Sunday, October 10, 2010

Supreme Court Chemerinsky, LA Times Increased Corporate Power, Lowered Defendant Rights, Remedies for Segregation

Tags: Supreme Court Books, Law and Justice, Assault on Constitution, Making Our Democracy Work, Nine

Jeffrey Toobin’s “The Nine: Inside the Secret World of the Supreme Court is the easiest to book on the Supreme Court to read and understand and to enjoy how the various characters in the Supreme Court make decisions based on their ideology and so called logic.

Making Our Democracy Work: A Judge's View I watched Justice Stephen Breyer talk about his book on C-Span’s Very impressive.

Book review: 'The Conservative Assault on the Constitution' by Erwin Chemerinsky

When I lived in Los Angeles for almost ten years before I emigrated to Eugene, Oregon, I listened to Chemerinsky’s talking on radio many times and reading his columns in the Los Angeles Times. Even though he is called a Liberal, I know he is really a moderate or as the media often uses left leaning. We saw in the British Empire that law without justice serves only those with wealth and power.

Many of us know that governments are often formed throughout history to serve the interests of the wealthy and powerful. Who wrote our Constitution? The rich and powerful. Benjamin Franklin walked out of the Constitutional Convention because he realized that forming the Senate as the Convention did kept control of government for the rich and powerful. How prescient Ben Franklin has been is reflected in how our government allows the top 1 percent of our peoples to make more money than the bottom 90 percent of Americans!

Most of our true wages taking inflation into account has been the same since the early 1970s while the average CEO makes 500 times greater wages than they typical worker in the company. The CEOs who make the most money fire the most employees.

Ironically, when we become fearful because we don’t know if we can survive, we believe the Republicans who were mainly responsible for our problems because Repubs know how to win elections by getting money from corporations to steal all the advertising on television. The lie, lie, and lie with a straight face and keep repeating them to make us fearful of Democrats.

President Obama inherited this economy from the Bush Republicans running two wars, two huge tax cuts for the rich, and Medicare Advantage with huge subsidies to the drug companies and Health Insurance Companies. Cost? About a $880 million to one billion dollars when all the bills came in. All the money was borrowed. Bush accumulated Three Trillion Dollars in debt from a Surplus in 2,000 with counting all the lifetime medical care required for veterans who were sent to war without armoured vehicles!

Before the Gore-Bush 2,000 Presidential Election, I happened to be flipping channels and could not remove my eyes from C-Span which had a live meeting of judicial scholars examining the question of what effect this election will have on the Supreme. One judicial expert after another said it would be enormous!

The big shock to me was that John Stossel of ABC News, a Libertarian, was presiding over the long session! Both conservative and more liberal commentators discussed this in detail.

We now know that our whole society has been affected by the decisions made by the Roberts court thanks to Sandra Day O’Conner retiring to take care of her husband and putting Alito in her place. Most people who took the time to read the Constitution which is very short and many times vague. The assumption was that the Constitutional interpretation will depend on the society wishes in the future.

The Courts and the Republican Party successfully converted our society from communities and corporate responsibility to one which follows the philosophy of Ayn Rand of everyone does what is best only for themselves and f--k everyone else. Our social structure has already crumbled to a large extent and repairing our society may no longer be possible. For all its faults, at least other countries think of what best for their nation while we think of is what is best for profits.

Jim Kawakami, Oct 10, 2010,

Making Our Democracy Work: A Judge's View [Hardcover]

Stephen Breyer (Author) The Supreme Court is one of the most extraordinary institutions in our system of government. Charged with the responsibility of interpreting the Constitution, the nine unelected justices of the Court have the awesome power to strike down laws enacted by our elected representatives. Why does the public accept the Court’s decisions as legitimate and follow them, even when those decisions are highly unpopular? What must the Court do to maintain the public’s faith? How can the Court help make our democracy work? These are the questions that Justice Stephen Breyer tackles in this groundbreaking book.

Today we assume that when the Court rules, the public will obey. But Breyer declares that we cannot take the public’s confidence in the Court for granted. He reminds us that at various moments in our history, the Court’s decisions were disobeyed or ignored. And through investigations of past cases, concerning the Cherokee Indians, slavery, and Brown v. Board of Education, he brilliantly captures the steps—and the missteps—the Court took on the road to establishing its legitimacy as the guardian of the Constitution.

Justice Breyer discusses what the Court must do going forward to maintain that public confidence and argues for interpreting the Constitution in a way that works in practice. He forcefully rejects competing approaches that look exclusively to the Constitution’s text or to the eighteenth-century views of the framers. Instead, he advocates a pragmatic approach that applies unchanging constitutional values to ever-changing circumstances—an approach that will best demonstrate to the public that the Constitution continues to serve us well. The Court, he believes, must also respect the roles that other actors—such as the president, Congress, administrative agencies, and the states—play in our democracy, and he emphasizes the Court’s obligation to build cooperative relationships with them.

Finally, Justice Breyer examines the Court’s recent decisions concerning the detainees held at Guantánamo Bay, contrasting these decisions with rulings concerning the internment of Japanese-Americans during World War II. He uses these cases to show how the Court can promote workable government by respecting the roles of other constitutional actors without compromising constitutional principles.

Making Our Democracy Work is a tour de force of history and philosophy, offering an original approach to interpreting the Constitution that judges, lawyers, and scholars will look to for many years to come. And it further establishes Justice Breyer as one of the Court’s greatest intellectuals and a leading legal voice of our time.

Book review: 'The Conservative Assault on the Constitution' by Erwin Chemerinsky

The influential legal scholar's evidence includes the court's role in resegregating many schools, the expansion of presidential powers and the weakening of criminal defendants' rights.

Tim Rutten, LA Times Oct 6, 2010,,0,4322009.story Southern Californians with a taste for politics or public policy probably know Erwin Chemerinsky best as the reliably liberal voice in countless left-right radio and television debates about timely legal questions or as a key contributor to Los Angeles charter reform efforts. Far fewer will be familiar with his day job as an influential legal scholar — author of a widely used textbook on the Constitution and professor of that subject at USC, Duke and, most recently, UC Irvine's School of Law, where he is also founding dean.

"The Conservative Assault on the Constitution" is his urgent, admirably lucid amalgam of both those roles, along with Chemerinsky's first-hand experience as an advocate arguing before the U.S. Supreme Court and a wide variety of lower appellate panels. He introduces his argument, in fact, with a nicely detailed anecdotal account of his appearance before the U.S. Supreme Court on behalf of Leandro Andrade, a man sentenced to life in prison under California's draconian three strikes statute for shoplifting videotapes worth $153. Despite Chemerinsky's advocacy, a court divided 5 to 4 upheld Andrade's conviction, making him the first man in U.S. history imprisoned for life for petty theft.

By the author's reckoning, the process that produced the florid injustice of Lockyer vs. Andrade began in 1968, when Richard Nixon made criticism of the Warren Court a centerpiece of the successful presidential campaign that ultimately enabled him to name four Supreme Court justices. "Since 1968," Chemerinsky writes, "conservatives have sought to remake constitutional law and they largely have succeeded. They initially set out to overturn the decisions of the Warren Court, but soon began to aggressively pursue a vision of constitutional law that consistently favors government power over individual rights … and the interests of businesses over individual employees and consumers. Because decisions come one at a time over years and because the Court never overruled the Roe v. Wade abortion decision (though it came within one vote of doing so), it is easy to underestimate how successful the conservative assault on the Constitution has been."

With that thesis as a starting point, Chemerinsky briskly moves from topic to topic in a clear but lawyerly fashion, building the evidence for his argument. Thus, there are chapters on the court's role in resegregating so many of the nation's schools, on the dramatic expansion of presidential powers, on the ongoing erosion of criminal defendants' rights, on denial of due process and the general diminution of individual liberties. Many of these chapters are enlivened by journalistic accounts of the author's first-hand experience participating in such consequential cases as Bush vs. Gore and the Texas Ten Commandments suit. Chemerinsky has a born teacher's gift for evoking context, which he does with particular effect when he explores the interplay of electoral politics and the contention over separation of church and state.

The author strongly indicts the court's conservative majority for its decision in Bush vs. Gore because he believes the justices were wrong on the law — and not for their activism. To the contrary, Chemerinsky believes that our political conversation's false choice between judicial activism and neutral or "strict construction" judging has obscured the Supreme Court's authoritarian drift. The Constitution, he argues, requires interpretation — and has since the earliest days of the Republic, when the Framers still were engaged in national government — and interpretation is inherently an active process.

"The difference between liberals and conservatives," he writes, "is not in their willingness to overrule precedent or in their degree of deference to popularly elected officials or to make momentous decisions affecting society. The divergence is entirely about when they want the court to do this and for what purpose. The other difference is in their rhetoric; conservatives continue to rail against judicial activism and profess judicial restraint even though they are every bit as willing to be activist as liberals."

Chemerinsky argues that another of the fictions that needs to be dispelled involves the confirmation process for Supreme Court justices and the notion that it's somehow illicit to inquire into the nominees' ideological inclinations or views on Constitutional interpretation. It's not only a pious, rather convenient dodge, but a recently minted one. George Washington, for example, had a nominee for chief justice rejected on ideological grounds, and the practice was common throughout the 19th century and well into the 20th. The author points out that both conservative and liberal nominees recently have been all too willing to take refuge behind the prim new standard.

In place of what Vice President Joe Biden has labeled legislative kabuki, Chemerinsky argues for vigorous questioning of nominees regarding their ideological views and approach to constitutional interpretation. Although it's clearly undesirable to have senators ask nominees how they might rule on pending cases, the author endorses what he calls the "elegant" suggestion by two Yale law professors that prospective justices be asked how they would have voted on previous cases and why. Such an approach wouldn't divorce the court from politics — nor Chemerinsky would argue could it — but it would inject a welcome note of honesty and roll back the clouds of pious obfuscation that surround so much of what the court majority really is about.

To conclude his argument over why the conservative assault on the Constitution matters as deeply as it does, Chemerinsky talks about how the first assignment he gives his constitutional law students is to read the U.S. Constitution alongside the one adopted by the Soviet Union under Stalin. "My students," he writes, "are always surprised to see that the Soviet constitution has a far more elaborate statement of rights than the American Constitution. I also assign them to read a description of life in the gulags. I ask how can it be that a country with such detailed statements of rights in its constitution could have such horrible abuses.

"The answer is that in the Soviet Union no court had the power to strike down any government action. Judicial review … is at the core of enforcing the Constitution and ensuring our freedom."

In an election cycle awash in fictional, delusional and genuinely demented notions about the Constitution, Chemerinsky's book is a welcome dose of real history, clear thought and genuine respect for the rule of law as a humane covenant.

… During the first years of the Roberts court, it has ruled consistently in favor of corporate power, such as in holding that corporations have the First Amendment right to spend unlimited amounts in independent political campaigns. For the first time in American history, the high court has struck down laws regulating firearms as violations of the Second Amendment and held that the Constitution protects a right of individuals to possess guns.

It has dramatically cut back on the rights of criminal defendants, especially as to the exclusion of evidence gained through illegal searches and seizures under the Fourth Amendment and the protections of the Fifth Amendment’s privilege against self-­incrimination. It has limited greatly the ability of the government to formulate remedies for the segregation of public schools. It has expanded significantly the power of the government to regulate abortions. …

On the issues that today define the ideological continuum, these four justices are as conservative as any in American history. Their views are best understood far more by reading the 2008 Republican Party platform than by studying the views of the Constitution’s framers. …

There is no reason to think that this term will be any different as the court considers major issues concerning the separation of church and state, the ability of states to regulate immigration and the rights of criminal defendants. And in the following term or two, the court will be asked to consider such major issues as the constitutionality of the federal health care bill, the ban on marriage equality for gays and lesbians, and Arizona’s law requiring state and local police to enforce federal immigration laws. …,0,3541336.story

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