Saturday, February 05, 2011

The Rot in America's Supreme Court

It used to be the subject of low grumblings but now influential American voices are coming out to condemn the corruption of their country's highest court.  The two main culprits (there are others) are Justices Antonin Scalia and Clarence Thomas.

An editorial in The New York Times eloquently sets out the problem and the damage it causes to American justice.

Justice Scalia, who is sometimes called “the Justice from the Tea Party,” met behind closed doors on Capitol Hill to talk about the Constitution with a group of representatives led by Representative Michele Bachmann of the House Tea Party Caucus.

Justice Thomas, confirming his scorn for concern about conflicts of interest and rules designed to help prevent them, acknowledged that he has failed to comply with the law for the past six years by not disclosing his wife’s income from conservative groups.

In Supreme Court opinions, they showed how their impatience for goals promoted in conservative politics is infecting their legal actions. They joined in an unusual dissent from a court decision not to take a case about the commerce clause that turned into polemic in favor of limited government. In an important privacy case, NASA v. Nelson, they insisted the court should settle a constitutional issue it didn’t need to.

Constitutional law is political. It results from choices about concerns of government that political philosophers ponder, like liberty and property. When the court deals with major issues of social policy, the law it shapes is the most inescapably political.

To buffer justices from the demands of everyday politics, however, they receive tenure for life. The framers of our Constitution envisioned law gaining authority apart from politics. They wanted justices to exercise their judgment independently — to be free from worrying about upsetting the powerful and certainly not to be cultivating powerful political interests.

A petition by Common Cause to the Justice Department questioned whether Justices Scalia and Thomas are doing the latter. It asked whether the court’s ruling a year ago in the Citizens United case, unleashing corporate money into politics, should be set aside because the justices took part in a political gathering of the conservative corporate money-raiser Charles Koch while the case was before the court.


crf said...

I think it is unseemly, but not enough to set aside a judgement and reargue the case. Scalia and Thomas gave legal reasons for ruling as they did. There is nothing not legally argued in Scalia and Thomas's citizens-united decision (even if it could be argued the other way). Appeals to reconsider ought normally to be centered within obvious errors in the ruling, rather than conflicts of interest claims. There should be a much higher bar to throwing out a decision than judges associating with people who would be affected by their judgements, and advocating with these people, outside the court, their point of view. Anything otherwise put in law would obviously be an unconstitutional limit on judges' freedom of expression: they'd be the sole and only citizens not allowed to be political.

Recusal ought to be expected only in very limited situations and based on develop case law in this regard (for example, a direct, specific financial or close personal interest, or a bias because of past legal work on the specific question being asked, none of which is the case here).

There's a lot of politics in law, inescapably. Elections matter. If enough sane people are elected, the quality of people they nominate to the bench will be higher, and the law better interpreted.

This is just another example of you getting what you deserve.

The Mound of Sound said...

I disagree CRF. The maxim about justice not just being done but being seen to be done governs this situation. Scalia has been at this for years. He went on freebie hunting trips with his pal, Dick Cheney, when he had before him litigation dealing with the vice president. No Canadian judge would consider anything of this sort. I've had judges recuse themselves because they had known a party decades earlier in college. There's a reason for the rule, the Times states the principles quite well, they're right.

BTW, I know you're a supporter of nuclear power. Have you ever gone to, Australian professor Barry Brooks site? He makes a very solid case for fourth generation, "fast" reactors. Among his points is that these IFRs can use what are considered "spent" fuel rods from conventional reactors. They can even burn weapons grade fissile material. Best of all, they don't create enhanced uranium by-products. It's intriguing stuff and, if he's right on the technology, it could be the only viable answer to getting ourselves off fossil fuels.

Orwell's Bastard said...

I recognize that isolated Canadian bloggers commenting on one another's posts isn't going to have much of an effect on U.S. politics or the checks and balances envisioned by the framers of the U.S. Constituion, but ...

there is, at long last, a recognition of how useless and ineffective progressive activism is when it's constrained by pointless concerns for "civility." Scalia and Thomas are corrupt thugs and unprincipled scumbags. As far as I'm concerned any strategy that kneecaps them and restrains, however temporarily, their ability to do damage is worth pursuing. It's not as if the right has any qualms about it. The only way to fight back effectively is to be just as nasty and focused as they are.

Playing nicey nicey with people like this is a recipe for failure. Thirty years of this and look where we're at. Time to push back.

The Mound of Sound said...

The progressive side could start pushing back by reclaiming their proper place within the Liberal Party and denouncing the Conservative-Lite crew now at the wheel who've driven that party into the ditch.

crf said...

Yes Mound, I'm an avid reader of nearly all the sane Nuclear blogs (and some of the more strident ones too), and I think Barry Brook is one of the clearest writers on this issue that there is.

Canada is, nominally, a member of a society to develop Gen4 nuclear power

Gen III+, however, is what is available now, and, in my opinion, ensuring this Canadian industry's strength is the most likely route to GenIV. You can't build an industry just on happy thoughts about the future.

What does that mean to bloggers who don't work directly on energy? I think it means just being aware that choices being made now (and that have been made) can have a big effect on what can be done in Canada in the future.

And there is, I think you've noticed, a lot of strong anti-nuclear opinion among many leftish bloggers, and, strangely (in contrast with the US), libertarian and rightist Canadian bloggers.

I think the rightists recognize that nuclear is the energy elephant that threatens the tar-sands near monopoly on new industrial growth. And that anything that threatens this monopoly is an enemy of Stephen Harper and must be starved, caged and tamed.

I have made the point before (on your post about Andrew Weaver criticising the conservatives being in bed with the tar sands companies): you're more likely to identify politically with the folks who are providing you with your salary. As long as the Canadian nuclear industry remains weak, and threatens to shed jobs, Ontario workers will not want to politically bite the hands of Albertans, who are providing work to Ontario engineering companies in support of tar sands operations.

This is the reason why Stephen Harper will not introduce a Carbon Tax, or cap-n-trade -- because that would provide an industrial boost to the renewable and, especially, nuclear industries. Industrial growth in Ontario would then not be tied almost exclusively to the tar sands, and Ontarians would not feel that they need to support the Albertan political narrative.