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As we gather in our respective bunkers awaiting the white smoke from the Supreme Court, I thought a little history discussion might be in order. We’ve heard conservatives say many times that the Warren Court overreached, legislated from the bench, and divided America. It’s typically called the most controversial court in American history, and we know the reasons why. But the numbers tell a very different story. Even though Roberts has reigned on Maryland Avenue for just seven years as opposed to Earl Warren’s 16, the Roberts nonet (more accurately, quintet) has issued far more aggressive and in-your-face 5-4 rulings on controversial and high-profile cases and done far more to divide the country. I don’t know what they’ll do on health care, but they already deserve to displace the Warren Court in the controversy sweepstakes.

“Remember this? A classic left-right argument about Supreme Court nominations. If only Oprah was on the bench…”

First I looked at eight representative and major Roberts Court decisions in hot-button issue areas.

Race: Parents v. Seattle & Meredith v. Jefferson, which began as two cases and were eventually combined into one, also known as the Seattle/Louisville desegregation case. The Court ruled that local school districts basically couldn’t do anything to ensure racial diversity in their schools.

Abortion: Gonzales v. Carhart upholding the federal partial-birth abortion ban.

Campaign finance: Citizens United vs. Federal Elections Commission, which prohibited restrictions on many independent expenditures; also McCain v. Wisconsin Right to Life, which weakened key provisions of the McCain-Feingold law.

Equal Rights: Ledbetter v. Goodyear, which made it harder for (female) employees to sue employers on equal-pay grounds.

Free Speech: Morse v. Frederick, the so-called Bong Hits 4 Jesus case, in which the court limited free-speech rights of students.

Punitive Damages: Philip Morris v. Williams overturning an Oregon court’s smoking-based award to one ex-smoker.

Immigration: Lopez v. Gonzales, which ruled that a non-citizen can’t be deported for committing a drug crime that’s a misdemeanor under federal law even if it might be a felony under state law.

That’s eight cases (two in the campaign-finance realm). Seven of them—all but the last one—were 5-4 decisions. Exactly the same five in the majority, and exactly the same four in the minority. (Lopez was 8-1, supported by all but, yes, Clarence Thomas.)

Then I went back and looked at eight historic hot-button Warren Court rulings. Judging from the way the media write about these things today, you’d think these decisions were all narrow and highly contentious. In fact, of the eight, only one was a 5-4 ruling.

Brown v. Board of Education was decided 9-0. Ditto Times v. Sullivan, the famous First Amendment case that made it harder for public figures to sue for libel. Gideon v. Wainwright, which established the right to counsel if the accused couldn’t afford it? Now we’re getting into criminal procedure, the old “soft on crime” charge. Surely this one was more contentious? Nope. It too was 9-0. Ditto Loving v. Virginia, which struck down Virginia’s ban on interracial marriage, another goose egg. That’s a heck of a lot of change with no dissent.

Griswold v. Connecticut, the highly controversial 1965 precursor to Roe v. Wade, which started to sketch out a right to privacy, was a 7-2 decision. As was Roe itself. That’s right—the evil Roe, not a close call. Baker v. Carr, the one-person, one-vote ruling, was a 6-2 decision. Finally, only one, Miranda v. Arizona, was a hotly contested 5-4, and it was indeed immediately controversial.

My comparison proves this: the Warren Court, so often accused of recklessly imposing radical new rules on an unsuspecting American society, was often operating instead on the basis of a pretty broad consensus that was both legal and in many cases societal. Most of the rights the Warren Court expanded were supported by majorities then and are still supported by majorities now.

Some of its decisions were immediately controversial because of vocal and politically powerful minorities—Miranda (law-enforcement professionals), Roe (the nascent religious right), Brown (the South). But Warren worked to get consensus on many cases.

Conservative readers will here blame today’s liberal bloc for the fact that we don’t get such consensus today, but the reality is that once Roberts and Samuel Alito hit the bench, the Federalist Society clock started ticking loudly: We’ve got our five now, boys, and we don’t know how long we’ll have them, so let’s get moving. Desegregation? Boom, 5-4! Equal pay? Bang, 5-4! Campaign finance? Zap, 5-4! And so on. The express point has been to radically remake society, without a hoot of concern about whether it was being done by five or seven or nine. In fact, to most conservatives, if a decision infuriated the Court’s four liberals, so much the better.

The main thing that changed between then and now, instead, is that rabidly right-wing billionaires started throwing many millions of dollars into politics, forming and funding groups like the Federalist Society, which have managed to assert their will. They represent about the same 30 percent they represented back when Barry Goldwater won the GOP nomination. It’s just that now they’re organized and lavishly backed, whereas before they weren’t. In the 1960s, Nino Scalia would’ve ended up teaching at Notre Dame law school (where he belonged)—a crackpot speaker on a marginal rubber-chicken circuit that mainstream America could have blissfully ignored, instead of sitting on the highest court in the land imposing his 16th-century will on the rest of us.
And so: If we get a 5-4 ruling against the Affordable Health Care act or any part of it, this is the context to keep in mind. It will be another in a series of ferociously ideological one-vote-margin decisions from the court that we do not need history’s perspective to decide is far and away America’s most ideological. http://obrag.org/?p=62552

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The Supreme Court today answered the question that had arisen with regard to the Montana state Corrupt Practices Act. While we found it hard to believe that the original Citizens United ruling by the court actually "made law" and ignored more than a hundred years of campaign finance law and precedent, just like they did in Gore V. Bush in 2000. As we all remember, they ridiculously ruled in that case that "corporations are people" and "money is free speech", much like Jon Stewart on the Daily Show a few months ago said that "Park benches are mansions and dog-shit is money, too!" Both are absurd -- and the Conservative "tea party" five on the Supreme Court knew it -- are ignorant -- or both -- and just didn't care. Like we have always said. The rich and super rich do not need democracy very much because they are plenty of voice and free speech already (lots of money) -- and have adequate amounts influence and power when it comes to getting your way in Washington and in state legislatures -- without having to do community organizing, protested, conjuring up populist initiatives, or rallying all the rich guys at the capitol.

But the Supreme Court doubled down today. Montana and others had argued before the court that the Citizens United law in many cases had allowed, encouraged and created both the appearance the the reality of corruption in the political process. Anthony Kennedy had championed the push to have the conflict heard quickly -- saying that perhaps the court had originally erred in its judgement that Citizens United would cause neither actual corruption of the political process nor the "appearance" of corruption. But it was a red-herring -- a ruse. Nothing had changed -- the conservatives just wanted to squash it quickly so the Montana Corrupt Practices Act wouldn't prohibit corporate cash and largess from overwhelming Montana -- and so other states wouldn't get the bright idea that they could pass laws banning or limiting money injected into elections to. Apparently the conservative five not only saw no problem with elections being sold to the highest bidder -- nor the appearance of the electoral process having become a bought and paid for process -- by, for -- and of the rich and super rich -- so they could have there way on everything and "screw" everybody else. They ruled that Citizens United applied to individual states -- and over-turned existing -- and prohibited new laws from being passed to limit campaign contributions. http://spotlightondemocracy.com/category/conservative-supreme-court-ju
stices-are-corrupt/

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A professor at the University of Colorado on Monday responded to the Supreme Court's landmark immigration ruling by dismissing Justice Antonin Scalia as a "ranting old man," in retribution for his conservative dissent

Paul Campos, a professor of law at the University of Colorado - Boulder went on to suggest that "degeneracy" brought on by Scalia's old age, 76, had polluted his judgment.

"In his old age [he has] become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy," wrote Campos in the op-ed published in the liberal web magazine Salon.com.

Campos was not the only professor to go on offensive as the Supreme Court prepares to finish it current term with a historic ruling President Obama's health care mandate.

Adam Winkler, a constitutional law professor at UCLA, suggested in an interview with Talking Points Memo that Scalia had gone crazy or "finally jumped the shark."

"He claims to respect the founding fathers, but his dissent channels the opponents of the Constitution," said Winkler.

He added in a column that the "conservative justices were openly hostile" to the "Obama administration's position."

Other professors reacted with similar views to the decision which struck down part of the state of Arizona's controversial immigration policy.

In a comment to the The Nation, Georgetown Law Professor David Coyle said that the Arizona immigration law was designed to "make life miserable for immigrants" and that "we can and should celebrate the decision for the roadblock it has erected to the state law anti-immigration movement."

David Weber, Professor of Law at Creighton University, said that Scalia was very "acerbic" and that his opinion is "really a red herring to muddy the argument and somehow upset the populace."

Lastly, Harvard law professor, Laurence Tribe, said that he thinks Scalia "ought to reconsider the harm he does to the court as an institution when he indulges his famous wit in order to stab the president." http://colorado.campusreform.org/group/blog/college-professor-supreme-
court-justice-scalia-a-ranting-old-man

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So, Supreme Court Clarence Thomas neglected to report his wife Ginni’s income from a right-wing think tank. Or maybe “neglected” is the wrong word, because that sounds sort of benign or accidental. It’s more like he refused to do so, for years. Thomas’ wife is a longtime conservative activist, and she worked for the influential Heritage Foundation from 2003-2007. In his financial disclosure forms, under “spousal noninvestment income,” Clarence Thomas just checked the “no” box, every year.

Of course, everyone knows that Ginni Thomas is a partisan political activist who makes her living working for right-wing groups. So checking “no” in that little box every year is not just deceptive, it’s also pretty pointless. Unless you are simply against the idea of “disclosure” itself, on principle, as Thomas seems to be.

He will probably not be punished for this, by the way, because it’s extraordinarily difficult to “punish” Supreme Court members for anything.

This odd practice of routinely lying on forms was brought to light by the watchdog group Common Cause, who also recently wrote a letter to Eric Holder criticizing Thomas and Antonin Scalia for attending fancy Koch-sponsored functions before ruling, in Citizens United, that restrictions on corporate electioneering be lifted. Of course, neither Scalia nor Thomas believe that their personal and professional ties to the conservative movement should cause them to recuse themselves from politically sensitive cases. In fact, their attitude tends to be that everyone should just shut up and stop complaining about it. As Garrett Epps writes in The Atlantic, they — along with Republican fundraiser-attendee Samuel Alito — are openly flouting years of judicial etiquette. And they don’t really care. Scalia generally acts like he’d be much more at home on talk radio than in the Supreme Court. (Scalia’s Constitution lesson for Michele Bachmann and the incoming Tea Partiers was scheduled for today, by the way.)

Maybe the way to think about this without getting all upset is to just admire the refreshing honestly of a deeply, openly partisan Supreme Court. (Except that it’s basically partisan in only one direction.) http://www.salon.com/2011/01/24/supreme_court_conflicts/

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