The Rule of Law (finally) Wins the Day

In a stunning decision by this arcane Supreme Court, in a narrow 5-4 ruling the Court rebukes not only the Bush Administration, but slaps Congress for passing a law that does not pass Constitutional muster.

The ruling that gives Guantanamo Bay detainees the right to challenge their detention is a ringing endorsement for the rule of law. In a ringing tone, Justice Anthony Kennedy, who wrote the majority decision, concluded by noting that our security depends not only on a “sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict.” Security also depends on “fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.”

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Kennedy wrote. “Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”

This case was an instance where the Executive Branch and the Legislative Branch conspired to go outside the framework of that law. The court had twice ruled against the Administration’s policies in Guantanamo, so Congress passed the Military Commissions Act (MCA) in 2006 in response. That act denied detainees of essential elements of the writ of habeas corpus, the right to challenge their detention adequately in court.

The Court ruled that the section of the Military Commissions Act dealing with detainee rights “does not purport to be a formal suspension of the writ” so it is invalid on that basis alone.

But, simply at its core the decision cements the rule of law and not the fear mongering that has ruled the day since September 11, 2001. At issue was Article 1, Section 9, of the Constitution, which states, in part: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” The court noted the long history of habeus corpus and the bedrock principal of Marbury v. Madison noting it is the Court’s job to decide “what the law is,” not Congress’s or the President’s.

On specifics, it ruled that the Pentagon’s combatant status review tribunals “fall well short” of what is necessary.

It said that the prisoner must have a “meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” He doesn’t have that in Guantanamo, the Court said. “The detainee has limited means to find or present evidence to challenge the government’s case against him,” the decision said. “He does not have the assistance of counsel and may not be aware of the most critical allegations. . . . There are in effect no limits on the admission of hearsay evidence . . . [and] the detainee’s opportunity to question witnesses is likely to be more theoretical than real.”

The habeas court also must be able consider “evidence not presented or reasonably available to the detainee” at the time of his status review tribunal.

And the decision said that the court that hears a habeas corpus challenge has one other crucial authority that Bush and Congress denied it: the authority to free the prisoner.

“The habeas court must have the power to order the conditional release of an individual unlawfully detained,” the decision said.

Finally, given that some of the detainees have been held for six years without the privilege of habeas corpus, the Court ruled that “the detainees in these cases are entitled to a prompt habeas corpus hearing.”

This decision was a victory not only for the detainees. It was a victory for fundamental human rights. It was a victory for our Constitution. It was a victory for the separation of powers, and for the authority of the judicial branch to decide what is the law of the land.

Scalia and Roberts on the Court rebuke the decision and said it "helps the terrorists." One wonders what part of the law "helping the terrorists" can be found. Is it a statute? A regulation? He said in his dissent the decision will almost certainly assure more Americans will be killed. Scalia is a political actor and does not hide his political intentions any more than does Cheney or Bush. It is a philosophy where everyone who is of Arab descent or is a Muslim is an acceptable target to detain forever. It matters not that Habeus Corpus finds its roots in the 12th century and is embedded in our Constitution as much, if not more than Freedom of speech. Shame on these shallow figures who will be interpreting, ahem making law for the next 25 years.

Guns, The States & The Supreme Court

Breaking news per the NY Times – the Supreme Court has decided to hear the challenge to the DC handgun ban. I am not well enough versed in Constitutional law or gun control issues, but I still have a few thoughts on the issue. Please feel free to add to this discussion in the comments section.

Clearly, the DC gun ban has not deterred the murder rate in DC, as shown by the uptick in murders this year. People are still able to get guns from Maryland and Virginia. It seems like American guns are wreaking havoc outside of the US too. I read the other day that 100% of the drug murders in Mexico are committed with American guns. 100%!

Which makes me wonder, if we do ban guns, where will they all go? Why are there so many in the first place? Who in their right mind really thinks the 2nd Amendment is meant for Americans to have their own guns? Why the hell do so many Americans need guns anyway?

As you can see, I have many thoughts on guns and the banning of them. Mostly, I just think the whole thing is ludicrous. Nevertheless, I do think, fairly certainly, that the Roberts Court will decide the gun ban is unconstitutional. Then Americans can have even more guns! Goody!

So, in honor of Thanksgiving, I propose a toast to the American gun lobby. Thank you NRA and your backwards-ass supporters. I’ll be thinking of you this Thanksgiving when I inevitably find out that another American, or perhaps Mexican, was killed needlessly by a gun.

Justice or not, Clarence Thomas is an Ass

It’s hard to miss all of the hullabaloo over Justice Clarence Thomas’ new memoir, My Grandfather's Son. It’s like nails on a chalkboard if you ask me.

I am appalled that a man that will go down in history as a conservative Supreme Court Justice (how exciting!), is such a whiny baby. I recently had a discussion with my girlfriend, who is an attorney, about it and she implied he had every right to be upset. Whenever I attack the Court, all my lawyer friends get up in arms about my lack of respect. I’m all for respecting the Court and those that sit on the bench, but I will still call an ass an ass, and Justice Thomas is an ass.

Thankfully, an Op/Ed contributor in the Washington Post agreed with me this morning. What a wonderful way to start the day!

Since her words perfectly sum up my thoughts of the man who sits on the high Court, I figure it’s easier just to paste them here:

Here is some of the evidence Thomas omits:
First, Hill did not wait 10 years to complain about his behavior. Susan Hoerchner, a Yale Law School classmate of Hill's, described how she complained of sexual harassment while working for Thomas, saying the EEOC chairman had "repeatedly asked her out . . . but wouldn't seem to take 'no' for an answer." Ellen Wells, a friend, said Hill had come to her, "deeply troubled and very depressed," with complaints about Thomas's inappropriate behavior. John Carr, a lawyer, said that Hill, in tears, confided that "her boss was making sexual advances toward her." American University law professor Joel Paul said Hill had told him in 1987 that she had left the EEOC because she had been sexually harassed by her supervisor.

Second, Hill was not the only former subordinate of Thomas's with complaints. Former EEOC employee Angela Wright described how Thomas pressured her to date him, showed up uninvited at her apartment and asked her breast size. "Clarence Thomas would say to me, 'You know you need to be dating me. . . . You're one of the finest women I have on my staff," Wright told Senate investigators.

Wright's account was corroborated by Rose Jourdain, a former speechwriter who, like Wright, was dismissed by Thomas. Jourdain said Wright had complained that she was "increasingly nervous about being in his presence alone" because of comments "concerning her figure, her body, her breasts, her legs."
Another former Thomas employee, Sukari Hardnett, said of his office, "If you were young, black, female and reasonably attractive, you knew full well you were being inspected and auditioned as a female."

Third, as Merida and Fletcher found, some of the behavior Hill complained about resonated with episodes from Thomas's past. Hill described an episode in which Thomas, drinking a soda, asked, "Who has put pubic hair on my Coke?" James Millet, a college classmate of Thomas's, recalled "an almost identical episode" at Holy Cross. "Pubic hair was one of the things he talked about," another classmate said. Jane Mayer and Jill Abramson, in "Strange Justice," found two others who recalled a pubic hair-Coke can comment at the EEOC.

It makes me feel so warm and fuzzy to walk down memory lane with the Justice. Aw…memories…how many women did this man harass anyway?! Mr. Thomas, I hope you enjoy your book royalties as much as you enjoy stripping away women’s rights, civil rights and civil liberties.

Parents Win One in New Jersey

NJ Div. of Youth and Family Servs. v. G.L. In this decision the Court considered whether a parent may be subjected to termination of her parental rights for failing to eliminate the harm to the child posed by her spouse. The trial court terminated the defendant-mother's parental rights because of her continuing relationship with the father, who earlier had been convicted of child endangerment for shaking to death another of his and the mother's children. The Court reversed. NJSA 30:4C-15.1 allows for termination of parental rights based upon behavior, not beliefs. So long as G.L. was an able mother and conducted herself in a way that secured the child’s safety, the statutory standard for terminating her parental rights was not met. There is no reason why G.L. cannot maintain her belief in and relationship with her husband so long as she does not live with him or allow him unsupervised visits with the child.

This is an update from a post on May 7th. The court sided with the Public Defender and Legal Services of New Jersey in its analysis indicating one parent cannot be held responsible for the fault of another. This is an especially important decision for poor parents in New Jersey, specifically poor mothers. 95% of the parents who come into DYFS care are poor and most are women, a shocking, but true statistic.

Segregation Forever

Lynn Massachusetts (Lynn, Lynn, the city of sin - you never go out the way you came in) seems to be the first test case for the new challenge of re-segregating America. The Justices June 28 ruling could effect up to 20 different districts in Massachusetts including the Metropolitan Council for Educational Opportunity, which has bused minority students to affluent suburban schools since 1966.

Lynn has a desegregation plan and lawyers for parents who have been challenging the desegregation plan for eight years filed briefs late Tuesday. That is five days I believe; as Newman said on Seinfeld: "What took ya so long." Yesterday, Patricia M. Capano, a school committee member, said Lynn officials were waiting to hear how state Attorney General Martha Coakley would interpret the Supreme Court decision. The Attorney General spokesperson had no comment.

Watch the flood of cases that overwhelms the courts. This is a tragedy. Lynn's current plan affects its 18 public elementary schools, which draw from small pockets of the district, more than its three high schools, said Capano. "It's a balanced system right now," Capano said. "Our neighborhoods are sometimes very cultural- and very race-oriented. So, if you keep a very low-economic neighborhood going to the same school, then you get an unbalanced school -- and that's what we fear."

We should all fear that, but we don't. We fear being asked to actually do something for the greater good, to do something for our neighbors and our community. Instead we want what is best for ourselves and who cares about our neighbors. Ask not what you can do for your country, ask how you can roll back 50+ years of integration. Easy, appoint two ultra conservatives to the court. It doesn't take a majority anymore just the right people in high places.

Re-segregating in Jersey City?

In Justice Breyer's dissent he mentioned the 200 or so districts that will be under attack because of this ruling. A case in point, Jersey City one of the most diverse communities in the country.

McNair high school is ranked the 27th best high school in the nation. The school turns away five out of six applicants. Some Jersey City school officials said on the day of the ruling that it is questionable whether it will have an effect on McNair, which aims to have a student population that is 25 percent white, 25 percent African-American and 25 percent Hispanic, with the remaining quarter coming from various backgrounds, officials said. But saying the new ruling won't affect this setup is wishful thinking at best.

McNair seeks the best candidates in each racial group, but students of Asian and middle eastern dissent have recently complained their applications were better than some students accepted. Clearly, this high school is in danger of keeping to its mission of a diverse group of students, especially with the gentrification of Jersey City taking hold of this city across the Hudson from lower Manhattan.

The editorial ends with this declaration:

The fact is that there is little if any desegregation in Jersey City. Student populations are decided by housing and neighborhood patterns. What little racial balance exists is in McNair. School officials had better not fall asleep on this ruling and come up with some new challenge-proof plan in determining what should still be a diverse student body.

Quote(s) of the Day: Breyer Slaps the Majority Pretty Good.

After reading a lot of the opinion (185 pgs.) it becomes clear Kennedy did not completely agree with the majority although he concurs, but says that to the extent that Roberts' opinion could be interpreted as foreclosing the use of race in any circumstance, "I disagree with that reasoning."

Justice Breyer does show them how wrong they are...

Justice Breyer:
These cases consider the longstanding efforts of two local school boards to integrate their public schools. The school board plans before us resemble many others adopted in the last 50 years by primary and secondary schools throughout the Nation. All of those plans represent local efforts to bring about the kind of racially integrated education that Brown v. Board of Education, 347 U. S. 483 (1954), long ago promised -- efforts that this Court has repeatedly required, permitted, and encouraged local authorities to undertake. This Court has recognized that the public interests at stake in such cases are "compelling." We have approved of "narrowly tailored" plans that are no less race-conscious than the plans before us. And we have understood that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so.

The plurality pays inadequate attention to this law, to past opinions' rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of racerelated litigation, and it undermines Brown's promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause.

And again Stevens:
The Court has changed significantly since it decided School Comm. of Boston in 1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision.

Also see Justice Stevens dissent in the recent free speech case. He said: "the current climate surrounding the war on drugs 'is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student." He goes on..."While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs,"

A Country That No Longer Believes in Integration

In the year 2000 I did not vote for Gore. I was tired of the wimp democrats. And as the criticism mounted the argument was that we would regret our vote for Nader because of the Supreme Court. That did not turn out to happen, no Justices were appointed until, in my humble opinion, the election 2004 was stolen again. How bad has it gotten?

Chief Justice John Robers wrote the opinion in a sharply divided Supreme Court (5-4 of course) overturned school district policies that made race a factor in admissions. The School districts of Seattle and Louisville argued that their children were unfairly denied positions in "magnet" public schools because of their race. Chief Justice Roberts found (along with Kennedy, Scalia, Thomas and Alito) the school districts failed to show that classifying students on the basis of race was the only way to maintain racial diversity.

Think Progress has much more on the story. The decision is now available. Seattle was never the subject of a desegregation suit, but took it upon themselves to voluntarily try to allocate race as a factor and allow for more diverse groups of students in schools. Louisville (Jefferson County, Ky) was the subject of a desegregation lawsuit, but the decree was dissolved when the court found the "vestiges" of prior segregation had been eliminated to the extent possible. But, the school district adopted a plan in 2001 that still chose to integrate. Parents of these school districts who opposed the plan brought the lawsuit arguing using race as the single factor violates the fourteenth amendment equal protection guarantee.

A recent study by the Center for American Progress said that racial minorities benefit from racially balanced schools and learn more and racial integration is a rare case where an educational policy appears to improve educational equity at little financial cost.

The majority court thinks otherwise. "In his opinion for the majority, Chief Justice John Roberts writes, 'Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.' But, Justice Stevens challenges him and says in his dissent: "The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, the Chief Justice rewrites the history of one of this Court's most important decisions."

And Justice Breyer argues in his dissent (taken from Think Progress:

Finally, what of the hope and promise of Brown? For much of this Nation’s history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode on separate buses, and studied in separate schools. In this Court’s finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. … It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live. […]

Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. … The plurality would decline their modest request.

The plurality is wrong to do so. The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.

Abortion advocates should be very nervous what this court will do with a woman's right to choose. Everything we hold dear is being shredded.

See here, however Congress is considering legislation to fix recent supreme court rulings.