- "is that for the foreseeable future, any citizen, anywhere, anytime, is subject to indefinite military detention based on the President's determination that there is 'some evidence' he has associated with a terrorist organization with violent intent."
In the near-century-and-a-half between the Civil War and the so-called War on Terror, other precedents support the President's power to put people, including his fellow citizens, in places where hearing the dogs bark is, at best, problematic. A compelling parallel to the 9/11 terrorist attacks is the Japanese sneak attack on Pearl Harbor on Dec. 7, 1941. The panic that followed led to the internment of thousands of Japanese Americans, who were uprooted from their California homes and held in camps until the war ended. Many lost everything, including homes and businesses, in the interim. The Supreme Court approved. Ironically, the man remembered as the nation's most liberal Chief Justice, Earl Warren, was the California governor who signed the order. Decades later, during a TV interview, he wept when he recalled this executive action.
Also during the Second World War, the Supreme Court ruled in *Ex parte Quirin* that suspected Nazi saboteurs, including two Americans citizens, could be held by military authorities and denied civil court appearances. This is an important precedent in the Padilla/Hamdi case.
History has not been kind to these prior presidential decisions, made in the heat and fear of a current crisis, to sacrifice Americans' civil liberties in the name of national security. One observer called Lincoln's suspension of habeas corpus "imbecile, dangerous, and unjustifiable." The incarceration of Japanese-Americans during World War II was roundly condemned for decades, until finally President Bill Clinton officially apologized on behalf of the nation.
As frightening as the 9/11 attacks were, no reasonable person is prepared to compare them, as threats to our national security, to the secession of the Confederate States or the all-out war against Nazi Germany and the Japanese Empire. Any rational person's sense of scale must reject such comparisons.
Consequently, if history has condemned these earlier suspensions of our civil rights, what will be the judgment on the current administration's position? And in the meantime, what threat does this willingness to deprive American citizens of their day in court pose for all of us?
The more things change, the more they remain the same. Crises have occurred throughout the Republic's history, and they have always found leaders who were willing to scuttle the very freedoms which justify this nation's existence, in the name of national security. Each time the country's high court has been called upon to pass judgment on these incursions. The wheel has spun round again. Let's hope that this time, for a change, the Supremes will sing a song of liberty.
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James Castagnera: Rehnquist’s Hypocrisy
[Jim Castagnera is a Philadelphia lawyer and writer.]
Newly released FBI records reveal that a physician prescribed a powerful sleeping pill for the late William Rehnquist when he was an associate justice of the U.S. Supreme Court. According to these records, the doctor prescribed 500 milligrams of Placidyl every evening. Instead, the justice popped 1500 milligrams every night before beddy-bye.
The problem apparently came to a head in 1981 when, according to a shrink interviewed by the FBI, the family admitted awareness of “long-standing slurred speech which seems to coincide with the administration of Placidyl.” A month-long detox program weaned His Honor off the addiction in 1982, we are told.
It’s instructive to ask what sorts of decisions the good justice was rendering at the peak of his drug addiction in 1981. While hardly an exhaustive review of the cases in which Rehnquist weighed in, here are a couple of quick examples:
In Robbins v. California (453 U.S. 950, decided July 1, 1981), the defendant had been convicted of possession of and dealing in marijuana. During a motor vehicle stop, the cop opened a suitcase containing Robbins’s grass. The Supreme Court majority held that, absent a warrant or permission from Robbins, this search was unconstitutional and could not support his conviction.
Justice Rehnquist --- himself a drug addict at the time --- dissented, saying, “I have previously stated why I believe the so-called ‘exclusionary rule’ created by this Court imposes a burden out of all proportion to the Fourth Amendment values which it seeks to advance by seriously impeding the efforts of the national, state, and local governments to apprehend and convict those who have violated their laws. I have in no way abandoned those views, but believe that the plurality opinion of JUSTICE STEWART announcing the judgment of the Court in the present case compounds the evils of the ‘exclusionary rule’ by engrafting subtleties into the jurisprudence of the Fourth Amendment itself that are neither required nor desirable under our previous decisions.”
A judge’s own human frailty ought to compel him to show some mercy to the rest of us sinners. Apparently not so with Barbiturate Billy. Au contraire… he couldn’t hang his fellow sinners fast enough. In Coleman v. Balkcom (452 U.S. 955, rehearing denied June 15, 1981), Rehnquist’s colleague, Justice Stevens, complained, “Today Justice REHNQUIST advances the proposition, as I understand his dissenting opinion, that we should promptly grant certiorari and decide the merits of every capital case coming from the state courts in order to expedite the administration of the death penalty.”
Justice Stevens sure got that right. Wrote Rehnquist, “If petitioner follows the path of many of his predecessors, he will now turn to a single-judge federal habeas court, alleging anew some or all of the reasons which he urges here for granting the petition for certiorari. If he fails to impress the particular United States District Court in which his habeas petition is filed, he may upon the issuance of a certificate of probable cause appeal to a United States Court of Appeals. And throughout this exhaustive appeal process, any single judge having jurisdiction over the case may of course stay the execution of the penalty pending further review. Given so many bites at the apple, the odds favor petitioner finding some court willing to vacate his death sentence because in its view his trial or sentence was not free from constitutional error.”
One wonders where Justice Rehnquist’s hard words originated. Did they derive from his own mind? Were they written by a non-addicted law clerk? Or were they dictated to His Honor by one of the voices he heard talking outside his room? Well, all right… to be fair, the voices and other hallucinations are said to have been limited to his 30-day withdrawal trauma, when he also allegedly tried to escape from the hospital in his pajamas. The escape, it’s said, related to a paranoid delusion that the CIA was after him.
This last juicy detail conjures up an image of the Justice being detained by a police officer, who decides to conduct a warrant-less search of the crazed Bill Rehnquist. Perchance even a body-cavity search for hidden drugs? A close encounter with a D.C. patrolman might have had a softening effect on the hanging judge. But perhaps not…
Somehow, white-collar criminals seldom see themselves as deserving the same punishments as the ‘garden variety’ criminals on America’s mean streets. Is it criminal to take a triple dose of a drug, known on those same mean streets as “jelly bellies?” Is it criminal to rule on the criminal convictions of other druggies when addicted oneself?
Many might fairly think so. Apparently, Justice William Rehnquist did not. To my mind that’s pure hypocrisy.
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Jim Castagnera: Remembering “Brown v. Board of Education”
SOURCE: News of Delaware County (7-4-07)
[Jim Castagnera is a 2007-08 Fellow of the Foundation for Defense of Democracy.]
Last week the U.S. Supreme Court announced its decisions in Parents Involved in Community Schools v. Seattle School District No.1. Yes, I said decisions, plural. No fewer than four separate opinions were filed in this 5-4 decision in which the bare majority struck down attempts by school-district defendants to assign students on the basis of race. The split decision is part of a pattern of disagreement and dissent on the nation’s highest judicial bench. If my count is correct, the nine justices have divided 5-4 on about one third of the cases they decided during this term. More precisely, my count is 22 decisions in which the vote was 5-4 in 19 cases, plus two 6-3 decisions and one 5-3 ruling… all these out of a total of some 60-plus cases.
More troubling still is the fact that 5-4 on the face of this highly significant school desegregation case masks the actual depth of the disagreements among the Supremes. The four-justice conservative clique --- Chief Justice Roberts and Associate Justices Scalia, Thomas and Alito --- would allow no consideration of race whatsoever in assigning children to particular public schools. Never mind that the defendants’ purpose was to prevent de facto segregation along black-white lines. Justice Anthony Kennedy, increasingly the swing vote on the divided court, agreed with his four neo-con colleagues that the defendants’ approach was unconstitutional. But his separate, concurring opinion held that diversity remains a valid goal of our educational institutions and, therefore, some consideration of race in the assignment of school children may be permissible.
In dissent were Justices Stevens, Souter, Ginsberg and Breyer. Not satisfied simply to join the dissent penned by Breyer, Justice Stevens wrote a separate dissent of his own as well. Perhaps the most remarkable aspect of all these 185 pages of judicial pronouncements and pontifications is that both sides cited 1954’s landmark Brown v. Board of Education of Topeka, Kansas for their positions.
Chief Justice Roberts wrote for the bare majority, “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again, even for very different reasons.” Justice Stevens sadly retorted, “There is a cruel irony in the Chief Justice's reliance on our decision in Brown v. Board of Education…. The first sentence in the concluding paragraph of his opinion states: ‘Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.’ This sentence reminds me of Anatole France's observation: ‘[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’”
What a contrast this case makes to the Brown opinion, penned by Chief Justice Earl Warren. The former California governor, who during WWII signed the order evicting 110,000 Japanese Americans from their homes, did not look like the man who would lead the fight to overturn separate-but-equal as the law of the land. Certainly, President Dwight Eisenhower, who appointed him to head a court as badly fragmented as the one we have today, did not expect this of the man who had said, “If the Japs are released, no one will be able to tell a saboteur from any other Jap.” (Talk about profiling!)
Shortly after appointing Warren, Ike seated him at a White House dinner next to the chief counsel for the segregationists in the consolidated cases collectively called Brown. Ike told Warren the attorney was “a great man.” As for his clients, said Ike, “These are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big black bucks.” To quote the late, great journalist David Halberstam, “If Dwight Eisenhower had decided… that the two of them shared similar attitudes and values, then he was wrong.”
In the months that followed his confirmation, Warren achieved the impossible, bringing liberals and conservatives, included segregationists, on the high court together in a unanimous opinion that is one of the truly eloquent pieces of literature in the annals of the common law. Its eloquence is enhanced by its brevity.
What should sadden all of us, liberals and conservatives alike, as we review the vast, unwieldy tome of Seattle School District No.1, is the apparent inability of our newest chief justice to bring together his eight colleagues on the big issues… this at a time when national elections are decided by the narrowest of majorities, if not mere pluralities, and we are in desperate need of the law’s guiding beacon in the dark days ahead.
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