Tag Archives: SCOTUS

Three Cheers For Justice Ginsberg! Or not …

Posted on by under Political commentary

Supreme Court Justice Ruth Bader Ginsburg, in addition to being a Supreme Court Justice, is also a citizen, a taxpayer and a voter.  And she, like all the rest of us, has an opinion about the upcoming election and the candidates, specifically da trumpeter:

ginsberg-trump“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president, for the country, it could be four years. For the court, it could be — I don’t even want to contemplate that. He is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”

Pretty mild, if you ask me (compared to much of what I have said about the same candidate).  My initial reaction was a fairly substantial chuckle, and a desire to know more.  In feeding that desire to know more, I have had to temper my chuckle with some concerns, but beneath those concerns there is still a remnant of the chuckle, if for no other reason that because her comments really annoyed the heck out of the thin-skinned trumpeter!

Article III, Section I of the U.S. Constitution provides that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”  It is this that provides judges and justices with a lifetime tenure (assuming “good behaviour”) and also states that their salaries cannot be decreased during their tenure.  The reason for this clause is to allow justices to remain Independent from the legislature, to remain above partisan politics.  But does this mean that they are completely non-partisan?  No, of course not, especially in their personal lives.  But it does mean that they should be cautious about expressing partisan views, particularly as they may apply to cases that are or might come under their review.

All of which I agree with, at least in theory.  The courts, especially the Supreme Court, need to be above the dirt and grime of partisan politics in order to be completely fair and impartial.  That said, the justices are also human beings.  They are, as I mentioned above, citizens, taxpayers and voters, and it would be unreasonable to assume that they had no opinion concerning candidates and their ideologies.  However, there is some question among legal scholars (not to mention the media and the GOP, but let us confine this discussion to those whose opinions actually matter) regarding the wisdom and effect of Justice Ginsberg’s comments:

  • Richard W. Painter, a professor of law at the University of Minnesota and a former ethics counsel for President George W. Bush, said Justice Ginsburg’s blunt criticism could provide Mr. Trump with ammunition to try to undermine the moral authority of the Supreme Court.
  • The code of conduct for federal judges says that they shouldn’t “publicly endorse or oppose a candidate for public office.” The code does not apply to Supreme Court justices, but they are generally guided by it.
  • Ilya Shapiro, a senior fellow in constitutional studies at the libertarian Cato Institute, said Justice Ginsburg’s comments “make the judiciary just as political as the other branches of government, and that’s a bad thing. It’s inappropriate for judicial branch officials to do this because it removes even the illusion of impartiality.”
  • Bloomberg’s Noah Feldman noted the Constitution doesn’t require justices to be nonpartisan. Even John Marshall, the father of American constitutional law, served as both chief justice and John Adams’s secretary of state at the same time, he pointed out. “As a lawyer and as a citizen, I’d always rather know what justices and judges think rather than have enforced silence and pretend they have no views.”
  • Her comments make it clear that she would be forced to recuse herself if the election comes down to a Bush v. Gore-type case.

So, while Justice Ginsberg’s comments broke no laws, no established protocols, and indeed, the late Justice Antonin Scalia was known for making such partisan, political comments, her remarks were probably not the wisest thing she could have done.  However, there are only two scenarios under which I see them coming back to haunt her.  One, as mentioned above, is if the election should become a contested election and the Supreme Court is called upon to adjudicate.  The other, potential situation would be if Donald Trump were to actually become president, in which case he would likely claim that the Supreme Court is biased against him due to Justice Ginsberg’s remarks.  He of thin skin also has the memory of an elephant when it comes to those he feels have insulted him.

All that said, one must still obtain a bit of humour over the fact that Justice Ginsberg got under the thin skin of da trumpeter.  His response was predictable (we are getting to know him so well through his tweets and speeches!) and tedious, but I just love seeing anyone get under his skin!

“I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly. I think it’s a disgrace to the court and I think she should apologize to the court. I couldn’t believe it when I saw it.”

Justice Ginsberg was well within her rights to state an opinion.  The 1st Amendment applies to her just as much as to anyone else.  But yet, there are times when it is just smarter to keep one’s mouth shut.  This may well have been one of those times, for at the very least, those troublesome Republicans who are yet trying to use smoke and mirrors, trickery and skullduggery to score a win for their despicable candidate, will no doubt raise a cry and hue over this one.

Addendum:  Between the time I wrote this post and the time of its publication, Justice Ginsburg issued the following statement:

“On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”

Presumably her comment is in response to widespread criticism by legal experts and the media.  I am disappointed, though not surprised.

The Snake-Oil Salesman and the Governor

Posted on by under Political commentary

Jonnie-WilliamsMr. Jonnie R. Williams Sr. of Virginia has a very shady past.  In the 1970’s after a single year of college, he sold cars for a living.  For a while.  Then he got into real estate.  For a while.  Then he opened an eyeglass and contact lens shop called Colonial Opticians. For a while.  It went bankrupt shortly after he was fined for fitting people for contact lenses with no license, not to mention no opthalmic background.  But by this time, somehow, Mr. Jonnie R. Williams was driving around town in a gold Mercedes convertible, despite an unpaid balance on a $45,000 Small Business Administration loan.

Jonnie went back to selling cars, Mercedes as it were, this time in Massachusetts.  His former boss remembers him as “the best salesman we ever had.”  Soon, however, he moved on and started one business that lasted three years before bankruptcy, then another that produced a medical product, an eye ointment, that eventually led to legal claims that cost Jonnie some $300,000.  Next, a series of investments in various medical-related companies where Jonnie made money, not from sales, but from investments amid rising stock prices.

Then in 1990, Jonnie launched a company called Star Scientifics, a maker of discount cigarettes.  One thing led to another … I won’t bore you with all the details, as they have no bearing on this story … and soon Jonnie was once again losing business, so he dropped cigarettes and started selling throat lozenges and ‘dietary supplements’ called Anatabloc.  His product launch was in 2012 at a luncheon held in the governor’s mansion.

Star Scientific is now, just like those that went before, in trouble.  The company’s stock price has taken a serious hit; the FDA has warned that the company was marketing Anatabloc illegally; and shareholders have filed suit.  So you now see what Jonnie R. Williams is like … at least one person has referred to him as a “snake oil salesman” … I think that sounds about right.  But … and now I come to the point of my story … in return for a bit of help in launching, testing and perhaps promoting his faux dietary supplement, Mr. Williams provided the following ‘favours’ to then Virginia Governor Robert McDonnell and his family:

  • A trip to Cape Cod for Robert and his wife, Maureen
  • An engraved Rolex watch for Maureen
  • A 2011 NYC shopping trip for Maureen
  • Dinner at La Grotta for Robert and Maureen
  • Flight to Final Four for Robert and Maureen
  • Various yard work and landscaping
  • Florida vacation for daughter Rachel
  • Plane tickets for daughters Rachel and Cailin
  • $15,000 wedding catering for daughter Cailin
  • Trip to Williams’ lake home for Robert, Maureen and all four children
  • Golf trip for Robert and son Sean
  • Five additional golf trips for Robert and sons Sean & Bobby
  • Private plane flight for sons Sean and Bobby, and daughter Jeanine
  • Plane tickets for daughter Jeanine
  • $10,000 engagement check for daughter Jeanine
  • $150,000+ in loans (some estimates say upward of $175,000, but I find verifiable evidence only of $150,000)
bob-McDonnell.jpg

Robert McDonnell drives Williams’ Ferrari

On January 21, 2014, McDonnell and his wife, Maureen, were indicted on federal corruption charges for receiving improper gifts and loans from none other than Jonnie Williams.  They were convicted on most counts by a federal jury on September 4, 2014. McDonnell, the first Virginia governor to be indicted or convicted of a felony, was sentenced on January 6, 2015 to two years in prison, followed by two years of supervised release. He has been free on bond during the appeals process, which upheld his convictions on July 10, 2015.  On February 20, 2015, his wife was sentenced to twelve months and a day in prison, also followed by two years of supervised release. She is free on bond.

Yesterday, 27 June, the Supreme Court that has been deadlocked on so many important cases since the death of Justice Antonin Scalia in February, voted unanimously to overturn Robert McDonnell’s conviction.  Chief Justice John Roberts, writing for the court, narrowed the definition of what sort of official act can serve as the basis of a corruption prosecution.  Prosecutors must prove, the chief justice continued, that the defendant made a decision or took action on the matter, or agreed to do so (in exchange for gifts).  The alternative, Chief Justice Roberts wrote, would be to criminalize routine political courtesies.  I agree in theory, but let’s face it, ‘routine political courtesies’ need not be of the caliber listed above.  To me, a $4,000 – $6,000 wristwatch, and $10,000 – $15,000 wedding gifts sounds more like a bribe than a simple ‘thank you’ for a small political favour.

“There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns,” Roberts wrote. “It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute.”  Apparently, there was little or no evidence that, apart from the luncheon in the Governor’s Mansion, any favours were ever extended to Jonnie Williams, thus the Supreme Court ruling.  Under these circumstances, the ruling likely could have been no different, however … common sense tells us that all those ‘gifts’ I listed above were somehow in exchange for something.  If there is blame to be leveled here, I would point the finger at prosecutors who perhaps did not dig deeply enough.

Undoubtedly this goes on more than any of us know, and to some extent it is business as usual.  But with yesterday’s Supreme Court ruling, it just got even harder for prosecutors to bring charges of corruption in the future, and that is my complaint.  The Supreme Court sets precedent for future cases, and this time they set one that will ultimately lead only to more corruption in government.

The Supreme Court Becomes a Political Pawn

Posted on by under Political commentary

“Justice Antonin Scalia, whose transformative legal theories, vivid writing and outsize personality made him a leader of a conservative intellectual renaissance in his three decades on the Supreme Court, was found dead on Saturday at a resort in West Texas, according to a statement from Chief Justice John G. Roberts Jr. He was 79.” (New York Times, 13 February 2016).  Scalia was intelligent and best known for his “caustic dissents that alienated even potential allies.”  Although I rarely agreed with his opinion, he being a conservative and a textualist, I respected his intellect, enjoyed reading his acerbic opinions, and the Supreme Court is a little less bright now.  That said, it is not my intent to eulogize nor criticize the man, but to address a conflict that began brewing within minutes of the news of his death being announced.

Article Two of the United States Constitution places the power of appointing Justices with the President of the United States, stating:

“he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…”

It is clearly the responsibility of President Obama to nominate a candidate to fill the vacancy left by Justice Scalia’s death.  However, Senate Majority Leader Mitch McConnell (R-Ky.) said in a statement that the Senate controlled by his party should not confirm a replacement for Scalia until after the election.  Presidential candidate Ben Carson reiterated McConnell’s stance.  President Obama still has nearly eleven months left to serve as President of the United States, and it makes no sense whatsoever to wait that long to replace Scalia.  Obviously, the republicans are hoping to see one of their own elected as president in November, but never mind that it seems a long shot at this time, the issue here is whether it makes sense to leave the vacancy open for that long.

The Supreme Court consists of nine justices … now there are eight.  Not only does this create a possibility of a tie when deciding and ruling on cases, but under the circumstances, it creates a great probability that there will be ties in many cases over the coming months.  Why?  Because of the remaining eight justices, four are conservative (Kennedy, Roberts, Thomas, Alito) and four are liberal (Kagan, Sotomayer, Ginsburg, Breyer).  Some highly controversial issues are on the docket for the coming months:  abortion, affirmative action, the rights of religious objectors to the contraceptive mandate in the Affordable Care Act, the president’s powers on immigration, and deportation.  An eight-member court could very well be deadlocked on all of these issues.

While it is extremely unusual for a Supreme Court vacancy to be unfilled for a long period of time, it is not without precedent.  The longest was 2 years, 3 months and 18 days in a situation similar to the current one.  When Justice Henry Baldwin died April 21, 1844, John Tyler was president.  Followers of Henry Clay, believing he would be elected, voted to postpone consideration of all Tyler’s appointments.  Clay lost the election to James K. Polk at the end of 1844, but Polk’s first appointments were also rejected, thus it would be August 1846 before the Senate finally confirmed Robert C. Grier to fill the position.  (American Political Leaders 1789-2005, CQ Press Editors, 2005)

President Obama stated that he will nominate a Supreme Court Justice “in due time”, that it is his responsibility and that of the Senate to do so.  The reason, according to McConnell’s argument, that the next president should be the one to make the nomination, is to “give the voters a say in the selection”, but the fallacy in that is that the voters have no say whether President Obama or the next president make the appointment.  Unless, that is, it becomes a campaign issue.  The Supreme Court, by the nature of the Constitution, is the one branch of the federal government that is specifically not intended to be subject to the whims of politics.  That is why justices are appointed for lifetime terms, so that they will not face re-election, not be tempted by the corruption that is inherent in the political process.  So it would be unconstitutional to allow the nomination and appointment of a justice to become a political issue.

There is no doubt that, unless President Obama is able to pull a rabbit out of his hat and appoint a candidate who is unarguably acceptable to the republican controlled Senate, that same Senate will do everything in its power to block his appointments.  It is an abominable state of affairs when one party brings the wheels of justice to a screeching halt, but I fear that is what is going to happen.  And all for naught, as it is highly unlikely at this point that a republican will become the next elected president.  But alas, they must play their little games, and we, the citizens, must pay the price.

Red Letter Week for the United States

Posted on by under Political commentary, Social commentary

This week the U.S. Supreme Court ruled on two highly significant cases and the outcome of both was, at least in the opinion of this writer, right and proper. No, I am not dancing in the streets as are some, but I am quietly pleased and optimistic that these two rulings signify a trend toward a more tolerant, kinder national ideology.

The first, on Thursday June 25th 2015, was to uphold the subsidies for ACA (Affordable Care Act, aka “Obamacare”). The subsidies, government funds to assist in the purchase of health care, are a key provision for ACA and without them, the entire act would likely have crumbled. Given that there are 11.7 million people currently enrolled in the health care exchanges, the loss of those subsidies would have been devastating to a large portion of the population. GOP presidential hopefuls have been threatening a repeal of ACA, but Thursday’s ruling makes that highly improbable. Many have ranted and railed against ACA since its inception, blaming President Obama for increased medical and insurance costs, but that blame is misplaced. We have created a culture whereby if something goes awry, something is inconvenient, then surely somebody must be to blame, so we start pointing fingers, often without researching facts. The fact regarding healthcare costs is that neither ACA nor President Obama are the guilty parties here. Looking to blame someone? Blame the insurance industry who seek ever-increasing profits. Blame the healthcare industry, doctors who order unnecessary tests, prescribe unnecessary medications and schedule patients for routine office visits far more frequently than necessary. Blame the pharmaceutical companies who pass the costs of past failures on to us. Blame laboratories who charge exorbitant fees for even the simplest of tests. And lastly, blame individuals who visit the doctor at the first sign of a sniffle, ache or pain. Those are all the causes of the rise in healthcare costs, not the subsidies that have enabled families to obtain at least minimal healthcare without having to sacrifice such essentials as food and shelter. In the long run, the subsidies are unlikely to cost the taxpayers any more than indigent care if there were no affordable healthcare for the poor and lower middle income people.

The second ruling actually overshadowed the first in terms of being controversial and burning up the social media sites, and that is, of course, the ruling on Friday, June 26th 2015, in favor of same-sex marriage nationwide. I have no intention of becoming embroiled in a discussion of this topic, other than to say it was the right thing to do. If two people are in love, they should have the right to marry. Period. Don’t like the idea of same-sex marriage? Fine, don’t marry somebody of the same gender as yourself. The ruling certainly doesn’t force anybody to marry anybody they don’t wish to marry … it merely gives all people the right to marry the person they love. Don’t understand the concept? That’s okay too … there are many concepts that others follow that I don’t understand, but I accept. Think same-sex, marriage is a sin? That’s okay … again, nobody is forcing you to commit what you consider a sin, and frankly, nobody is holding you accountable for the sins of another person. The bigger sin, in my book, is to spew hate and vitriol toward those who choose differently than you simply because you do not understand or agree with their decision. I count among my friends a number of gay couples and I am happy for them. The Supreme Court ruling does nothing to harm any individual nor to deprive anyone of their rights, it merely gives official legitimacy to what most of us already knew was legitimate. As my mother used to say, “If you can’t say something nice, don’t say anything”.

So, all in all, the U.S. Supreme Court took some giant steps toward human rights in this nation and we can only hope that the controversies will die down quickly and before any irreparable damage is done. Let us hope that the good citizens of this nation will live up to the image of the United States as a nation of tolerance, of “liberty and justice for all”.

Comments are welcomed, but inappropriate or rude comments will be removed.

SCOTUS strikes down DOMA – Score One for Equality!

Posted on by under Social commentary

Today, Wednesday, June 26, 2013, the Supreme Court of the United States (SCOTUS), took a courageous stand in striking down the Defense of Marriage Act (DOMA). Although the vote was narrow (5-4) and Justice Scalia, who voted in the minority, wrote a scathing statement of dissent, this was nonetheless a giant step for humankind in the United States of America. For those who are just now waking up to this news, DOMA was intended to keep couples in a same-gender marriage from sharing any of the legal benefits that other married couples are entitled to. Simply put, DOMA was a law that condoned discrimination, based on superficial criteria, of an entire group of people in this country.

Predictably, many are dancing in the streets with joy and posting on Facebook tonight. Equally predictably, many are grumbling, cursing, and predicting horrific things to come of this act. It isn’t so different, really, from the Civil Rights Act passed by Lyndon B. Johnson in 1964. It upsets those who cannot abide the winds of change. It upsets those who are possessed of a sense of entitlement, superiority and a belief that their opinion is the only right one. What is surprising is that the ones angriest, the ones screaming the loudest, are the most vociferous of the Christians in this country. I thought those were the very ones whose faith taught them to love their neighbor. I must have missed the part where it says to love your neighbor only if they are just like you, only if their skin is white and their partner in love is not of the gender you believe he/she should be. I also thought that true Christians were supposed to not “judge, lest ye be judged”. Understand that not all Christians are in this category, in fact most that I know are pleased to see this measure of equality finally find its’ rightful place in law. But it is those who speak with the biggest bullhorns who have deemed to be in the know, and what they claim to know is that God is angry and will punish the whole of this nation for its’ decision to stop the widespread discrimination against couples who make non-traditional life choices. No matter what a person’s religion, Christian, Jew, Muslim, or other, it is sheer arrogance to discriminate against a person or persons based on their culture, their race, their gender, or their personal choice of a life partner. Love doesn’t always follow a set of rules, love doesn’t always make sense, and love sometimes just is.

I have compared this to the Civil Rights Act, one of the greatest laws ever written in this country since the Constitution was originally drafted. I only hope that we, as a nation, as human beings, have progressed and matured in the almost 50 years since that law was passed. Violence, hatred and murder followed for many years after the passage of that act and we can only hope that in the current climate, cooler heads will prevail. For my part, I am pleased to see our country take another step toward equality for all. It took way too long to come and there are many more that must be taken, but it is a step in the right direction. Congratulations to my many friends who will directly benefit from today’s decision. And to my many friends who are distressed by it, I say “live and let live”.