Thursday, June 28, 2012

HR: Chief Justices don't always work out the way presidents expect

I wonder what "W" thinks about Chief Justice Roberts's decision in the Obamacare case.  The CJ certainly has POed conservatives:|main5|dl1|sec1_lnk1%26pLid%3D174223

Another Republican Prez, Dwight D. Eisenhower, thought he was making a safely conservative  pick when he appointed former California Governor and Baseball Commissioner Earl Warren to the top judicial post.  Instead Warren kicked off his SCOTUS career with Brown v. Board of Education.

Remembering Brown v. Board of Education:

SOURCE: News of Delaware County (7-4-07)
[Jim Castagnera is the associate provost/associate counsel at Rider University and 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.

Justice Rehnquist

Chief Justice Rehnquist was probably the most reliable of the "conservative" appointees to the "chief" position.  While Warren swung widely left --- to the point where conservatives bought highway billboards that read "Impeach Earl Warren" --- and CJ Roberts seems to be flashing a hint of blue under his black robes, Rehnquist pretty much stayed the conservative course, so far as I am able to recall.

He also had a secret that I felt made his conservative stance hypocritical:

      James Castagnera: Rehnquist’s Hypocrisy

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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