Category Archives: Supreme Court

The Sacketts and the Clean Water Act – NYTimes.com

The Sacketts and the Clean Water Act – NYTimes.com.

Editorial

The Sacketts and the Clean Water Act

Chantell and Michael Sackett’s case against the Environmental Protection Agency before the Supreme Court on Monday might appear to be David versus Goliath. But those supporting the Sacketts with friend-of-the-court briefs are corporate Goliaths like General Electric and real estate developers eager to weaken the E.P.A.’s ability to protect wetlands and waterways under the federal Clean Water Act.

The Sacketts owned a small lot about 500 feet from Idaho’s pristine Priest Lake. They filled part of it with dirt and rock in preparing to build a house. The E.P.A. determined that the lot is federally protected wetland so the Sacketts needed a permit to do the work, which they did not seek. The agency ordered the couple to remove the fill because pollutants were being discharged.

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This case goes far beyond the Sacketts’ right to fill in their lot without a permit. If the Supreme Court allows them to seek pre-enforcement review, it will be handing a big victory to corporations and developers who want to evade the requirements of the Clean Water Act.

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Judicial Ethics and the Supreme Court – NYTimes.com

Judicial Ethics and the Supreme Court – NYTimes.com.

Editorial

Judicial Ethics and the Supreme Court

Chief Justice John Roberts Jr. tried to address growing concerns about ethical behavior and conflicts of interest on the Supreme Court in his annual report on the federal judiciary. But he skirted the heart of the problem: the justices are the only American judges not bound by a code of ethics.

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Another Year for Weapons – NYTimes.com

Another Year for Weapons – NYTimes.com.

Editorial

Another Year for Weapons

The F.B.I. reports that gun dealers submitted the names of almost half-a-million customers in the six days before Christmas, with December on its way to surpassing November, which had a record tally of 1,534,414 names submitted for background checks for criminal convictions and mental health issues. Only a little more than 1 percent of buyers are typically rejected by federally licensed gun dealers. No one knows how many more firearms were purchased through the gun-show loophole that enables black marketeering.

The F.B.I. data are particularly grim given the approaching anniversary of the shooting rampage in Tucson that left Representative Gabrielle Giffords gravely shot in the head, six people dead, including a federal judge, and 13 others wounded. In the nation’s shock and grief, politicians vowed gun reforms, like a ban on the 33-round assault clips that enabled the shooter to attack a crowd in an instant, improvements in the federal background check system and to have more states track and prevent individuals with histories of mental illness — like the shooter in Tucson — from acquiring guns.

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Supreme Court to mess with Texas – POLITICO.com Print View

Supreme Court to mess with Texas – POLITICO.com Print View.

Supreme Court to mess with Texas
By: Alex Isenstadt
December 15, 2011 04:56 PM EST

Redistricting is a process fraught with lawsuits — but few make it all the way to the United States Supreme Court.

Texas’s plan has, and its path to the nation’s highest court has been a long one — stretching from the backrooms of the state Capitol to a San Antonio courtroom. The stakes are high: how the nine justices rule will help determine who controls the House of Representatives.

Here’s POLITICO’s guide to the Texas redistricting battle.

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Filed under Constitution, election laws, elections, federalism, gerrymandering, issues, states' rights, Supreme Court, Texas, USA

Newt Gingrich and the Supreme Court: The liberal scholars who support his critique on judicial supremacy. – Slate Magazine

Newt Gingrich and the Supreme Court: The liberal scholars who support his critique on judicial supremacy. – Slate Magazine.

Newt and His Surprising Liberal Allies

He’s not the only one who thinks there is a huge problem with giving the Supreme Court final say on the Constitution.

Newt Gingrich has turned his guns on the federal judiciary, and a lot of predictable squealing—from both left and right—about the threat to the rule of law has resulted. But Gingrich’s public statements, and a more elaborate position paper posted at his website, deserve serious consideration.

The brouhaha began at the last Republican presidential debate when Gingrich declared that “the courts have become grotesquely dictatorial, far too powerful, and I think, frankly, arrogant in their misreading of the American people.” In a subsequent TV interview, as well as in the position paper, Gingrich argued that when the president and Congress believe that the judiciary has rendered decisions that violate the Constitution, they should be willing to impeach judges, strip them of jurisdiction, haul them before congressional committees, and abolish courts.

The position paper, “Bringing the Courts Back Under the Constitution,” challenges the theory of judicial supremacy, which holds that the courts enjoy the last word on the meaning of the Constitution. As Gingrich correctly points out, the theory of judicial supremacy does not appear in the Constitution and, while the idea has roots in constitutional history, the Supreme Court’s clearest endorsement of it has surprisingly recent vintage in a case called Cooper v. Aaron, decided in 1958. The founders’ writings shed little light on what should happen when the branches disagree about the Constitution. They differed among themselves and in any event did not have a clear understanding of how the government would operate once set in motion. But Thomas Jefferson did clearly reject judicial supremacy and instead advocated departmentalism, the doctrine that each branch enjoys absolute authority to interpret the Constitution within its domain. And judicial supremacy is hard to reconcile with the Madisonian vision of the branches holding themselves in equilibrium through their efforts to increase their power at the expense of the others. Extended to the Supreme Court, this reasoning implies that the Supreme Court will advance spurious constitutional interpretations to enhance its power, and that Congress and the president must be prepared to resist.

This idea might be unsettling but Gingrich has logic on his side. If judges really had the last word, then there is no remedy if they misinterpret the Constitution—aside from constitutional amendment, which is extremely difficult, and in any event futile if judges then misinterpret the amendment. From a Madisonian perspective, while it is entirely predictable that the Supreme Court would claim that its views prevail over those of the other branches, the other branches have no reason to accept this claim.

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Filed under Constitution, judicial independence, Judicial System, separation of powers, Supreme Court, Supreme Court, USA

What logic could possibly be behind Newt Gingrich’s crazy attacks on the federal courts? – Slate Magazine

What logic could possibly be behind Newt Gingrich’s crazy attacks on the federal courts? – Slate Magazine.

Courting Disaster

Newt Gingrich’s ill-advised war on the only branch of government that people believe in.

For a self-confessed epic character, Newt Gingrich has stage-managed himself into an epic piece of political stupidity. With his escalating attacks on the federal judiciary, he has confirmed that, if elected, he would place himself atop a government that simultaneously manages to be both a dictatorship and a theocracy. In recent weeks—and just as his presidential star was improbably rising—he doubled down on his initial claims that the federal courts “have become grotesquely dictatorial and far too powerful,” to offer up new promises that, as president, he would abolish federal judgeships, occasionally ignore the Supreme Court, and—in the manner of a tiny tyrant in khaki shirts and mirrored sunglasses—have federal marshals arrest errant federal judges and force them to testify before Congress about their unpopular decisions.

One is tempted to open up a can of lofty rhetorical whoopass to explain why each of these ideas offends the basic constitutional principles of separation of powers, and judicial independence, but really, why? Does anyone even have to explain why Gingrich’s plans to construct a federal judiciary out of his own rib, then terrorize it into imposing his constitutional vision on the nation is a staggeringly bad one? Not really, given that conservative commentators have ably done so already. Former Bush Attorney General Michael Mukasey last week called the Gingrich court plan “ridiculous,” “irresponsible,” “outrageous,” and “dangerous” and former Bush Attorney General Alberto Gonzales called it “intimidation or retaliation against judges.” Conservative legal analyst Edward Whelan dismissed Gingrich’s proposal for abolishing judgeships “as constitutionally unsound and politically foolish.” Conservative columnist George Will poked fun at Gingrich’s hysterical rant about how the 9th Circuit’s decision that the word “God” in the Pledge of Allegiance was unconstitutional was comparable to the court’s infamous Dred Scott decision. Wrote Will: “Really? It took four years of war and 625,000 dead to settle the slavery question; it took a unanimous Supreme Court a few minutes to swat aside the 9th Circuit’s silliness.”

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How Low Can the Judicial Confirmation Process Sink? – NYTimes.com

How Low Can the Judicial Confirmation Process Sink? – NYTimes.com.

December 14, 2011, 9:00 pm

Rock Bottom

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Filed under judicial independence, Judicial System, Supreme Court, Supreme Court, USA

The Supreme Court rediscovers federalism just in time for 2012 election. – Slate Magazine

The Supreme Court rediscovers federalism just in time for 2012 election. – Slate Magazine.

Not your Gingrich’s Supreme Court

The Supreme Court rediscovers federalism just in time for 2012 election.

Posted Wednesday, Dec. 14, 2011, at 4:53 PM ET

They say you are always fighting the last war. Perhaps the one place where that’s not the case is at the Supreme Court, where the justices are suddenly poised to fight the next one. When the court announced this week that it would hear a major Texas voting rights case, then took on the dispute over whether four provisions of SB1070—the draconian Arizona immigration law —it positioned itself at the forefront on a new constitutional fight about federalism and states’ rights. Throw in the justices’ decision to determine the constitutionality of President Obama’s health care overhaul, and you are looking at a trifecta of cases that will put the court into the spotlight only weeks before the political conventions open this summer.

But it’s worth pointing out that while the nine members of the court have now been inserted (or found themselves injected) into an election year in ways we haven’t seen since the New Deal, it is not with the sort of  hot-button issues that have made the court a political football for decades. Even though the GOP nominees will continue to rail against the elitist godless unelected social engineers at the high court, the pending cases raise none of their signature issues. That means that as we debate the role of the courts in America next November,  instead of the stale culture war sound bites that have made the court a voting issue for the past 25 years, it will be the concerns of Occupy Wall Street and the Tea Party that frame the way Americans think and talk about the court.

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Immigration Crackdown Also Snares Americans – NYTimes.com

Immigration Crackdown Also Snares Americans – NYTimes.com.

Immigration Crackdown Also Snares Americans

A growing number of United States citizens have been detained under Obama administration programs intended to detect illegal immigrants who are arrested by local police officers.

In a spate of recent cases across the country, American citizens have been confined in local jails after federal immigration agents, acting on flawed information from Department of Homeland Security databases, instructed the police to hold them for investigation and possible deportation.

Americans said their vehement protests that they were citizens went unheard by local police officers and jailers for days, with no communication with federal immigration agents to clarify the situation. Any case where an American is held, even briefly, for immigration investigation is a potential wrongful arrest because immigration agents lack legal authority to detain citizens.

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Filed under Constitution, due process, habeas corpus, immigration, issues, misconduct, police, Supreme Court, unreasonable searches, USA

Stopping the Free-for-All in Immigration Laws – NYTimes.com

Stopping the Free-for-All in Immigration Laws – NYTimes.com.

Editorial

Stopping the Free-for-All

The Supreme Court’s decision to review a federal court ruling blocking parts of Arizona’s notorious immigration law is troubling. It is arguably premature to take this case because there is no split among the federal appellate courts over states’ powers to enact such laws.

The court should use this opportunity to clarify the need for uniform laws in this area of vital national interest and stop the march of states taking immigration policy into their own hands. The Obama administration sued to stop Arizona — and later Utah, Alabama and South Carolina — because immigration is a federal responsibility that states cannot usurp.

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Filed under Arizona, Constitution, immigration, issues, States, states' rights, Supreme Court, Supreme Court, system of government, USA