The Supreme Court's Willful Blindness to Political Corruption

Justice[s] [Are] Blind

This semester, I'm taking a seminar called "President Power," in which we discuss (you guessed it) Presidential power from a legal standpoint. Each week, we are required to write short "discussion starters" responding to the reading, and since that's how we think of the blog (and I can't seem to stop myself from employing the same preachy tone as I often do in blog posts), I figured, "Why not make them blog posts?!" So, today I give you this week's discussion starter, responding basically to Free Enterprise Fund v. Public Company Accounting Oversight Board (2010). I'm modifying it to include links and a little more explanation where needed.

This Time It Counts! (Supreme Court confirmation edition)

We need to rethink the whole Supreme Court confirmation hearing process. Right now, it's spectacularly boring, mostly because of the lack of drama. Kagan will get up, say nothing of consequence, and eventually be confirmed essentially along party lines. This, despite writing herself in 1995 that judicial nominees need to speak up and actually answer questions.

The Court Dabbles in Terrorist McCarthyism

Today the Court came down with a decision in Holder v. Humanitarian Law Project. A lot of writing will be done in the next few days about how this decision distorted the First Amendment's doctrine, so I figured I'd jump in the fray. First, the Times Editorial's synopsis (because they did it for me, so why write my own?):

The case arose after an American human rights group, the Humanitarian Law Project, challenged the law prohibiting “material support” to terror groups, which was defined in the 2001 Patriot Act to include “expert advice or assistance.” The law project wanted to provide advice to two terrorist groups on how to peacefully resolve their disputes and work with the United Nations. The two groups — the Liberation Tigers of Tamil Eelam and the Kurdistan Workers’ Party — have violent histories and their presence on the State Department’s official list of terrorist groups is not in dispute.

But though the law project was actually trying to reduce the violence of the two groups, the court’s opinion, written by Chief Justice John Roberts Jr. on behalf of five other justices, said that did not matter and ruled the project’s efforts illegal. Even peaceful assistance to a terror group can further terrorism, the chief justice wrote, in part by lending them legitimacy and allowing them to pretend to be negotiating while plotting violence.

That's pretty perverse. Talking to terrorist groups, giving them legal advice, is now material support and thus illegal. The Court premised this on the old argument that money is fungible so aiding one section of a group (the humanitarian/political vs. the terrorist) is aiding all the others. While this argument is not obviously true with money (see, e.g., the US tax code, which separates the political non-profits from the apolitical, even if they're the same people), the Court then expanded it saying that by teaching them how to navigate the legal system or to act politically to achieve their goals rather than violently, a person is freeing up resources that the group would have used to now be used on terror. This just makes no sense. If they're acting as a terror group, they're never going to spend resources on teaching themselves how to act peacefully, so someone convincing them to do so is adding a service - it's not all zero sum.

The Supreme Court's New Miranda Rules - Perhaps a Boon for Defendants?

I was going to write about this shiny, new SCOTUS ruling as soon as I got home from work, but I just saw that Shani O. Hilton wrote most of what I wanted to say.

About the ruling:

Want to invoke your right to remain silent? You'll have to speak up.

In a narrowly split decision, the Supreme Court's conservative majority expanded its limits on the famous Miranda rights for criminal suspects on Tuesday – over the dissent of new Justice Sonia Sotomayor, who said the ruling turned Americans' rights of protection from police abuse "upside down."

Justice Anthony Kennedy, who wrote the majority opinion, said a suspect who goes ahead and talks to police after being informed he doesn't have to has waived his right to remain silent . . .

A right to remain silent and a right to a lawyer are at the top of the warnings that police recite to suspects during arrests and interrogations. But Tuesday's majority said that suspects must break their silence and tell police they are going to remain quiet to stop an interrogation, just as they must tell police that they want a lawyer.

PostPartisan Adds Zero Value to the Kagan Discussion

The PostPartisan link (which we have listed in our collection) is pretty funny.

On the Elena Kagan nomination to the Supreme Court, the White House has won the initial battle -- the battle over expectations.... Kagan’s qualifications for the court can only be called thin.... She cannot be regarded as a strong nominee, but the White House clearly believes she is a safe nominee.... During a pastel career, Kagan made one neon decision -- to ban military recruiters from the Office of Career Services when she was dean of Harvard Law School, based on her strong opposition to the “don’t ask, don’t tell” policy....Standing in the way of military recruiters may seem normal in academic circles, but it will seem radical in much of the country....This may not be enough to derail the Kagan nomination, but it will complicate it.

That's his whole story, basically. He starts out by saying that her record is thin, and her greatest asset is the ease of her nomination. He then proceeds to nitpick this one thing that might make her nomination harder, saying Obama gravely miscalulated but it probably won't derail her nomination.

So 1) Kagan's one virtue - ease of nomination - won't be so easy. (I also think Republicans will make up something if it isn't there, and his one military recruiter thing might very well be on the list, but it hardly matters), and 2) Obama gravely miscalculated, except it won't derail his nomination.

He claimed two things, and then refuted them. What exactly was the point of his post?

A collection of resources on Elena Kagan

Here are a few thought-provoking pieces on Obama's latest SCOTUS nomination, Elena Kagan:

• Her record of hiring almost exclusively White Men at Harvard Law School:
• The Race-Based Case Against Elena Kagan - Coffee House Talks
• Kagan’s Harvard Hiring Record a Vision in White - RaceWire
• On Kagan's Minority Hiring Record - 538
• Why Did Dean Kagan Preside Over a Whitened Harvard Law School? - RacismReview
• Her political ideology:
• Elena Kagan Is a Progressive on Executive Power - Slate.com
• Obama’s Next Supreme Court Pick :: Moderate or Strong Liberal? - thinkculture
• Will Kagan Take Up Stevens's Fight for Checks on Executive Power? - The Nation
• Centrist Kagan Brings ‘Impeccable’ Record, Says Cornell Law Expert - Newswise
• Why the inscrutable Elena Kagan makes everyone nervous. - Slate.com
  
• Her readiness:
• Untried, Untested, and Ready - Slate.com
• The latest on Elena Kagan - Salon.com
• Elena Kagan's Pastel Career - Washington Post's PostPartisan

The Race-Based Case Against Elena Kagan

This piece was originally posted on April 28, 2010 upon speculation that Elena Kagan would be nominated to the supreme court. We are reposting it due to news that she has actually been nominated.

Glenn Greenwald has been busily documenting the case against Elena Kagan for the Supreme Court (and for Diane Wood). Essentially, his main case against Kagan boils down to the fact that we (stunningly, since she's been an academic for twenty years) have no paper record of her, and the little we have shows that she has scary leanings on executive power and would move the court farther to the right on that crucial modern-day issue where Obama is as bad as Bush in every respect.

I believe that critique powerful, as we don't want to go in blind, but I want to highlight another, very troubling bit about Elena Kagan documented by Duke law professor (and Michigan Law grad/Michigan Journal of Race & Law founder and 2010 symposium speaker!) Guy-Uriel Charles (and quoted in yesterday's article by GG)

The Race-Based Case Against Elena Kagan

Glenn Greenwald has been busily documenting the case against Elena Kagan for the Supreme Court (and for Diane Wood). Essentially, his main case against Kagan boils down to the fact that we (stunningly, since she's been an academic for twenty years) have no paper record of her, and the little we have shows that she has scary leanings on executive power and would move the court farther to the right on that crucial modern-day issue where Obama is as bad as Bush in every respect.

I believe that critique powerful, as we don't want to go in blind, but I want to highlight another, very troubling bit about Elena Kagan documented by Duke law professor (and Michigan Law grad/Michigan Journal of Race & Law founder and 2010 symposium speaker!) Guy-Uriel Charles (and quoted in yesterday's article by GG)