RSSCategory: Court Decisions

Defensive Justice: Inside the mind of Supreme Court Justice Samuel Alito

May 24, 2011 | By | 4 Replies More
Defensive Justice: Inside the mind of Supreme Court Justice Samuel Alito

On Monday, May 16, 2011, Associate Justice of the United States Supreme Court Samuel A. Alito spoke at a function sponsored by the Bar Association of Metropolitan St. Louis. I attended because I was curious about his thought process; what was going on in his mind? I had no idea what Justice Alito was going to discuss until he began to speak. I recorded his speech on a small recorder and I took some notes.

Alito is part of a Supreme Court majority that has repeatedly written opinions that have wrested power from average citizens at the expense of powerful corporations. Yet Justice Alito began his talk by proudly reciting an inscription on the walls of the United States Supreme Court: “Equal Access to the Law.” That’s a strange line to recite by a judge who has voted to bar ordinary citizens from having meaningful access to courthouses (see AT&T v Concepcion) and barred them from having meaning access to democracy itself by unleashing an ocean of money into the electoral process (see Citizens United and see here).

[caption id="attachment_18157" align="alignright" width="300" caption="Image: Creative Commons"][/caption]

Alito titled his talk “The Top 10 Things You Might Not Know about the United States Supreme Court.” Because Alito is often touted as an “intellectual,” I assumed that the talk might be intellectually challenging, but it was a self-absorbed and disingenuous talk delivered in a humorless tone. Alito’s talk was also highly defensive, as described below.  His talk was especially disappointing in light of Alito’s claim that he has given this same talk to other audiences on many other occasions. That would presumably would have given him the opportunity to hone some inspirational messages into his talk, but I felt no inspiration.  Feel free to disagree with me after listening to Alito’s entire speech here. Without further ado, here are Samuel Alito’s “top ten things” along with my reactions to these “things.”

Topic one: “Most cases are not about the Constitution.”

I never assumed otherwise, and I suspect that most audience members (all most all of them practicing attorneys) never assumed otherwise. It was curious is that Alito mentioned Brown versus Board of Education as one of the great cases coming out of the United States Supreme Court. Brown was a case in which the court was looking out for the little guy, something the current court has not shown much interest in doing. Therefore, one might wonder how the majority on this court would have reacted in such a case had this majority been sitting on the bench back in 1954. If this sounds harsh, give me one reason to think otherwise. Brown pitted the Court against legislators; it was inconvenient decision for those in power. It was a decision driven by a desire for “social justice,” an alien concept for the current court.

Topic two: “Most cases are governed by precedent.”

[More . . . ]

Share

Read More

The U.S. Supreme Court’s trajectory on campaign cash

April 5, 2011 | By | 1 Reply More
The U.S. Supreme Court’s trajectory on campaign cash

In the April 11, 2011 edition of The New Yorker, Jeffrey Toobin connects the dots and announces what the United States Supreme Court has in store for us. The latest evidence is the attitude displayed by a majority of the justices during an argument concerning the constitutionality of an Arizona clean-money level-the-playing field election law. All of this conservative activism is allegedly being done to make sure that the government won’t “stifle debate,” even though the Court’s approach is drowning out non-monied natural people and inviting large monied corporations to rig elections.

The implications of the Court’s approach are now becoming more clear. In the Citizens United case, the majority decreed, in an opinion written by Justice Anthony M. Kennedy, that corporations and other organizations could bypass the old limits by giving unlimited amounts not to candidates but to nominally independent groups that support them. (Corporations, of course, traditionally give more to Republicans.) But the logic of the decision—and the views expressed by the majority at the argument last week—suggests that in the future the Court will allow corporations to skip the third parties and give money directly to the candidates. It also implies that any limit on the size of contributions, by individuals or corporations, may now be held to be unconstitutional. The Court did suggest that requirements calling for the public disclosure of contributions might pass constitutional muster, but Congress shows no inclination to enact any such rules. President Obama’s DISCLOSE Act, which would have bolstered disclosure requirements, died in Congress last year. (Clarence Thomas, the silent Justice during oral arguments, believes that even disclosure violates First Amendment rights.)

For a succinct and accurate rendition of Citizens United, check out this video by Annie Leonard.

Share

Read More

Federal Reserve ordered to disclose recipients of bailout funds

March 27, 2011 | By | 4 Replies More
Federal Reserve ordered to disclose recipients of bailout funds

Here’s some good news from the U.S. Supreme Court:

The Federal Reserve will disclose details of emergency loans it made to banks in 2008, after the U.S. Supreme Court rejected an industry appeal that aimed to shield the records from public view.

The justices today left intact a court order that gives the Fed five days to release the records, sought by Bloomberg News’s parent company, Bloomberg LP. The Clearing House Association LLC, a group of the nation’s largest commercial banks, had asked the Supreme Court to intervene.

It takes some real chutzpah to deny the public the right to know how $3.5 trillion in public funds were used.

Share

Read More

Taking back the Constitution

February 6, 2011 | By | 2 Replies More
Taking back the Constitution

In the February 7, 2011 edition of The Nation, Garrett Epps argues that the political right is trying to steal the United States Constitution “in plain sight,” and that it’s time to take it back because it belongs to all of us. His article is titled “Stealing the Constitution: Inside the right’s campaign to hijack our country’s founding text–and how to fight back.” Epps argues that it’s time to counteract the “poisonous rubbish” that the far right’s self-appointed constitutional “experts” are teaching well-meaning citizens. One of those “experts” of the far right is United States Supreme Court Justice Antonio Scalia, who has just agreed to serve as a faculty member for Michele Bachmann’s new “Constitutional School” for new members of Congress.

How has the political right been able to successfully portray itself to be the only party that can meaningfully define the Constitution? One big reason is that legitimate constitutional scholars are unwilling to step into the fray in a public way. Instead,

Scholars from top schools hold forth with polysyllabic series of hermeneutics that ordinary citizens can’t fathom. Meanwhile, conservatives don’t hesitate to speak directly to the public-and, often, to dumb down the Constitution. They purvey a simple method: anyone who doesn’t support the far right version of the Constitution is at best unpatriotic, at worst a traitor.

[More . . .]

Share

Read More

Scalia’s Problem

January 4, 2011 | By | 11 Replies More
Scalia’s Problem

Recently, Justice Antonin Scalia shot his mouth off about another bit of “social” judicial opinion and managed to be correct to a fault again. Here is the article. Basically, he is of the opinion that if a specific term or phrase does not appear in the Constitution, then that subject is simply not covered. Most famously, this goes to the continuing argument over privacy. There is, by Scalia’s reasoning (and I must add he is by no means alone in this—it is not merely his private opinion), no Constitutionally-protected right to privacy.

As far as it goes, this is correct, but beside the point. The word “private” certainly appears, in the Fifth Amendment, and it would seem absurd to suggest the framers had no thought for what that word meant. It refers here to private property, of course, but just that opens the debate to the fact that there is a concept of privacy underlying it.

The modern debate over privacy concerns contraception and the first case where matters of privacy are discussed is Griswold v. Connecticut, 1965. That case concerned the right of a married couple to purchase and use contraception, which was against the law in that state (and others). The Court had to define an arena of privacy within which people enjoy a presumed right of autonomous decision-making and into which the state had no brief to interfere. Prior to this, the Court relied on a “freedom of contract” concept to define protected areas of conduct. Notice, we’re back in the realm of property law here.

People who insist that there is no “right to privacy” that is Constitutionally protected seem intent on dismissing any concept of privacy with which they disagree, but no doubt would squeal should their own self-defined concept be violated. Therein lies the problem, one we continue to struggle with. But it does, at least in Court tradition, come down to some variation of ownership rights—which is what has made the abortion debate so difficult, since implicit in it is the question of whether or not a woman “owns” her body and may therefore, in some construction of freedom of contract, determine its use under any and all circumstances.

[More . . . ]

Share

Read More

Rightward shift of John Roberts Court documented

December 20, 2010 | By | 7 Replies More
Rightward shift of John Roberts Court documented

This from Raw Story:

A study has found that the Supreme Court under Chief Justice John Roberts has undergone a fundamental shift in its outlook, ruling in favor of businesses much more often than previous courts.

According to the Northwestern University study, commissioned for the New York Times, the Roberts court has sided with business interests in 61 percent of relevant cases, compared to 46 percent in the last five years of Chief Justice William Rehnquist, who passed away in 2005.

Share

Read More

New chapter on arbitration in Missouri

December 17, 2010 | By | Reply More
New chapter on arbitration in Missouri

I know that this is a shameless self-promotion, but here goes. I’ve often ranted about the way unscrupulous businesses take advantage of consumers by inserting horrendously unfair mandatory arbitration clauses in their contracts. A new Missouri CLE Deskbook for lawyers was released yesterday and it features a highly detailed chapter on arbitration clauses. I was one of two co-authors, along with John Campbell with whom I have the honor of working at the Simon Law Firm in St. Louis, Missouri.

This manual is geared to help Missouri consumer lawyers, but it could be valuable for anyone who wants to know the state of the law of consumer arbitration. It worth noting that Missouri law has paralleled the arbitration law of many other states, especially on the issue of unconscionability (John and I argued for the winning side of the August 31, 2010 case decided by the Missouri Supreme Court, Brewer v. Missouri Title Loans).

If you are interested in taking a look at this chapter, I would assume that you will soon be able to find this book in most law libraries and on the library shelves of many law firms.

For a glimpse of how complicated this topic of arbitration has gotten, I’m printing out the Table of Contents below:

[More . . . ]

Share

Read More

Justice Isn’t Boring

December 2, 2010 | By | Reply More
Justice Isn’t Boring

I’d heard about this Boring case a couple of years ago, and it finally has reached a verdict. In essence, Google’s Street View crew accidentally drove up and filmed a private road, and the owners had nothing better to do than sue. I’m picturing some legal adviser drooling over Google’s coffers and thinking they had an angle to get something substantial in the form of a settlement. But the case was pretty weak, with several judges simply stripping off charges, until they were left with second degree trespass. But they won! They beat Google!

As Geek.com puts it: Boring couple win $1 compensation for Street View trespassing.

Share

Read More

Matt Taibbi reports from his front row seat at a foreclosure court trial docket

November 11, 2010 | By | 3 Replies More
Matt Taibbi reports from his front row seat at a foreclosure court trial docket

Matt Taibbi’s newest article should be required reading for anyone who wants to support the desires of banks to expeditiously foreclose on home loans. Taibbi showed up at a Florida foreclosure docket to give an insider’s view. You will be amazed at the conduct of the judge (it is described toward the end of Taibbi’s article). Here’s the link: Courts Helping Banks Screw Over Homeowners: Retired judges are rushing through complex cases to speed foreclosures in Florida.

Here’s an excerpt:

At worst, these ordinary homeowners were stupid or uninformed — while the banks that lent them the money are guilty of committing a baldfaced crime on a grand scale. These banks robbed investors and conned homeowners, blew themselves up chasing the fraud, then begged the taxpayers to bail them out. And bail them out we did: We ponied up billions to help Wells Fargo buy Wachovia, paid Bank of America to buy Merrill Lynch, and watched as the Fed opened up special facilities to buy up the assets in defective mortgage trusts at inflated prices. And after all that effort by the state to buy back these phony assets so the thieves could all stay in business and keep their bonuses, what did the banks do? They put their foot on the foreclosure gas pedal and stepped up the effort to kick people out of their homes as fast as possible, before the world caught on to how these loans were made in the first place.

. . .

When you meet people who are losing their homes in this foreclosure crisis, they almost all have the same look of deep shame and anguish. Nowhere else on the planet is it such a crime to be down on your luck, even if you were put there by some of the world’s richest banks, which continue to rake in record profits purely because they got a big fat handout from the government. That’s why one banker CEO after another keeps going on TV to explain that despite their own deceptive loans and fraudulent paperwork, the real problem is these deadbeat homeowners who won’t pay their fucking bills. And that’s why most people in this country are so ready to buy that explanation. Because in America, it’s far more shameful to owe money than it is to steal it.

Share

Read More