The Supreme Court made plenty of headlines last week. Today's "One First" is devoted to some of the biggest things that happened *away from* those headlines.
At last, Hawaii develops State law to prohibit corporate political contributions at State level, to stop Citizen's United, and other States begin to borrow this device. So I wonder if the illegitimate far-right cabal of kings that undermines rule of law at SCOTUS are tossing out solid precedent on limits to contributions to national parties as a way to continue right-wing corporate rule?
Thank you Steve, for providing your skillful explaining of Supreme Court rulings and goings on. Now more than ever, I believe in more transparency from this court. And some changes in the way it functions.
The Court’s decision to strike down the Federal Election Campaign Act’s limits on “coordinated party expenditures”—the caps on how much party committees can spend in coordination with their own candidates—as a First Amendment violation is consistent with the principles that money is speech and organizations are people. In other words, “We the People”, the three words in the opening of the Constitution which mean the government’s power comes from the consent of the governed, not from kings or rulers, is now replaced by, or becomes only one constituency competing - in practice at a financial disadvantage – with “We the corporations” and “We the oligarchs”. I suppose these 6 Supremes do not believe the adage that Money is Power. It may not always always determine the outcome, but its influence is undeniable.
P.S. On the personal level I like the French phrase, ""L'argent ne fait pas le bonheur, mais il permet d'être malheureux dans le confort" - "Money can't buy happiness, but it allows you to be miserable in comfort".
Money is a token to represent property, not speech, as every economist knows, but SCOTUS likes the lie that money is speech, not property, because lies are speech and mightily protected.
And in the past property was protected to justify the Fugitive Slave Act and the compensation paid to loyal Union slave owners in the US, and more broadly by Great Britain and France when in the 19th century they outlawed slavery and took away the slaveowners' human property in the territories they controlled. Ah, the alleged (by some) foundation of the US as a Christian nation including the restrictions on speech by women to preach God's word.
The refusal of the Wampanoag to convert to Christianity played an important role as a cultural issue that fueled the first American Indian War. But it was the encroachment of colonists on Native property rights that broad it to a head. The Great Law of the Iroquois Confederacy protected tribal property rights, but the Wampanoag never joined that. They were their own confederacy and viewed property as passed down through the maternal line and used collectively for sustainable fishing, hunting, and farming among the 30 tribes in the Wampanoag kingdom. It couldn't be bought or sold. There's the conflict with "western civilization". Colonist claimed it and sold it, and the war was a genocide (mho)
The original Pilgrim colonists adopted the Wampum tribute currency among themselves to make up for their short-fall in coin, and the Natives traded furs for muskets, for example.
Of all the losers in the War of Independence surely indigenous tribes were the biggest. Many (more I believe) supported the British because they forbade colonists from expanding west of the Appalachians whereas the Patriots were determined to do so. But the British left these tribes to their fate (not sure what they could have done) after their defeat. In contrast they did make some effort to honor their promise of freedom to slaves who had joined their cause- some going to Canada and some to England - in several cases after negotiations with the victorious Patriots, despite the efforts and against the wishes of Patriot slaveowners who tried to recover their human property.
Spain founded Santa Fe (Holy Faith), New Mexico, in 1610, as the seat of its New World empire, ten years before the Pilgrims landed on Cape Cod. Taos Pueblo, just north of Santa Fe was part of the Native Pueblo Revolt in 1680 that temporarily expelled the Spanish empire. My father was born in Taos Pueblo in 1925, the son of a White hunter employed by the Natives to kill bear there because their belief was/is that we face the spirits of the bears we kill after we leave this world. The French founded New Orleans in 1718 and ceded it to Spain in 1763, regained it in 1800, all the while with bloody Native resistance. My ancestors immigrated to Santa Fe, through New Orleans, which America had acquired from the French in 1803, and after Santa Fe became a US territory in 1848. Washington led the Revolutionary War because he was the largest private land owner west of the Appalachians, and wanted more, and he was already at least one of the richest persons in the world thanks to his adding his wife's possessions through marriage. The Native people's lost most of their populations to diseases that evolved through European animal agriculture, which was finally engaged as a genocidal tool, not so much loss through the collapse of the British New World empire. Otherwise the Native peoples might have stopped the Europeans. If the indigenous civilizations had been as horrifically primitive in stewardship of life as European ones were then, and as Europe and America are now, then their own diseases might have wiped out Europe. Now we approach the end of the consequent extinction event, one way or the other.
I don't support the influence of "big money" in our elections, but I wonder what a fair process would be. Running for elections necessarily costs money, and if an individual wants to donate some money to a political campaign, should there be a limit? What about a group of voters wants to "assemble" to donate some money to a political campaign? How should the limit be determined? How should it change over time as economic decisions change? What kinds of assemblages of people should be allowed to donate (or to directly pay for advertisements, etc.)?
My questions are meant as just that, not as implied support for any particular answer. I know there were limits in place before the Citizens United decision, but I don't know much about the history of this topic.
Oh come on. Nina Totenberg commits a fireable offense, and the "real problem" is no cameras in the courtroom? Seriously?
Somehow all the other journalists in Washington manage to cover things that don't happen with television cameras around, using informed sources. But when this particular elderly reporter screws up badly, we can't hold her to account but instead have to criticize the Court for not adding to the endless politicization of its proceedings by letting cameras in?
No way. This incident was a result of Totenberg's incompetence. Anyone doing their job properly would not have made it, and we don't need to televise or broadcast meaningless SCOTUS proceedings just so NPR reporters past retirement age don't embarrass themselves.
If SCOTUS doesn't allow cameras, recording devices, and doesn't do informational press conferences, then reporters covering SCOTUS have to cover whispered and overheard gossip. Nina Totenberg misheard some whispered gossip and reported based on it. If she had asked for clarity, "SCOTUS doesn't comment" would have been the reply.
Put another way, "Kremlinology" was the study of which Soviet officials were shaking other officials' hands in what order and who was standing next to whom to decipher the inner workings of a closed and secretive system. The solution to that gossip is not punish those that misread the tea leaves but to open up the system for transparent reporting.
I ask you to forgive my ignorance at outset of this question, perhaps I should know the answer, but I do not. What happens to the emergency/shadow docket when the Court rises or when we actually close the term? Also, what is the current status/scorecard on such docket as of now. Thanks.
How does someone get along with colleagues who write opinions completely contradictory to each other released on the same day, who, in one opinion, claims the Constitution is "color blind" and then, in another, says it specifically refers only to Black Americans even though that is nowhere in the text, who insists that there are other reasons than race to remove TPS from Haitians but ignores and omits the blatantly racist statements and lies told about them or who claims to be an originalist but then says the Framers couldn't have anticipated the future developments in society as a basis for their opinion?
Grand would be an interesting case for a sincere SCOTUS since it involves when a small private gathering for religious purposes becomes a defacto residential "church" (here: shul). However, I have the fear that this particular SCOTUS will declare that zoning regulations are unconstitutional if they conflict with a religious purpose. Which is to say that adding "and Church" to anything allows for anything to be anything.
So, Thomas and Gorsuch dissented from certiorari denial of Dershowitz’s campaign to get Sullivan 'reconsidered' (aka overturned). Which begs the question: Was Sam Alito asleep?
There's something odd about how "independence" has been turned into the north star of assessing SCOTUS's political leanings.
In a literal sense, I think it's true that SCOTUS is independent. You couldn't say that about the House; the Speaker of the House and members of the majority are dependent on the good graces of the administration to keep their jobs. John Roberts really can tell Trump to pound sand if he wants to, and does when he feels like it.
But noting a lack of dependence is not the same thing is as a lack of influence or alignment or partiality. Independence from the administration is the baseline, not the highest object to aspire to.
Spreaking of Justice Breyer, think that his exit left six Cath-Cons (5 male (please consider this in the light of their upbringing and early education) in charge, once again raising the Constitutional question of the Court's non-representativeness of the American population.
My view is we need a "Rainbow Court", one that avoids the toxic single-flavor of the current majority, obviously somewhat drunk on its power and, falsely, taking comfort from being appointed amidst shenanigans of the most transgressive kind.
A Rainbow Court might have from 1 to 3 members from each circuit. A gender balance would be essential, and as long as we have two dominant parties, a party balance too.
Racial & ethnic & cultural balance is tricky, I grant, but we must give muscle to American diversity.
There are too many lawyers; a difficult representation to even theorize about, but somehow we should be able to broaden the Court's experience of adult life in the U.S.
Dred Scott, Plessy, the current upset of the modern updating of the administrative state...all samples of the need to provide a Court of America; if Supreme, then also Representative.
YOU WROTE ABOUT “ … compromises that might allow the Court to rise above the politics of the moment … “
But what if there are Justices who have political motives … or religious motives … or cultural biases? What if they don’t want to compromise?
For example, perhaps a Justice rules that state legislatures can criminalize abortions, but does not admit that he or she is personally, religiously and politically opposed to all abortions?
Perhaps it is time to acknowledge that Justices — both in the past & currently — have been and are deciding cases based on their frame of reference, personal experiences, religious beliefs, political preferences, and (maybe even) biases?
How else could we have had such Supreme Court doctrines as these: humans can be property that must be returned to their owners; or, the Constitution prohibits laws that infringe “the right to contract;” or, segregation doesn’t violate equal protection; or, police can lie to suspects; or, a president can “officially” lie, mislead, and commit crimes with impunity (i.e., immunity).
I agree that Justices decide cases in part based on their frame of reference and on their personal views. Ideally. they should put the latter aside. Using one's "frame of reference", though, seems unavoidable (if I understand what you mean by that term).
As an example, in the Roe v. Wade case, I don't think it's possible to start with the Constitution's guarantee of "liberty" (or anything else in it) and to derive an irrefutable answer to the legal question. The English language is ambiguous; law is not an axiomatic logical system; in some (not all) cases, no answer is definitively correct.
I'm sure this is all obvious, but I'm often surprised at how dead-certain many people are about what the "right" answer is in cases that seem to be to be rife with ambiguities and uncertainties.
I wonder how much time the Justices spend discussing their opinions on any given case and critiquing each other's analyses. If they did that in good faith, as scientists and mathematicians do, there would probably be many more unanimous decisions.
But they don't all show good faith, and as far as I can tell from Amy Coney Barrett's book "Listening to the Law: Reflections on the Court and Constitution", that's not how the Court operates. They do each get to state their views on the case, but it seems that there's not enough focus on drilling into the weakness in each other's arguments. But none of us can really know what goes on.
Judges sometimes tell hung juries to go back and try harder to reach a unanimous verdict. It's a shame that there's no impartial Court overseer who can say that to the Supreme Court Justices when necessary.
I have a strong interest in legal research, public records, and information related to the justice system. Resources such as https://arrestss-va.org can be useful when researching publicly available records. My approach emphasizes factual information, clear organization, and responsible research.
I aim to make legal information more approachable for general readers.
This was an interesting roundup of the less-discussed developments from last week, especially with so much attention on the major rulings. I appreciate how the newsletter brings attention to issues that might otherwise get overlooked. For readers researching related public information, https://indianriverpropertyappraiser.org can also be a useful starting point for property-related records. The focus on providing broader context makes this issue especially worthwhile.
The discussion highlights how much important legal news can happen beyond the biggest headlines. It’s always useful to look at the broader developments and their practical effects. For those interested in local property information, https://highlandcountypropertyappraiser.org can also be a helpful resource. Posts like this make it easier to keep up with issues that may otherwise receive less attention.
At last, Hawaii develops State law to prohibit corporate political contributions at State level, to stop Citizen's United, and other States begin to borrow this device. So I wonder if the illegitimate far-right cabal of kings that undermines rule of law at SCOTUS are tossing out solid precedent on limits to contributions to national parties as a way to continue right-wing corporate rule?
Thank you Steve, for providing your skillful explaining of Supreme Court rulings and goings on. Now more than ever, I believe in more transparency from this court. And some changes in the way it functions.
The Court’s decision to strike down the Federal Election Campaign Act’s limits on “coordinated party expenditures”—the caps on how much party committees can spend in coordination with their own candidates—as a First Amendment violation is consistent with the principles that money is speech and organizations are people. In other words, “We the People”, the three words in the opening of the Constitution which mean the government’s power comes from the consent of the governed, not from kings or rulers, is now replaced by, or becomes only one constituency competing - in practice at a financial disadvantage – with “We the corporations” and “We the oligarchs”. I suppose these 6 Supremes do not believe the adage that Money is Power. It may not always always determine the outcome, but its influence is undeniable.
P.S. On the personal level I like the French phrase, ""L'argent ne fait pas le bonheur, mais il permet d'être malheureux dans le confort" - "Money can't buy happiness, but it allows you to be miserable in comfort".
Money is a token to represent property, not speech, as every economist knows, but SCOTUS likes the lie that money is speech, not property, because lies are speech and mightily protected.
And in the past property was protected to justify the Fugitive Slave Act and the compensation paid to loyal Union slave owners in the US, and more broadly by Great Britain and France when in the 19th century they outlawed slavery and took away the slaveowners' human property in the territories they controlled. Ah, the alleged (by some) foundation of the US as a Christian nation including the restrictions on speech by women to preach God's word.
The refusal of the Wampanoag to convert to Christianity played an important role as a cultural issue that fueled the first American Indian War. But it was the encroachment of colonists on Native property rights that broad it to a head. The Great Law of the Iroquois Confederacy protected tribal property rights, but the Wampanoag never joined that. They were their own confederacy and viewed property as passed down through the maternal line and used collectively for sustainable fishing, hunting, and farming among the 30 tribes in the Wampanoag kingdom. It couldn't be bought or sold. There's the conflict with "western civilization". Colonist claimed it and sold it, and the war was a genocide (mho)
The original Pilgrim colonists adopted the Wampum tribute currency among themselves to make up for their short-fall in coin, and the Natives traded furs for muskets, for example.
Of all the losers in the War of Independence surely indigenous tribes were the biggest. Many (more I believe) supported the British because they forbade colonists from expanding west of the Appalachians whereas the Patriots were determined to do so. But the British left these tribes to their fate (not sure what they could have done) after their defeat. In contrast they did make some effort to honor their promise of freedom to slaves who had joined their cause- some going to Canada and some to England - in several cases after negotiations with the victorious Patriots, despite the efforts and against the wishes of Patriot slaveowners who tried to recover their human property.
Spain founded Santa Fe (Holy Faith), New Mexico, in 1610, as the seat of its New World empire, ten years before the Pilgrims landed on Cape Cod. Taos Pueblo, just north of Santa Fe was part of the Native Pueblo Revolt in 1680 that temporarily expelled the Spanish empire. My father was born in Taos Pueblo in 1925, the son of a White hunter employed by the Natives to kill bear there because their belief was/is that we face the spirits of the bears we kill after we leave this world. The French founded New Orleans in 1718 and ceded it to Spain in 1763, regained it in 1800, all the while with bloody Native resistance. My ancestors immigrated to Santa Fe, through New Orleans, which America had acquired from the French in 1803, and after Santa Fe became a US territory in 1848. Washington led the Revolutionary War because he was the largest private land owner west of the Appalachians, and wanted more, and he was already at least one of the richest persons in the world thanks to his adding his wife's possessions through marriage. The Native people's lost most of their populations to diseases that evolved through European animal agriculture, which was finally engaged as a genocidal tool, not so much loss through the collapse of the British New World empire. Otherwise the Native peoples might have stopped the Europeans. If the indigenous civilizations had been as horrifically primitive in stewardship of life as European ones were then, and as Europe and America are now, then their own diseases might have wiped out Europe. Now we approach the end of the consequent extinction event, one way or the other.
I don't support the influence of "big money" in our elections, but I wonder what a fair process would be. Running for elections necessarily costs money, and if an individual wants to donate some money to a political campaign, should there be a limit? What about a group of voters wants to "assemble" to donate some money to a political campaign? How should the limit be determined? How should it change over time as economic decisions change? What kinds of assemblages of people should be allowed to donate (or to directly pay for advertisements, etc.)?
My questions are meant as just that, not as implied support for any particular answer. I know there were limits in place before the Citizens United decision, but I don't know much about the history of this topic.
Publicly funded campaigns and media appearances.
Stay safe from overcrowded news cycles, and "irresponsible escapades."
Oh come on. Nina Totenberg commits a fireable offense, and the "real problem" is no cameras in the courtroom? Seriously?
Somehow all the other journalists in Washington manage to cover things that don't happen with television cameras around, using informed sources. But when this particular elderly reporter screws up badly, we can't hold her to account but instead have to criticize the Court for not adding to the endless politicization of its proceedings by letting cameras in?
No way. This incident was a result of Totenberg's incompetence. Anyone doing their job properly would not have made it, and we don't need to televise or broadcast meaningless SCOTUS proceedings just so NPR reporters past retirement age don't embarrass themselves.
If SCOTUS doesn't allow cameras, recording devices, and doesn't do informational press conferences, then reporters covering SCOTUS have to cover whispered and overheard gossip. Nina Totenberg misheard some whispered gossip and reported based on it. If she had asked for clarity, "SCOTUS doesn't comment" would have been the reply.
Put another way, "Kremlinology" was the study of which Soviet officials were shaking other officials' hands in what order and who was standing next to whom to decipher the inner workings of a closed and secretive system. The solution to that gossip is not punish those that misread the tea leaves but to open up the system for transparent reporting.
Don't worry; I'm pretty sure I overheard Chief Justice Roberts say that Nina Totenberg is retiring, so you won't have to worry about her anymore.
You read it here first.
Thank you, Professor!
I ask you to forgive my ignorance at outset of this question, perhaps I should know the answer, but I do not. What happens to the emergency/shadow docket when the Court rises or when we actually close the term? Also, what is the current status/scorecard on such docket as of now. Thanks.
Michael
How does someone get along with colleagues who write opinions completely contradictory to each other released on the same day, who, in one opinion, claims the Constitution is "color blind" and then, in another, says it specifically refers only to Black Americans even though that is nowhere in the text, who insists that there are other reasons than race to remove TPS from Haitians but ignores and omits the blatantly racist statements and lies told about them or who claims to be an originalist but then says the Framers couldn't have anticipated the future developments in society as a basis for their opinion?
Grand would be an interesting case for a sincere SCOTUS since it involves when a small private gathering for religious purposes becomes a defacto residential "church" (here: shul). However, I have the fear that this particular SCOTUS will declare that zoning regulations are unconstitutional if they conflict with a religious purpose. Which is to say that adding "and Church" to anything allows for anything to be anything.
So, Thomas and Gorsuch dissented from certiorari denial of Dershowitz’s campaign to get Sullivan 'reconsidered' (aka overturned). Which begs the question: Was Sam Alito asleep?
There's something odd about how "independence" has been turned into the north star of assessing SCOTUS's political leanings.
In a literal sense, I think it's true that SCOTUS is independent. You couldn't say that about the House; the Speaker of the House and members of the majority are dependent on the good graces of the administration to keep their jobs. John Roberts really can tell Trump to pound sand if he wants to, and does when he feels like it.
But noting a lack of dependence is not the same thing is as a lack of influence or alignment or partiality. Independence from the administration is the baseline, not the highest object to aspire to.
Spreaking of Justice Breyer, think that his exit left six Cath-Cons (5 male (please consider this in the light of their upbringing and early education) in charge, once again raising the Constitutional question of the Court's non-representativeness of the American population.
My view is we need a "Rainbow Court", one that avoids the toxic single-flavor of the current majority, obviously somewhat drunk on its power and, falsely, taking comfort from being appointed amidst shenanigans of the most transgressive kind.
A Rainbow Court might have from 1 to 3 members from each circuit. A gender balance would be essential, and as long as we have two dominant parties, a party balance too.
Racial & ethnic & cultural balance is tricky, I grant, but we must give muscle to American diversity.
There are too many lawyers; a difficult representation to even theorize about, but somehow we should be able to broaden the Court's experience of adult life in the U.S.
Dred Scott, Plessy, the current upset of the modern updating of the administrative state...all samples of the need to provide a Court of America; if Supreme, then also Representative.
YOU WROTE ABOUT “ … compromises that might allow the Court to rise above the politics of the moment … “
But what if there are Justices who have political motives … or religious motives … or cultural biases? What if they don’t want to compromise?
For example, perhaps a Justice rules that state legislatures can criminalize abortions, but does not admit that he or she is personally, religiously and politically opposed to all abortions?
Perhaps it is time to acknowledge that Justices — both in the past & currently — have been and are deciding cases based on their frame of reference, personal experiences, religious beliefs, political preferences, and (maybe even) biases?
How else could we have had such Supreme Court doctrines as these: humans can be property that must be returned to their owners; or, the Constitution prohibits laws that infringe “the right to contract;” or, segregation doesn’t violate equal protection; or, police can lie to suspects; or, a president can “officially” lie, mislead, and commit crimes with impunity (i.e., immunity).
I agree that Justices decide cases in part based on their frame of reference and on their personal views. Ideally. they should put the latter aside. Using one's "frame of reference", though, seems unavoidable (if I understand what you mean by that term).
As an example, in the Roe v. Wade case, I don't think it's possible to start with the Constitution's guarantee of "liberty" (or anything else in it) and to derive an irrefutable answer to the legal question. The English language is ambiguous; law is not an axiomatic logical system; in some (not all) cases, no answer is definitively correct.
I'm sure this is all obvious, but I'm often surprised at how dead-certain many people are about what the "right" answer is in cases that seem to be to be rife with ambiguities and uncertainties.
I wonder how much time the Justices spend discussing their opinions on any given case and critiquing each other's analyses. If they did that in good faith, as scientists and mathematicians do, there would probably be many more unanimous decisions.
But they don't all show good faith, and as far as I can tell from Amy Coney Barrett's book "Listening to the Law: Reflections on the Court and Constitution", that's not how the Court operates. They do each get to state their views on the case, but it seems that there's not enough focus on drilling into the weakness in each other's arguments. But none of us can really know what goes on.
Judges sometimes tell hung juries to go back and try harder to reach a unanimous verdict. It's a shame that there's no impartial Court overseer who can say that to the Supreme Court Justices when necessary.
I have a strong interest in legal research, public records, and information related to the justice system. Resources such as https://arrestss-va.org can be useful when researching publicly available records. My approach emphasizes factual information, clear organization, and responsible research.
I aim to make legal information more approachable for general readers.
This was an interesting roundup of the less-discussed developments from last week, especially with so much attention on the major rulings. I appreciate how the newsletter brings attention to issues that might otherwise get overlooked. For readers researching related public information, https://indianriverpropertyappraiser.org can also be a useful starting point for property-related records. The focus on providing broader context makes this issue especially worthwhile.
The discussion highlights how much important legal news can happen beyond the biggest headlines. It’s always useful to look at the broader developments and their practical effects. For those interested in local property information, https://highlandcountypropertyappraiser.org can also be a helpful resource. Posts like this make it easier to keep up with issues that may otherwise receive less attention.