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 . . . ]

Continue ReadingDefensive Justice: Inside the mind of Supreme Court Justice Samuel Alito

Members of Congress are damned smart investors

Or maybe not. Dan Froomkin reports on recent findings by university researchers who found that representatives beat the market by 6 percent while senators beat the market by 10 percent:

What's their secret? The report speculates, but does not conclude, it could have something to do with the ability members of Congress have to trade on non-public information or to vote their own pocketbooks -- or both.

Continue ReadingMembers of Congress are damned smart investors

Barack Obama didn’t forget to pardon Bradley Birkenfeld today

Today, Barack Obama pardoned eight people. They included people convicted of drug offenses and a woman accused of evading bank reporting requirements. Bradley Birkenfeld, an American banker who formerly worked for UBS, Switzerland's largest bank, was not among the eight people pardoned.   The information Birkenfeld voluntarily provided to the federal government in 2007 led to the government's "uncovering the biggest tax fraud in U.S. history."  Perhaps Birkenfeld (photo here) was intentionally overlooked because pardoning him would remind the public that he is sitting in prison for no good reason, after attempting to report tens of thousands of rich tax cheat to the federal government. Birkenfeld's problem is that he is not a celebrity, or wealthy or a sport star or a politician, like many of the thousands of tax cheats he tried to bring to the attention of an uninterested federal government. Birkenfeld continues to sit in prison in Schuylkill Pennsylvania, while the United States continues to wage its war on whistle-blowers (and see here).   Several additional links on whistle-blower abuse here.

Continue ReadingBarack Obama didn’t forget to pardon Bradley Birkenfeld today

Barack Obama: The Surveillance President

Glenn Greenwald points to three extraordinary events this week that earn Barack Obama the title of Surveillance President. These events dovetail with the President's previous conduct aimed at furthering government secrecy at the expense of an informed citizenry. These events also need to be seen in the context of Obama's War on whistleblowers, as reported by Jane Mayer of The New Yorker.  "[T]he Obama Administration has pursued leak prosecutions with a surprising relentlessness. . . . [I]t has been using the Espionage Act to press criminal charges in five alleged instances of national-security leaks—more such prosecutions than have occurred in all previous Administrations combined."  But that is just the beginning.  Here's one more excerpt from The New Yorker:

Jack Balkin, a liberal law professor at Yale, agrees that the increase in leak prosecutions is part of a larger transformation. “We are witnessing the bipartisan normalization and legitimization of a national-surveillance state,” he says. In his view, zealous leak prosecutions are consonant with other political shifts since 9/11: the emergence of a vast new security bureaucracy, in which at least two and a half million people hold confidential, secret, or top-secret clearances; huge expenditures on electronic monitoring, along with a reinterpretation of the law in order to sanction it; and corporate partnerships with the government that have transformed the counterterrorism industry into a powerful lobbying force. Obama, Balkin says, has “systematically adopted policies consistent with the second term of the Bush Administration.”

[caption id="attachment_18134" align="alignright" width="300" caption="Image by Kgtoh at Dreamstime (with permission)"][/caption] But back to the three recent events: 1. Top congressional leaders agreed Thursday to a four-year extension of the Patriot Act; 2. The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation; and 3. The nonprofit Electronic Frontier Foundation alleges in a lawsuit filed Thursday that the Justice Department's Office of Legal Counsel violated federal open-records laws by refusing to release its legal opinion that concludes that the FBI may obtain telephone records of international calls made from the U.S. without any formal legal process, a watchdog group asserts. Welcome to the United States of Surveillance.

Continue ReadingBarack Obama: The Surveillance President