Matt mentioned that Montana's ban on corporate contributions to political campaigns was recently thrown out by Judge Jeffrey Sherlock on the basis of the SCOTUS Citizens United decision. While his post touched on the in-state provocateurs and their possible foreign backing that sought to overturn the law that protected Montana's democratic government since 1912, I thought I'd quote from this New York Times article comparing 2010's secret corporate donations - via Citizens United - to Nixon's illegal corporate-fueled slush fund:
In this year's midterm elections, there is no talk of satchels of cash from donors. Nor is there any hint of illegal actions reaching Watergate-like proportions. But the fund-raising practices that earned people convictions in Watergate - giving direct corporate money to a campaign and doing so secretly - are back in a different form in 2010.
This time around, the corporations are still giving secretly, but legally. In 1907, direct corporate donations to candidates were legally barred in a campaign finance reform push by President Theodore Roosevelt. But that law and others - the foundation for many Watergate convictions - are all but obsolete. This is why many supporters of strict campaign finance laws are wringing their hands.
Certainly, it is still illegal for corporations to contribute directly to candidates. But they now have equally potent ways to exert their influence. This election year is the first since the Supreme Court's Citizens United decision, which allows corporations for the first time to finance ads that directly support or oppose political candidates. And tax laws and loopholes have permitted a shadow campaign network of Republican-leaning nonprofit groups to collect a flood of anonymous donations and spend it widely.
If the Republicans make big gains in the House and Senate on Election Day, there is rare bipartisan consensus that they will owe part of their victory to the millions of dollars raised and spent by these nonprofit groups, much of which has come from businesses.
The groups, including the Chamber of Commerce, the American Action Network and Crossroads GPS, which is linked to the Republican strategist Karl Rove, have committed to spending well over $150 million this year. President Obama has railed against these groups as they have poured money into races in which once-secure Democrats are hanging by a thread.
But the attacks may have only helped build the groups' fund-raising muscle. Crossroads GPS and a sister organization, American Crossroads, have received more than $100,000 in small donations through the Web, when they had expected most gifts to come in big checks. And the groups' leaders have only grown more influential - far more influential than the Republican National Committee, led by Michael Steele. Evidently, the corporate donors love having a secret route to influence politics and elect Republicans without showing their hands to a Washington still controlled by the Democrats.
So much for open elections and the democratic process.
Citizens United steamrolled previous court decisions that opined corporate involvement in our electoral process was unsavory and destructive to representative government. That is, the SCOTUS - or the radical elements therein - now considers the corporation "a burnished image of the good citizen." But given the involvement of corporations in politics in the weeks and months after Citizens United, you'd have to agree with the 1990 SCOTUS majority opinion in Austin v. Michigan Chamber of Commerce, which "lambasted" the entry of corporations "into the political arena" because of "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas."
Wait? What's this? Did I read this correctly? Republican Senators are attacking SCOTUS nominee Elena Kagan...because she admired Thurgood Marshall???
Of course, what the Republicans are accusing Marshall of - and "smearing" by association Marshall-admiring Kagan with - is their notion of "judicial activism." Yes, because Marshall said the Constitution, as originally conceived was defective. You, know, because it supported slavery.
Compare Marshall's form of "judicial activism" - belief that the Constitution was wrong in allowing people to own other people - with contemporary judicial activism, via Al Franken:
I think we've established very convincingly, we did during the Sotomayor hearing, that there is such a thing as judicial activism. There is such a thing as legislating from the bench. And it is practiced repeatedly by the Roberts court, and it has cut in only one direction, in favor of powerful corporate interests and against the rights of individual Americans.
This is a stunt, of course, a little theater to rile up the base to ensure they head to the polls in November, and a nod to those who are still upset about civil rights. I doubt they'd filibuster the nomination. That'd be pretty unreasonable, given that Kagan is hardly the most progressive choice.
Still, Thurgood Marshall? What's next, Martin Luther King?
And...well...is anyone else here kinda, sorta rooting for the GOP to derail Kagan's nomination? Maybe then Obama could nominate someone else, like Diane Wood...
Under Proposition 14, a measure that easily passed, traditional party primaries will be replaced in 2011 with wide-open elections. The top two vote-getters - whatever their party, or if they have no party at all - will face off in the general election.
Supporters argue that without parties picking candidates for the general election, moderates and independents will move to the fore, and voters will pay more attention to the electoral process.
Critics of the measure say it will give a huge advantage to candidates who have the most money or the widest name recognition.
Interesting, eh? It wouldn't be a bad idea for Montana, where a lot of elections are decided during the primary in districts that are heavily skewed Republican or Democratic. Take Missoula's HD94, where LiTW fave, Ellie Hill, beat out Lou Ann Crowley by 94 votes: there's no Republican challenger on the general election ballot. And even if there was, a Republican doesn't stand much of a chance in a district that was +38 for Obama. And while Ellie's probably cursing me for wishing a general-election opponent on her, wouldn't it be a good thing to have a meaning legislative ballot for HD94's voters in November? Likewise, across the state's conservative districts, many state representatives have already been chosen in the primary.
But...a primary allows an underdog. The elections are smaller and less expensive, the voters typically more committed and knowledgeable, elections more about policy and ideas than the general election's over-reliance on personal narrative. Primaries let more candidates enter the race -- imagine the pressure on non-establishment candidates to drop out for fear they'd steal votes from the establishment picks. And you could argue that Montana's open primary already blunts pure partisanship from selecting general-election opponents.
Oh, and in case you were hoping that publicly financed elections had a chance here in Montana -- for the Supreme Court race, say -- the SCOTUS, in its ongoing efforts to elevate the speech of corporate persons over everyday persons, issued a "temporary emergency order" for Arizona's publicly financed candidates from receiving matching funds of opponents "who haven't opted into the system." (There's an excellent segment on NOW that explains how publicly financed elections work.) The emergency order grew out of a 2006 SCOTUS decision against the "millionaire's amendment" of McCain-Feingold Act, which "allowed a candidate to raise more money through larger donations if his opponent was spending lavishly." Of the amendment, Justice Alito said it was a "'drag' on the free-speech rights of the wealthier candidate because he was penalized for spending more."
No mention was made of the "drag" on our free-speech rights because we didn't happen to be born into a multi-million-dollar inheritance, or happen to value things other than money. Like, say, family, farming, or study.
Ezra Klein today posted clips from the Rachel Maddow show in which Maddow interviews Glenn Greenwald and Lawrence Lessig for a case against and for Kagan. You've probably already read Greenwald's case against Kagan - essentially, he argues we have no idea what her ideology is, and what little we do know hints at support for executive power - but you may not be familiar with Lessig's, that Kagan was selected as a "persuader," someone to bring conservative-leaning justices over to more left-friendly decisions. (And Klein was not the first to notice that Kagan's charming, consensus-building politico personality is a lot like the president's.)
Maddow also had Dahlia Lithwick on - Slate's incomparable SCOTUS commentator - to pretty much shatter any notion that Kagan would be able to forge compromises with the likes of Roberts, Alito, or Scalia.
Of course, it's not Scalia, Roberts, or Alito who she has to persuade, but Anthony Kennedy. Jeffrey Rosen:
Obama has signaled that he wants a justice who can win Justice Anthony Kennedy to the liberal side of the Court in 5-4 votes. Given Kagan's demonstrated success winning over skeptical conservatives at every stage of her career, she seems ideally suited for this role.
Except that Scott Lemieux can find no evidence that Kennedy is "easily manipulated." "...[S]ome some Court observers conflate moderation with indecisiveness," writes Lemieux, "Just because a justice's votes are less predictable than some of their colleagues' doesn't mean that they are to be subject to manipulation." He also notes that the also-considered and more liberal Diane Wood "demonstrated ability to influence conservative colleagues..."
While Kagan may be unknowable, what is clear is that Obama missed an opportunity to have a known progressive voice on the court.
President Obama today formally announced his nomination of Solicitor General Elena Kagan to the Supreme Court. From the report:
"If the Senate confirms Ms. Kagan, who is Jewish, the Supreme Court for the first time will have no Protestant members. In that case, the court would be composed of six justices who are Catholic and three who are Jewish. It also would mean that every member of the court had studied law at Harvard or Yale."
But is she gay? Andrew Sullivan explains why that question is relevant.
The New York Times also profiled Kagan, in a report entitled "A Climb Marked by Confidence and Canniness." Some of the adjectives used to describe the nominee: "smart," "witty," "bold," "razor-sharp," "careful," "calculated," "open-minded," "pragmatic," "progressive," and "strategic."
The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday.
No due process is accorded. No charges or trials are necessary. No evidence is offered, nor any opportunity for him to deny these accusations (which he has done vehemently through his family). None of that.
Instead, in Barack Obama's America, the way guilt is determined for American citizens -- and a death penalty imposed -- is that the President, like the King he thinks he is, secretly decrees someone's guilt as a Terrorist. He then dispatches his aides to run to America's newspapers -- cowardly hiding behind the shield of anonymity which they're granted -- to proclaim that the Guilty One shall be killed on sight because the Leader has decreed him to be a Terrorist.
Greenwald also points out that the SCOTUS in its 2004 Hamdi case that American citizens have a right to challenge their detention by the government as "illegal enemy combatants." It seems obvious the Obama administration's policy to assassinate Americans suspected of "illegal combat" oversteps its constitutional powers - something that, as Greenwald points out, Obama the candidate acknowledged.
I admit I'm confused by the "Tea Party" movement. It's populist, right? So you'd think they'd want to advocate for government that's actually responsive to everyday Americans and that works in their interest. Right?
Last Thursday, Montana Attorney General Steve Bullock was served with a lawsuit filed by an organization "dedicated to fighting the radical environmentalist agenda" and a Bozeman-based Tea Party activist challenging the state's century-old ban on corporate political spending.
The suit, which also names Commissioner of Political Practices Dennis Unsworth, follows the U.S. Supreme Court's controversial Jan. 21 ruling that blocked the ban on corporate political spending, a ruling Bullock opposed.
The plaintiffs are the Colorado-based Western Tradition Partnership, which calls itself "the leading organization fighting the anti-jobs, anti-taxpayer policy agenda of extreme environmentalist front groups," and Bozeman's Champion Painting, owned by Ken Champion, a member of the Gallatin County Campaign for Liberty and the Bozeman Tea Party. Champion, according to the lawsuit, "is concerned with the way inflation, taxation, and spending are exploiting, impacting, and bankrupting America and Montana's small businesses," and he seeks to spend corporate funds to support candidates with similar political beliefs.
Program director of Montana Conservation Voters notes that the Western Tradition Partnership "would like to eviscerate the very laws that protect Montana's clean air, cold rivers, and public health..."
"I'm pretty nervous about Exxon or Arch Coal or someone else pulling out the stops and airing TV ads in state legislative races where individuals can only contribute $160 each, and where candidates are teachers, farmers and other regular folks."
Of course Exxon or Arch Coal won't run the ads themselves, they'll have the Chamber of Commerce do it for them.
Handing the reins of government to corporations is hardly my idea of "freedom." But based on the rhetoric of the Tea Partiers and other radical conservatives, it's apparent that they have already abandoned any notion that they have any civic responsibility for the state of their government.
And I'm still confused by the news that SCOTUS Justice Clarence Thomas' wife is starting a Tea Party chapter. As Andrew Cohen notes, her husband is in large part responsible for the government and its interpretation of the Constitution:
What part of the Constitution does she believe no longer means anything? What role does she ascribe to the Supreme Court, and to her husband, in making this so? To what particular "place" would she like to bring the Constitution and who would she like to help her along the way? What part of our current constitutional structure does she believe is leading us toward "tyranny?" And just exactly how does she define that word, tyranny? The same way Thomas Jefferson did or the same way Justice Clarence Thomas now does? And who in official Establishment Washington really fears tyranny anyway?
The idea of someone so close to power, so close to interpreting the Constitution, can lead a chapter of a populist "revolt" against a government based on its relationship to the Constitution is completely surreal.
The U.S. Chamber of Commerce is building a large-scale grass-roots political operation that has begun to rival those of the major political parties, funded by record-setting amounts of money raised from corporations and wealthy individuals....
The chamber's expansion into grass-roots organizing -- coupled with a large and growing fundraising apparatus that got a lift from Supreme Court rulings -- is part of a trend in which the traditional parties are losing ground to well-financed and increasingly assertive outside groups. The chamber is certainly better positioned than ever to be a major force on the issues and elections it focuses on each year, analysts think.
It figures that the Chamber of Commerce is there, hat outstretched, to catch the falling dollars from huge multinational corporations that Citzens United unloosed on our political system. Not that there's been much doubt about the CoC's mission. It's certainly not about the folksy "main street" businesses that it pretends to represent. And it's certainly not about workers or employees, taxpayers or citizens.
Besides the political system itself and your citizen, the big loser in this has got to be small businesses, as the ever-increasing payouts from big corporations dictates the policies, strategies, and efforts of chambers of commerce across the country. Run a small business, and happen to be worried about the long-term effects of climate change? F*ck you! F*ck your kids! The fossil fuel industry's shelling out big bucks for the chamber to carry its water. You don't matter.
By the way, when the CoC can organize a "grassroots" campaign, you know that word has lost its meaning.
Montana's Attorney General, Steve Bullock, testified today in front of a Senate hearing on the likely effects of the SCOTUS' recent Citizens United decision.
Bullock warned that it's at the state and local level where we may most keenly feel the impact of Citizens United, and illustrated that point with Montana's early history when copper kings and political corruption ruled the day. Local elections are cheap and plentiful, and unrestricted corporate money threatens not only our state officeholders, they threaten the independence of state-level courts.
"Last week, the Supreme Court reversed a century of law to open the floodgates for special interests- including foreign corporations- to spend without limit in our elections," Obama said. "Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps to right this wrong."
Justice Alito was seen mouthing the words, "not true," during this passage. Reaction from the right is hilarious.
In the history of the State of the Union has any President ever called out the Supreme Court by name, and egged on the Congress to jeer a Supreme Court decision, while the Justices were seated politely before him surrounded by hundreds Congressmen? To call upon the Congress to countermand (somehow) by statute a constitutional decision, indeed a decision applying the First Amendment? What can this possibly accomplish besides alienating Justice Kennedy who wrote the opinion being attacked. Contrary to what we heard during the last administration, the Court may certainly be the object of presidential criticism without posing any threat to its independence. But this was a truly shocking lack of decorum and disrespect towards the Supreme Court for which an apology is in order. A new tone indeed.
This is certainly somewhat different than previous outcry from conservatives about "judicial activism," eh? Especially when Citizens United was an actual example of judicial activism, where conservative SCOTUS justices saw fit to greatly expand the scope of a case brought before them to undo a century of precedent concerning the regulation of corporate money and politics. And as former SCOTUS justice, Sandra Day O'Connor, noted, Citizens United poses more of a threat to the reputation, independence, and efficacy of our judicial system than any paragraph in a speech ever could:
She added that last week's decision was likely to create "an increasing problem for maintaining an independent judiciary."
"In invalidating some of the existing checks on campaign spending," Justice O'Connor said, "the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon."
But based on previous rulings by the SCOTUS' conservative majority - from Bush v Gore to rulings on voter ID laws to Citizens United - it appears that some justices think the law should align with corporatist Republican electoral strategy by discouraging voters from going to the polls and removing roadblocks on corporations to allow them to dictate policy.
Great discussion on some of the reasoning surrounding Citizen's United, which reinforced the concept of "corporate personhood," and promises to unleash corporations on political campaigns.
James Fallows points out this statement from Chief Justice John Roberts, challenging the notion that corporations engaging in elections causes harm to shareholders:
"Roberts sharply challenged this line of argument. 'Isn't it extraordinarily paternalistic,' he asked, 'for the government to take the position that shareholders are too stupid to keep track of what their corporations are doing and can't sell their shares or object in the corporate context if they don't like it? ... ' "We the government have to protect you naive shareholders." '
As Solicitor General Elena Kagan pointed out, most folks own stock through mutual funds and retirement funds, and have little or no influence over corporate action or even knowledge of what the corporations are doing. Fallows:
Of course Kagan's response is the practical and real-world one. Virtually all such "wealth" as my wife and I hold, apart from our house, is in low-cost indexed mutual retirement funds. I literally have no idea which specific companies I might have bigger or smaller positions in. By the prevailing wisdom of the day, I'm behaving rationally for a non-expert prudent investor. By Roberts' standard, I am "too stupid to keep track" of what every one of these companies is doing and shifting my positions day by day in response. Or maybe just too lazy.
As long ago as 2003, Roberts owned no fewer than 46 different common stocks, on top of 31 different mutual funds, one ETF, and a REIT. I very much doubt that he was keeping track of what all of the corporations he owned were doing, and selling his shares or objecting in the corporate context if he didn't like it. And I don't think that he believed that his mutual-fund managers were doing that either. Maybe he assumed that the magical qualities of the efficient market hypothesis meant that he didn't need to do that, and that some other group of shareholders would do it for him....
As Justin Fox noted in a 2006 column, it's been some time since boards of directors have actually performed their function, "that of vigilant monitors of CEO pay and performance," having long since been taken over by the managers they were supposed to watch. Roberts' notion that corporations answer to any kind of populist shareholder pressure can't be characterized as merely quaint, but instead as dangerously oblivous.
Glenn Greenwald, on the other hand, defended the court's decision, arguing that it did strike down campaign finance laws that were overly burdensome especially to nonprofit organizations and that it won't give over more power to corporations because, essentially, they already control the body politic. Here's the main basis of his argument:
I tend to take a more absolutist view of the First Amendment than many people, but laws which prohibit organized groups of people -- which is what corporations are -- from expressing political views goes right to the heart of free speech guarantees no matter how the First Amendment is understood. Does anyone doubt that the facts that gave rise to this case -- namely, the government's banning the release of a critical film about Hillary Clinton by Citizens United -- is exactly what the First Amendment was designed to avoid? And does anyone doubt that the First Amendment bars the government from restricting the speech of organizations composed of like-minded citizens who band together in corporate form to work for a particular cause?
But, as Fallows, Fox, and Salmon point out, corporations aren't "like-minded citizens" who "band together" to "work for a particular cause." Unlike most non-profits I know, corporations are a mass of shareholders oblivious and captive to the irrational or biased political beliefs of a small group of executive managers. Ironically, that's what Justin Fox argues violates Milton Friedman's demand that corporate executives shouldn't "impose their own notions of social responsibility on corporations that were owned by others."
The individuals who make up the electorate in the United States are, as Friedman described, beings of many facets - their actions and their views shaped by pecuniary self interest but also by values, beliefs, and loyalties that might conflict with that self interest. The ideal for-profit corporation, on the other hand, is out to do nothing but make as much money as it can "within the rules of the game." It is supposed to behave in a fashion that for an individual would probably be described as psychopathic. And if corporations are allowed to play a decisive role in shaping the "rules of the game," we have effectively put the inmates in control of the asylum.
This feels like a pretty compelling justification for treating corporations differently from individuals in the political process.
Hard on the heels of the gut punch of Massachusetts' special election comes possibly the worst Supreme Court decision of our generation, Citizens United v. FEC. (Here's the pdf ruling.) In short, the Supreme Court ruled that corporations may spend freely on political campaigns. The effect?
A lobbyist can now tell any elected official: if you vote wrong, my company, labor union or interest group will spend unlimited sums explicitly advertising against your re-election.
"We have got a million we can spend advertising for you or against you - whichever one you want,' " a lobbyist can tell lawmakers, said Lawrence M. Noble, a lawyer at Skadden Arps in Washington and former general counsel of the Federal Election Commission.
The majority opinion essentially found that corporations - with the rights of "legal personhood" - enjoyed extensive First Amendment rights, utterly oblivious to the to the fact that corporations, well, aren't people.
In his dissent (pdf), Justice Stevens questioned the wisdom of granting corporations such sweeping individual rights, noting that the majority, in ruling the case this way broke with a hundred years' of precedent.
In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.
But you can plainly see the weariness in Stevens eyes and hear it in his voice today as he is forced to contend with a legal fiction that has come to life today, a sort of constitutional Frankenstein moment when corporate speech becomes even more compelling than the "voices of the real people" who will be drowned out. Even former Chief Justice William H. Rehnquist once warned that treating corporate spending as the First Amendment equivalent of individual free speech is "to confuse metaphor with reality." Today that metaphor won a very real victory at the Supreme Court. And as a consequence some very real corporations are feeling very, very good.
Congress and members of the public who care about fair elections and clean government need to mobilize right away, a cause President Obama has said he would join. Congress should repair the presidential public finance system and create another one for Congressional elections to help ordinary Americans contribute to campaigns. It should also enact a law requiring publicly traded corporations to get the approval of their shareholders before spending on political campaigns.
These would be important steps, but they would not be enough. The real solution lies in getting the court's ruling overturned. The four dissenters made an eloquent case for why the decision was wrong on the law and dangerous. With one more vote, they could rescue democracy.
That's right. The New York Times is claiming our democratic system is at stake with this ruling.
The paper is absolutely correct. Already corporations control our political systems; this ruling rolls back the meager protection we've had from mega-capital a hundred years. It's a raw piece of judicial activism, a blow against equality and economic egalitarianism, and will further erode whatever structures of meritocracy existent in the county, replacing it with a kind of plutocratic aristocracy, whose coats of arms will be company logos.
Oh, and the ruling will probably benefit Republicans in the 2010 midterms. But, as is too often the case with the SCOTUS' conservative majority, that's not a bug, that's a feature.
I haven't talked much about the state of healthcare reform - right now, all the action is in the Senate Finance committee and around Baucus' bill, in the form of amendments, amendments, and more amendments - 534 in total!
And everything there is to know about the amendments fits in one beautiful post - a work of art! - by Igor Volsky.
So...what now? How about a discussion of corporate personhood?
The SCOTUS is currently mulling a decision in Citizens United v FEC - a case that could have chilling repercussions on our democracy, if the court's conservatives have their way.
Last year, the court entertained arguments on whether the Federal Election Commission was wrong in blocking the distribution of a film critical of Hillary Clinton over a video-on-demand service. Citizens United, the nonprofit corporation that produced "Hillary: The Movie,'' calls the film a documentary; the election commission disagreed, deeming it the equivalent of an ad and a violation of the McCain-Feingold campaign-finance law. And many free-speech advocates shuddered at an interpretation of federal law that allowed a movie by an advocacy group to be subject to campaign-finance restrictions.
But instead of deciding just that issue, the court called for further arguments on a broader one: the distinction between the political rights of corporations and those of actual people. Three conservative justices have long been gunning to overturn a 1990 Supreme Court decision that allowed the government to impose restraints on how corporations can spend money during campaigns.
The Globe in this editorial condemns that conservative impulse, saying "...he distinction between corporate speech and individual speech is clear enough, and the importance of limiting the undue influence of money in politics is significant enough, that the court, in all its wisdom, should leave well enough alone."
Heck, I'd go further. I find the idea of corporate personhood vile, and the legal means to allow moneyed interests to pool their capital to thwart the will of the electorate. It was devised to serve railroad interest in the 1880s, and it's been dogging us ever since, as anyone who's been following the healthcare debate well knows. In essence, giving corporations the constitutional rights of individuals sets those eternally living and deep-pocketed entities above us - which is a kind of madness, really, if you consider that corporations are not reasoning creatures, with neither human needs nor reasoned beliefs.
The New York Times, like the Globe, also opines against expanding corporate rights, and gives us a brief glimpse into the minds of those that might unleash corporate power against us:
In an exchange this month with Chief Justice Roberts, the solicitor general, Elena Kagan, argued against expanding that narrowly defined personhood. "Few of us are only our economic interests," she said. "We have beliefs. We have convictions." Corporations, "engage the political process in an entirely different way, and this is what makes them so much more damaging," she said.
Chief Justice Roberts disagreed: "A large corporation, just like an individual, has many diverse interests." Justice Antonin Scalia said most corporations are "indistinguishable from the individual who owns them."
Maybe these justices should get out more and meet, you know, some people.
The New York Times recently opined that the SCOTUS' DNA decision was "appalling," because it denied citizens the right to access conclusive evidence towards their guilt or innocence:
Thursday's ruling will inevitably allow some innocent people to languish in prison without having the chance to definitively prove their innocence and with the state never being completely certain of their guilt.
As a matter of public policy, there is a legitimate question of how best to chivvy the states along as they legislate access to what amounts to new evidence made available by advances in technology. However, as the WaPo explains, this was an awkward case on which prisoner's rights advocates chose to hang their hats, since the prisoner is almost surely guilty...
Here's the thing, both the innocent and the guilty have a guaranteed constitutional right of due process. Mr. Osborne - the defendant in the case - may, in fact, be guilty. But...why should suspected guilt be a deterrent to the test? Aren't all convicts assumed to be guilty? Should the courts be furthered burdened by resolving requests for DNA tests on a case-by-case basis? Should due process be extended only to the innocent?
As I've written, prosecutors have already fought numerous tests for convicts who were subsequently cleared by DNA tests; those tests, then, serve as a citizen's last recourse for justice against the arbitrary caprices of the state.
The Supreme Court ruled 5-4 that convicted criminals don't have a "constitutional right to demand DNA testing of evidence that remains in police files."
Fortunately, relatively few people will be negatively impacted by the decision - 47 states and federal government already have laws "providing access to post-conviction DNA testing" - but it seems like an odd stance to take. Justice Stevens, in his dissent:
The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether respondent William Osborne committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice. The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise. Yet for reasons the State has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all.
Doesn't the Supreme Court think it has an obligation to ensure that justice is carried in the country's court system? And frankly, there's a pervasive problem surrounding prosecutors fighting DNA analysis in these cases. The New York Times:
A recent analysis of 225 DNA exonerations by Brandon L. Garrett, a professor at the University of Virginia School of Law, found that prosecutors opposed DNA testing in almost one out of five cases. In many of the others, they initially opposed testing but ultimately agreed to it. In 98 of those 225 cases, the DNA test identified the real culprit.
The mind reels. Blocking DNA testing is not about the money; in the SCOTUS case in question, Osborne offered to pay for the test himself. And it's certainly not about justice. Innocent convicts can be freed, and the real culprit can still be convicted for the crimes.
And DNA testing is the only sure method of forensic science. That is, convictions based on other forensic methods - fingerprints, ballistics, handwriting analyses, etc - aren't based on scientific fact. At least, that's what a recent National Academy of Sciences study reported:
For decades, forensic scientists have made sweeping claims in court about fingerprints, ballistics, handwriting, bite marks, shoe prints and blood splatters that lack empirical grounding and have never been verified by science.
This is just one conclusion of a two-year study by the National Academy of Sciences, which on Wednesday called for a wholesale overhaul of the crime lab system that has become increasingly critical to American jurisprudence.
The academy, the preeminent science advisor to the federal government, found a system in disarray: labs that are underfunded and beholden to law enforcement, lacking independent oversight and without consistent standards.
The report concludes that the deficiencies pose "a continuing and serious threat to the quality and credibility of forensic science practice," imperiling efforts to protect society from criminals and shield innocent people from wrongful convictions.
It would seem, then, that the SCOTUS would have a vested interest that all defendants - including those already convicted - should have full access to the DNA evidence in their case for testing. The court, after all, has the obligation to ensure that all citizens have a right to due process in the law.
On a slightly different note, while many prosecutors are (apparently) attempting to save their professional reputations by preventing citizens from using a valid scientific method to challenge their convictions, it would behoove current state attorney generals - especially Montana's Steve Bullock - to ensure that their crime labs are fully cognizant of the problems of forensic sciences. Montana should be especially sensitive, of course, because we've already been burnt by an overzealous (incompetent? corrupt?) crime lab director, Arnold Melnikoff, who used fantastic and invented statistics based on inexact hair analysis to ramrod innocent men into jail.
A solid Crime Lab based on hard science not only ensures that the right people go to jail, it'll both salvage the reputation of Montana's judicial reputation and ensure that convictions in the state won't be as subject to costly challenges. While Steve Bullock's nomination to head the state's Crime Lab, Dave McAlpin, is a smart political appointment - the Crime Lab director, after all, needs to navigate both the state bureaucracy and the legislature - McAlpin lacks any forensics experience. It's a fair question to ask, then, what Bullock and McAlpin plan to do in reaction to the National of Academy of Sciences report, to ensure that only the best scientific work is performed at the crime lab and used in prosecuting Montana's legal cases...
Does it disturb anyone else that Clarence Thomas -- described by Dahlia Lithwick thusly, "Of all the Summum aphorisms, my favorite is probably 'everything vibrates.' Whoever wrote that had yet to meet Justice Clarence Thomas, who spends this morning, as he does every morning of oral argument, in perfect, motionless repose" -- broke his customary inertness for a fringe Internet rumor?
In a highly unusual move, U.S. Associate Supreme Court Justice Clarence Thomas has asked his colleagues on the court to consider the request of an East Brunswick, N.J., attorney who has filed a lawsuit challenging President-elect Barack Obama's status as a United States citizen.
A Columbia University law professor speculated that Thomas accepted the petitiion "so it would go before the conference [of Supreme Court justices] where it will likely be denied." If he hadn't accepted it, the New Jersey conspiracy theorist could bring the petition to other justices.
Which, frankly, sounds like rationalizing to me, because I can't imagine any other justice even considering the petition. I guess some folks need to find method in the madness. The alternative is accepting that there's a SCOTUS justice who finds more merit in paranoid conspiracies than the Constitution.
The U.S. Supreme Court rejected an appeal Monday by a California city that asked the justices to overturn a lower court ruling requiring police to return medical marijuana that they seize from a patient.
In the November 2007 ruling, a state appeals court said California's medical marijuana law entitles patients to recover pot wrongfully seized by police.
What's this mean?
"It's now settled that state law enforcement officers cannot arrest medical marijuana patients or seize their medicine simply because they prefer the contrary federal law," said Joseph Elford, chief counsel of the advocacy group Americans for Safe Access and lawyer for the plaintiff in the Garden Grove case.
In short, this should give incoming Attorney General Steve Bullock all the assurance he needs to ensure that police and other law enforcement officials complay with Montana's law allowing the use of marijuana for medicinal purposes.
I like Dominic Holden's quote from a post relating to this decision:
The very notion of a "Drug Free America" has always been, as some famous dead guy once said, about creating laws in conflict with human nature in order to punish people. Cops now have to capitulate with drug laws they disagree with.
I love Dahlia Lithwick's coverage of the Summum case up before the SCOTUS. Here's a gem:
Of all the Summum aphorisms, my favorite is probably "everything vibrates." Whoever wrote that had yet to meet Justice Clarence Thomas, who spends this morning, as he does every morning of oral argument, in perfect, motionless repose.
There's an intersting First Amdendment case that went before the SCOTUS recently, involving a small church named "Summum" to place a monument to its "Seven Aphorisims" in a Pleasant Grove City, Utah, park where a monument to the "Ten Commandments" also rests.
The problem here is tricky. On one hand, the city that owns the park is claiming its right to display its current monument because it more closely represents the government's "speech," justifying its displaying one message, while rejecting another. (Justice Roberts: "You have a Statue of Liberty. Do we have to have a statue of despotism?") On the other hand, if the city clings too closely to the monument as an expression of its views, then the current monument likely violates the Establishment Clause, the separation of church and state.
The case is interesting in and of itself, but there's a subplot, too. During the cross-examination of the city's counsel, Justice Stevens asked if the government could "exclude the names of gay soldiers from the Vietnam Memorial"?
Mr. Joseffer had to be pressed to answer the question about excluding the names of gay soldiers. In the end, he said the First Amendment's free speech clause, at least, places no limits on whom the government chooses to honor.
Justice Scalia agreed. "It seems to me the government could disfavor homosexuality," he said, "just as it could disfavor abortion."
Scalia, of course, seems to make decisions based on how they might affect the Republican party's electoral choices. Bush v. Gore is the obvious case, in that it put the interests of George Bush above the voting rights of the Florida electorate, but it was also evident, say, in the recent SCOTUS decision allowing the Indiana voter ID law to stand even as it was acknowledged to right no known wrong, that was partisan in conception and effect, and that it violated the rights of some Indianans. (And let's not forget Scalia's feeble defense of the Bush administration detention and torture policies.)
So, while Pleasant City Grove's lawyer responded to Justice Stevens that the First Amendment is a vehicle that allows civic bodies to expand its speech and recognition of its citizenry's varied makeup, Scalia, from the same statement, saw in the First Amendment the right for polities to limit or even shrink speech and those that can participate in the public sphere.
Certainly that was the gist of his argument in Lawrence v. Texas. I'm guessing that's the argument that Scalia would use against gay marriage should the issue ever come up before the SCOTUS.
That's an awful narrow and limiting way to look at the world, isn't it?