Removing the Blindfold from Justice

There is a statue in Dublin Ireland that stands atop the gates of the castle. It was meant to represent justice, but has a number of peculiar things about it. The first is that in Dublin, Justice wears no blindfold. Instead she is admiring a sword which she carries. Second, she has turned her back on the city and faces instead the castle. Lastly she carries a set of real scales that normally are perfectly balanced. Yet when the rains come in (as they often do in Dublin), one of the ends of the scales is sheltered by her arm, causing the scales of justice to tilt unfairly.

All of these facts were disturbing to the people of Dublin, and Ireland as a whole, as Dublin Castle, and the justice it represented, was made by their British oppressors. To them this statue represented the sort of “justice” they received from the crown. When Ireland won its independence one of the first things they did was to drill a hole in both sides of the scales, so they would never be unbalanced again. They could not reblind justice, nor make her face the people, but they made what changes they could.

In America we have long prided ourselves on the nature of our justice. In America Lady Justice has always been blind. Our constitution itself attempts to secure equality for all, and while we have not always achieved it, we have always strived for it. Until now. Now we have a President who wishes to do an abominable thing. Obama wants to remove the blindfold from Justice.

Obama’s nomination of Sotomayor is nothing less than this. He has even stated openly that he wants to appoint a Supreme Court Justice on the basis of “empathy”. This is a weasel term as much as calling attaching the label of “Patriot” to a well known and unjust act. Empathy has no place in our courts. Justice should be blind to empathy, and should be applied fairly to everyone regardless of their race, class, or situation. Empathy in the courts is just another way of saying “a different standard of justice for differing types of people”. While I will always support mercy in our law, when we apply our law it should be in a fair manner that is blind to circumstances. Everyone, low or high, should be treated the same. This standard for justice is one that has defined America for centuries.

But now we have a President who so hates America and our way of life that he wants justice to be applied unfairly. Make no mistake he has selected the right justice for the role. Sotomayor is a self avowed racist and sexist who believes latina women are endowed with more wisdom and grace than white men. For her a certain sort of “empathy” (better known as bigotry) is assured.

In the end, however, we should not be surprised by Obama, or his actions. After all he has already shown us that he would rather give our tax money with no strings attached to rich business men, than loan it with interest to blue collar workers. Why should we be surprised that he wants to apply justice unfairly as well?

-Angry Midwesterner

 

SCOTUS To Revisit Race and Voting

Given the whole Black President-Elect thing, it’s an interesting time for the SCOTUS to decide to revist the Voting Rights Act of 1965, you know, the one designed to keep people (read: Southerners) from suppressing the black vote. But in the rather mundane sounding Northwest Austin Municipal Utility District Number One v. Mukasey, the men (and woman) in black robes may well do just that.

The fast version is that notoriously historically racist states (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia) plus a number of counties and municipalities scattered throughout the country must get the Department of Justice to pre-approve (“get preclearance”) any change to the voting scheme they would like to make. The rationale here is that one election designed to disenfranchise people is one too many and historically racist areas ought not to be allowed that chance.

Enter good old Northwest Austin Municipal Utility District Number One, which has had a clean record on race issues. Given that record, they feel that they should be allowed an exception to the Voting Rights Act. There is in fact a provision in the law to allow government units that clean up to remove the preclearance requirement. The problem is that it doesn’t apply to things like utility districts, which is what the last court to hear the case said.

At least one justice on the SCOTUS disagrees, hence the case is up for broader consideration. In my mind there are about four possible legal outcomes, barring any unforseen technicality which results in the case being thrown out. Here are what they are and how I think the different justices will fall.

#1 Uphold the law as it stands

This is the “Defer to Congress” outcome. Congress wrote the law specifically leaving things like utility districts without the preclearance exception. This was intentional and while it may be bizarre and arbitrary there is nothing unconstitutional about it. Out of the current sitting justices, I expect Ginsburg and probably Stevens to back this approach, though I could see either of them compromising to option #2 if it meant a unanimous or near-unanimous opinion or it allows a united opposition to options #3 or #4.

#2 Widen the clean-record exemption to include things like utility districts

This is what I’ll call the “Minimalist” outcome. Right the obvious injustice, leave everything else stand. Ostensibly this should have Chief Justice Roberts’ name written all over it, but given his terrible record of bringing the court to consensus he may well opt for #3 out of frustration. Expect Kennedy and Souter to be pushing hard for this option.

#3 Apply a tougher standard to discrimination voting restrictions

This is the “We Ain’t Racist No More” option. Though Congress keeps on extending the preclearance requirement — most recently in 2006 — some justices may be persuaded that the whole preclearance for the whole south thing is getting a bit ridiculous and the requirement ought to be much more carefully curtailed. This is an option that I don’t think any justice will start favoring this option, except perhaps Alito, but if Kennedy and Roberts are feeling mean, may be where the court ends up.

#4 Strike the whole law down

This the “Hate the Darkies” outcome. According to this option, racism is sufficiently past tense that the entire preclearance requirement is now disproportionately burdensome and the entire requirement should go away. The fact that Congress came to the opposite conclusion in 2006 is irrelevant. Or perhaps the law violates a state’s right to abuse its voters or something like that. Expect Thomas, self-hating black man that he appears to be, to strongly advocate for this position. Scalia will also likely start here too, but I could see him moving to #3 or even #2 depending on his mood.

What do you think? Have I utterly misrepresented your favorite justice? Or are you just pissed that I called you a racist for favoring #4? Do let me know and feel free to be angry.

 

Dialogue with the 12 Angry Men: The Supreme Court: The NRA’s Bitch?

The Supreme Court of the United States just struck down the Washington D.C.’s ban on handguns arguing that it was unconstitional. But were they right, or has the SCOTUS dropped down on it’s knees before the almightly NRA? Or are they defending freedom and justice worldwide in a fashion worthy of Superman? The full text of their opinion can be found here. The 12 Angry Men discuss…

Angry New Mexican
The District of Columbia v. Heller ruling shipped with it’s own set of knee-pads for the SCOTUS. And a tube of astroglide. And a sawhorse. Because at the end of the day, the ruling was nothing so much as a sell-out to the NRA. Now, granted, the SCOTUS didn’t go out and endorse the public ownership of crew-served weaponry, but barring that minor oversight, the Opinion of the Court, as penned by Justic Anton “Kill ’em all” Scalia, was the largest victory in court for the NRA in decades. Let me explain.

The first holding of the court was another wonderful example of conservative judicial activism. The court held that the Second Ammendment grants “an individual right to posess a firearm unconnected to service in a militia.” While that opinion has been widely held by many Americans and has been the de facto policy of the land in many states, it’s really not what the Second Ammendment says, given that it allows for the right to bear arms explicitly due to the need of a militia. Justice Stevens notes as much in his dissent.

Second, the court overturned the District’s requirement for trigger locks. Nevermind the fact that trigger locks save lives each and every year — by making guns less likely to be accidentally fired — the iron will of the NRA will broker no exceptions. The Court’s assertion that trigger locks makes it “impossible for citizens to use arms for the core lawful purpose of self-defense” is laughable. Justice Breyer’s dissent points out the absurdity of the majority’s reading of the DC statute which lead to this holding.

Finally, the court struck down the ban on handguns because the law “amounts to a prohibition on an entire class of `arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense.” The holding there is a bit disturbing since the identical logic could be used against say, an assault weapons ban, should assault weapons become more popular among Americans (no doubt the NRA already has this idea in mind). The idea that if a sizable minority of American’s use gun X nobody can ban it, is another blow to federalism, as it potentially allows (a minority of) states with liberal gun laws to override the laws of those who have stricter laws.

For all these reasons, and the others that Justices Stevens and Breyer enumerate, this was a bad decision. But I’m sure Justice Scalia will have a nice hunting vacation sometime this fall.

Angry Overeducated Catholic
Well, you are of course, free to make up meanings for words whenever you wish, but for those who care about the accepted meanings of words, here’s what the actual Second Amendment actually says:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Let’s leave aside arguments over the meaning of Militia in the 17th and 18th centuries, and just point out that the structure is: “For this reason, this right shall not be infringed.” Whatever the reason is, it cannot override or destroy the right that follows. It may inform our understanding of limits to it, but not so far as to be a weapon to destroy the natural right being enumerated. And that right is clear: the right of the people to keep and bear Arms.

The Constitution can enumerate rights of states, and if the writers had intended the revisionist meaning ANM proposes, they certainly could have said “the right of the states…” But their intent was never to simply support the states over the Federal government, but to state clearly that basic rights of humanity include the right to the means of defense, survival, and—if need be—rebellion against tyranny. Let’s not forget that these were radicals, folks—radicals who had just overthrown their King and “lawful” government not 20 years ago.

And the notion of “conservative judicial activism” is laughable here. Originally, of course, pesky things like the Bill of Rights did not apply to the states or localities. Established churches, draconian gun regulations, trampling civil rights—all fine at the state level, originally. “Activism” is particularly funny here, because the champion of Incorporation (incorporating the Bill of Rights into the Fourteenth Amendment which does explicitly apply to the states) was, of course, a strict constructionist. Indeed, he was in many ways similar to Scalia in his belief that we should actually follow the document we have and not the “living document” we’d like to have.

So, perhaps rather than shilling for the NRA, Scalia is simply being faithful to that icon of Incorporation, Hugo Black!

 

Triumph of the Rule of Law

Today, the Supreme Court of the United States issued a 5-4 decision stating that:

Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas corpus….[T]he Government has not established that the detainees’ access to the statutory review provisions at issue is an adequate substitute for the writ of habeas corpus. MCA §7 thus effects an unconstitutional suspension of the writ.

[…]

While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.

[…]

It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined. We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

The determination by the Court of Appeals that the Suspension Clause and its protections are inapplicable to petitioners was in error. The judgment of the Court of Appeals is reversed. The cases are remanded to the Court of Appeals with instructions that it remand the cases to the District Court for proceedings consistent with this opinion.

It is so ordered.

With those words, the Court declared that at least some of the “unlawful combatants” at Guantanamo Bay have every right to a prompt habeas corpus hearing before Federal courts, striking down previous rulings and declaring the policies of the Administration barring habeas corpus unconstitutional and unlawful.

This day was a triumph for the rule of law.

But let’s be clear about what the triumph is here. It is not the specific decision. If the Court had ruled the other way (which it might well have given the 5-4 nature of the decision), that ruling would have been an equal triumph. No, the triumph here is not that these detainees are finally going to get their day in court.

Rather, it is that they have already gotten their day in Court.

A group of detainees: some of whom are almost certainly enemies of the United States and dedicated to our destruction; some of whom are surely vicious killers guilty of murdering, raping, and torturing innocents whose only crime was daring to differ in matters of politics or religion; and many of whom are probably quite justly imprisoned as deadly threats to our nation and her citizens. These same detainees, imprisoned in a secretive military prison and isolated from all normal contact with society, have successfully brought their case before the highest Court in the United States.

These detainees, imprisoned as deadly threats, have had their pleadings heard, considered, and judged as if they were the pleadings of any upstanding citizen of the United States. Their case was made by lawyers, responded to by the United States government, and heard respectfully by federal judges. Men who the government claims would happily butcher the entire Supreme Court received reasoned judgment from that Court.

That their case prevailed may be just or unjust, good or bad. On that men of goodwill can rightly disagree. But that their case was brought before the Supreme Court in the first place, that the Court had both the will and the power to hear it and render a verdict, and that that verdict has power to effect real change, those things must be acclaimed by all those who treasure the rule of law.

As the Court noted in its Opinion:

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch….The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.

It is so ordered.