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 . . . ]

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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.

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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.

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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 . . .]

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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 . . . ]

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