So, Peter!

I’m glad to be here and am looking forward to your comments and thoughts.

Welcome Professor Edelman! It is an honor to have you here at firedoglake.

Welcome, Peter — so great to have you hear to discuss this today. It seems like every election year — especially the presidential ones — progressives gear up for the election cycle without finding a way to effectively discuss the importance of the courts. And the importance of the impact of federal election results on the federal courts, in particular.

There are so many gut issues involved: labor and employment, equal protection, civil liberties, choice…many which hit home for a lot of people in their everyday lives. But we never seem to find a way to make that clear in a political sense. Looking forward to talking about this today.

Thanks so much.

This isn’t really a suggestion on how to make it more of an issue, but do you think part of the reason the courts aren’t an issue for progressives is because many still think the ideal of the Warren Court is still alive, so there is a complacency/sense that the courts aren’t in a lot of trouble? That the courts are still an institution that favor these sorts of values? If so, what kind of ruling would it take to really shatter that? It seems like the Roberts Court is making inroads, but will it come to something as drastic as directly overruling a landmark decision like Roe or Miranda? Which may not happen, since conservatives seem to have mastered the art of chipping away without directly overruling yet achieving the same effect…

Welcome and thanks; Would you list any justices of the SC for the last 100 or so years that has ever come out and made public position statements to affect elections, or the public discourse on “hot” topics. I do not recall this ever happening before, but alas, I am not that old a tree.

Professor Edelman – Thanks for being here today, I really enjoyed your article above!

Justice Scalia keeps telling people to get over Bush v. Gore. Besides the political results of the case, the problem troubling many of lawyers I know is the legal reasoning itself. Other than Bush v. Gore, has Justice Scalia ever held there was an equal protection clause violation in a voting rights case? More importantly, why should a person who believes in the rule of law not be troubled by an opinion in which the Court expressly states its opinion has no precedential value?

I watched a video of a debate — moderate by John Yoo, actually — at Boalt Hall, with Susan Estrich and William Kelley as two of the participants. They were discussing the election and its potential impact for the courts. And Susan Estrich said something that I think is so true in terms of what is needed in this particular time in our history: people with courage and integrity to be appointed to the federal bench. Clearly, though, that is going to have different meaning to different people, depending on political philosophy and their various leanings — as we’ve seen in some of the proposed nominees from the Bush Administration that were non-starters even with a number of the Republicans in Congress the past few years.

From my vantage point, integrity is really key — and a willingness to look at the law and the facts as they are in each, individual case, in a fair way. Something that, alas, appears to have gone out of favor in some judicial circles. Peter, you’ve been practicing for a while — what are the qualities you’d most like to see in the judges you are before?

I think that’s a part of it for a lot of folks who cannot believe that all of the things they think are carved in stone will ever just flow away. I know the Ledbetter case was a huge eye opener for some labor lawyers I know — who had been practicing under the prior precedent for years. That was a huge watershed reversal and they did not see it coming…even with the prior positions that both Alito and Roberts had taken on those types of cases when they were on the lower courts.

I think you’re right, based on the evidence we have, that a really terrible decision might get people’s attention. You may remember that the Webster decision on abortion (I mentioned Justice Scalia’s concurrence in that one) did have a strong effect on the public and played a significant role in the election of a large number of Democrats in the 1990 congressional elections. Of course that’s a pretty unsatisfactory way to get people’s attention. What I continue to hope is that people organizing at the grass-roots level during this electoral could talk about the importance of the Supreme Court in people’s everyday lives. We need a phrase with some instant appeal — the progressive counterpart of “activist” judges.

I was trying to think of that, too. I know that Justice Marshall — before he was a justice, though — had a series of interviews about civil rights law where he talked about the importance of elections on that area. But I cannot think of a sitting justice in my memory who has done so like that…

I don’t think Supreme Court Justices can or should get mixed up in the politics of this, other than by what they say in their opinions. I don’t know of any time historically when they did. Of course they often do say in their opinions that a particular decision is totally unjustified and will have a terrible effect — look at Justice Breyer’s terrific opinion in the Seattle and Louisville cases last year.

I think appointing such people is great, but I wonder, too, what it will take to get Democratic senators to go to the mat for such nominees. I know that Clinton considered nominating some wonderful people to the bench, but was told those nominations would be DOA by Republicans in the Senate. Until recently, though, it seems Bush nominated a lot of truly horrible jurists (William Pryor, Jay Bybee, the list goes on and on) that, if they didn’t exactly sail through confirmation, made it onto the bench. I think it all comes back to the original question–how to make this a priority for a constituency so it translates into a priority for those in office. Clinton could have nominated such individuals and fought for them the way the Bush administration did for their nominees, but it seems the political will just wasn’t there.

I much enjoyed your appearance at the JFK Library to mark the 40th annum
of the RFK campaign and thank you for those years of service. The way to
get the discussion topic into focus is unclear due to the untimely death
of the press, the burden having now fallen to the blogs to take up that
cause just as it has the war. I cannot imagine how the civil rights
movement of the 1960’s could have happened without the press of the era
having the ethics of public service driving the coverage. The blogs
can cover an issue and generate discussion that can encourage a broader
public discussion in some elements of the modern press, but television
seems a lost cause barring a revision of the FCC and conglomerate media.
I would like to see you discuss this with Bill Moyers sometime, you
could have a conversation along historical lines on this that could
help us all get started in the right direction.

“how to inject the looming dangers to our rights and liberties into the current electoral conversation.”

One major problem is the lack of a cogent, honest news media. One major asset is the internet.

And how realistic is it to consider impeachment of Supreme Court justices for lying during confirmation? I hear this consideration often.

If the court were to make a decision that went against the very fiber of the corporatist view of America the Media would be all over it, decrying its unfairness. Only then would court decisions reach into the living rooms of America. That, or perhaps getting Ken Burns to make a documentary on the Supreme Court. Otherwise I think legal decisions are out of the average (uninformed) voter’s consciousness.

My impression of this current Court is that of a few feudal lords.
They’ve exercised their “droit de seigneur” and now tell us to “get over it.”
Nope.
We need to spread the word that these guys think we’re peasants and they are rulers, and maybe people will see how unAmerican that is. Maybe people will wake up.

It seems to me from my memories of history classes, that if Scalia, Alito, and Thomas succeed in turning the Constitution on its ear and back in time, that they should be taking themselves off the bench.

I seem to have memories that African-Americans and Italian-Americans have not always been accorded full rights over the years.

After all, that goes to “original intent” right?

I won’t hold my breath.

Wecome Peter:

I appreciate the fact that you are not coming down from on-high to set us straight.

That said, I rather suspect that serious discussion of the Supreme Court, its main actors and the cosequences we all face regarding how certain of them apparently intend to ‘act’ will remain a rarified if not ‘elitist’ pursuit.

Usually, the American public seems to have little ‘interest’ in the actions of the court until after such ‘opinion’ is the law of the land.

And, even then, when the public ought to be paying strict attention, they do not.

If the court’s quite un-Constitutional (I my non-lawyerly opion)behavior in insinuating itself where it did not properly belong, in the 2000 election, has failed to get thge attention of the public (or the media), then there is, I fear, little that will resonate with them regarding that thin and stretching ‘thread’ you have so eloquently spun out before us.

Nonetheless, I would, most dearly, love to be proven wrong.

Discussions of this sort are most important then, because they are a beginning …

What are two or three recent cases that might resonate with low-information voters? Few people seem to understand that they are losing their rights as American citizens under the guise of the GWOT.

Bush v. Gore was of course a “one off” decision — nothing like it before and, the Court said, not to be a precedent in future cases. Not the first time the Court has said “for this day only” but far and away the most important instance. The equal protection clause has applicability with regard to voting — think of the reapportionment cases — but was never prviously applied in circumstances like Bush v. Gore. You’re certainly correct that Justice Scalia shows little regard for equal protection in other circumstances — think of Romer v. Evans, the case where the Court (Kennedy writing the opinion) held that a Colorado state constitutional amendment banning laws that would protect gay and lesbian people against discrimination was held unconstitutional under the US Constitution. Justice Scalia made fun of the majority opinion in his dissent.

Professor:

(sorry for the long post, but …)

Have you looked at this post over at Balkinization, re a statistical study by Posner and one other, on who’s conservative and how much? And, if so, your comments?

Balkin’s lede:

Judge Richard Posner and William Landes have posted on SSRN a fascinating paper, “Rational Judicial Behavior: A Statistical Study.” They report a number of interesting and odd findings, which I hope to comment on later.

For now, I will merely note the results of a table they produced showing the political orientation of the votes of Supreme Court Justices in (non-unanimous) civil liberties cases and economic cases from 1937-2006. The study ranked all forty three sitting Justices in this period by votes from more to less conservative (the number reflects the fraction of their conservative votes in these cases):

1. Thomas .822
2. Rehnquist .815
3. Scalia .757
4. Roberts .753
5. Alito .740
…
10. Kennedy .647

To repeat, this list ranks all 43 justices by ideological vote going back 70 years. And by this ranking, 4 out of 5 of the most conservative justices (in economic and civil liberties cases) during this period are now sitting on the Court. Kennedy, the swing “moderate” is ranked 10th highest (In case you are wondering, the liberal Justices on the current court are arrayed in the bottom half, but not at the very bottom, with Ginsburg the lowest at #35.)

(My emphasis)

The paper itself is at this link (its about 70 pages of .pdf)

Professor Edelman – Thanks very much for your time today.

In regards to your challenge, it seems to me that the American people really have very little knowledge of the current composition of the SCOTUS. Maybe if more publicity were given on what the Court might look like over the next 4 to 8 years depending whether a D or a R was in the WH. Assess the number of members that would retire if a D was in office vs. the number that might pass or retire if a R was in office and what the corresponding Court would look like. TO me it looks like the best progressives can hope for is staying even; e.g., Stevens and Ginsburg replaced by a D.

But does this kind of viewpoint ultimately feed into the talking point that the Right has made so very successful–judges being activist, legislating from the bench, and making unilateral decisions is bad for the country and bad for Americans? Does it, in a way, lend fuel to their rhetorical fire? It’s just incredible the amount of control of the dialogue that they’ve managed to capture.

What do you think about expanding the Supreme Court to thirteen members under the next Democratic president, in order to reduce workload as was always bemoaned by Chief Justice Rehnquist, while simultaneously diluting the clout of the Ledbetter Five?

Thanks for joining us here today.

Welcome to the Lake, Peter.
There are a few here who have the mantra: SCOTUS, SCOTUS, SCOTUS.
We are a small but mighty few.
I think that every time I hear someone complain about gas prices, I will remind them of the various reasons why that is and sum it up with George W. Bush. And, then I’ll remind them that the Bush V. Gore you pointed out above is the reason that Bush can do what he’s doing.

The Supreme Court has always been a radically conservative institution dedicated to preserving the rights over the have nots. Pre-Civil War it was a main bastion for the defense of slavery and property holders against non-property holders. In the latter part of the nineteenth century, it fought minimum wage, child labor, and workers’ rights tooth and nail. In the early 20th century it continued to foster segregation and sought to torpedo as best it could FDR’s New Deal. The only progressive period in the Court’s long history took place in the few years of the Warren Court, but ever since it has sought to roll back any decision that affects individuals. The Roberts Court has gone out of its way to set itself up as an arbiter between the Congress and the Executive and between corporations where individual citizens are unwelcome and unwanted.

I have no idea why either Scalia or Roberts is qualified as “brilliant”. Yes, they can cite a lot of legal opinion but the actual arguments they use are not just shallow and sophistic but often just stupid. I also would not put any faith in Kennedy. His opinion in Gonzales v. Carhart on “partial birth abortion” slanted, polemic, and incredibly ignorant of the medicine.

I know a lot of people think we should hold SCOTUS in awe but I moved beyond that some time ago, shortly after I began reading some of their opinions. So much of what they do is really on par with the John Yoo memo just better sourced.

This SCOTUS stuff is really over my head, though I understand the general principle of how important it is.

I’ve had a Q about Roe V. Wade for years, and perhaps you could finally answer it for me. As I understand it, one argument (& in my opinion the most important one) favoring Rose V. Wade is the right to privacy. Further, as I understand it, conservatives argue that there is no right to privacy in the constitution. My Q is, if there is no right to privacy, what good are any of the other rights?

As things have evolved, most of these so-called unenumerated rights have found a textual home in the word “liberty” in the Fifth and Fourteenth Amendments. Justice Scalia thinks almost all of that is hogwash.

What about the 9th Amendment?

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

My greatest fear for this country is that we are slipping from a constitutional democratic republic into a dictatorship headed by a tyrant. Our congress has exhibited little strength (including of character) or desire to prevent this from happening. There are all kinds of signs, from torture memos to the corruption of the DOJ to the retroactive immunity demanded by the “president” to Yoo’s “unitary president” theory. I am wondering how SCOTUS would view some of these things. Specifically, retroactive immunity for the telecoms seems to be an offense against the clear language of the fourth amendment. Congress is not only giving away its own power, but they also seem to be determined to weaken the power of the SCOTUS too? How do you think we can stop this or do you think the SCOTUS can or will stop this erosion of the checks and balances built into the constitution? The question is how to restore the balance of power within our own government?

The Rights seems to have succeeded in making judges a stand-alone issue. They no longer have to discuss it in terms of gay rights or abortion rights, but can simply discuss “judges” as a central conservative theme.

Progressives on the other hand, seem to have a hard time making the connection between judicial appointments and the preservation of the many protections that the courts provide. Does addressing the issue of judges in terms of single issues (i.e. consumer protections, worker protections, minority and civil rights) dillute the overall message that the courts do actually affect all aspects of our lives?

Great mantra — I will adopt it as my own! But how on earth can we make more Americans realize the impact that SCOTUS has on THEIR lives?

Scalia might, or might not, be brillant but certainly lets his view of life rule the outcome of his decisions. That is not always justice.

Dang.
I guess it does, at that.
Yes, the Right’s media has certainly been effective.

Justice for all, not just for a few. Fairness. An open mind. Appropriate deference for the decisions of Congress and other public actors, accompanied by a healthy skepticism about decisions of other bodies that are directed at people who have historically been the objects of discrimination or concern issues reflecting unpopular points of view.

In regard of ‘original intent’:
I’d like those who keep pushing it to be asked, every time they bring it up, ‘Were you there?‘
Were they in Philadelphia in 1787, listening to the debates and watching the votes being taken? Because if they weren’t, they can’t possibly know for sure what was intended. (We only have a limited amount of firsthand information, some of it biased by any standard.)

It seems a recurring theme here (well, recurring in a couple of comments) is that the judges issue is too ivory tower. But then, you look at the crowds who show up at a Justice Sunday event, and well, I don’t think every person there has a law degree, to say the least. I think the RIght has managed to reduce the conversation to its basic elements, often at the expense of accuracy and fair representation. Peter, you teach intro con law classes, albeit to people who are there to study the law–what kind of issues resonate at the intro levels? And is there a way to pare down the issues to their essentials without wholly misrepresenting the truth? I think the RIght has been more willing to get down and dirty when it comes to this, and while I don’t want to stoop to those tactics, are we at a point of fighting fire with fire?

IMHO, if you look at Scalia’s jurisprudence, he almost always comes down in the mold of tiny islands of individual liberty (for ordinary people) surrounded by a sea of governmental power (for his Republican buddies). Thus, what tiny islets of privacy would remain, he would find susceptible to being overwhelmed by governmental interests. I guess a very good example of this would be the infra-red surveillance case from a couple years back, where the cops (without a warrant) were scanning houses with an infrared scanner to see who had grow lights and who didn’t. Scalia would hold it ok, given that there was an electronic signature outside the house, and therefore unprotected by the Fourth Amendment.

Frankly, professor, I can no longer see the point of the pussyfooting around being accurate, and likewise cannot see the point of not calling Scalia what he is – intellectually dishonest.

That sounds very good, but is not in any way reflective of Scalia, Thomas et al.

I also have a Posner Q that perhaps you might know the answer to. I used to admire him because he took economics into account (note my screen name), & thought clearly. I didn’t always agree with him, as he’s Chicago School, but usually learned something from him. However, since he wrote Catastrophe: Risk and Response, he seems to have gone around the bend. Is it possible he scared the living daylights out of himself so much in the process of “thinking thru” that book (a cost-benefit analysis, primarily), that his mind was transformed to mush?

Would it behoove us to show the GOOD the courts have done? Judges can, and do, act for the common good? Brown being the most accessible and famous example of this, I think. Or is that too long ago and now an assumed outcome, rather than the revolution that it was? And are we back to the debate that we face with national security issues that people tend to be more easily motivated by fear and outrage?

This is related to my main point. I think too many Democrats were afraid to stand up against bad appointments. Part of this is because they don’t feel there is popular support for courageous stands against bad nominees. It comes back to the challenge to develop grass-roots interest in the judicial nominations process. It’s nice to hope the people we elect will do the right thing if they were the people “we” chose to put in office. But we have to keep a fire lit under people’s backsides once they’re in office. The need for advocacy doesn’t stop the day after the election.

Your links to the fifth and fourteenth ammendments go to findlaw.com.
There is a John McCain ad disguised as a Governement Waste ad. (Stop Pork barrel Spending – there is a $3mil grizly bear study that must be stopped!)

These types of ads (red herring issues) resonate with low-information voters.
Do they think about how many billions are lining the pockets of the MIC in the GWOT?

Simple (often misleading statements) appeals to low info voters.

One fundamental question, Peter, regarding, ‘Justice for all, not just a few’…

How may this ever ‘work’ when one’s pocketbook determines. all too often, the quality of the ‘dream team’ one may obtain.

I know that legal professionals pooh-pooh this concern, generally, but have you any thoughts on this unimportant ‘reality’?

I think that’s part of the problem. Scalia, for one, does not see that it is the judges’s duty to do “good.” And feels that if the Constitution can be interpreted that in fact evil should be done or should be the end result, then so be it, it is his interpretation that should be law.

The Democrtats who are afraid to stand up against bad appointmnets only seem to listen to their other Senate buddies and not the folks telling them they are making bad choices.

Thanks. The press is certainly part of the problem, and the new electronic world is already making a difference (although not always in a good direction).

I don’t know if you’ve seen the clip from the show Boston Legal in which Alan Shore rails against the Supreme Court. Of course I know that is fantasy and would never happen in a million years, but what struck me about the scene was that without my really noticing, the Roberts court has already done many things. The clip is on You Tube and C&L also has it in one of their posts a few weeks ago. I’ve also seen it several other places. The scene was quite an eye-opener for me, and I would advise anyone who has an interest in what the current court is doing to go watch it. They really seem to have done their homework!

It’s just not simple, is it?
We have to fill the congress with smart, honest, loyal representatives so that we can get the more even-minded and even-hearted Judges onto the court.
It’s all connected.
Most people I know, like neighbors, etc., only know about traffic court or divorce court. Sorry to say it.

Impeachment strikes me as double-edged sword. The last person to talk with some degree of seriousness about impeaching a Supreme Court Justice was Gerald Ford, who as a member of Congress called for the impeachment of Justice William O. Douglas, the most liberal Justice of his time. And of course there were billboards all over the South after Brown v. Board of Education that said “Impeach Earl Warren.” So I wouldn’t suggest the threat or use of impeachment.

I know trying to mobilize the mainstream media is a challenge, but it is still where a lot of people get their news. Do you think trying to change the nature of the questions that are asked at presidential debates and the like might help? Right now, it seems when a question about judges is asked, it is almost always in the context of abortion. Would getting more people to submit general questions help? Monitoring the narrow focus and calling them out on it help move the issue into a broader conversation about other issues like worker rights start helping? The Right likes to talk about abortion because that sells a lot better in swing states than talking about denying workers fair pay, for example.

Bumper Sticker suggestion: Supreme Court Is Hiring: Only Fair And Balanced Need Apply. (maybe too long…)

It’s tough. As one of the other writers commented, if Bush v. Gore didn’t wake people up to the havoc the Supreme Court can cause, it’s hard to see what will. Overruling Roe v. Wade seems to be the one thing that would get people stirred up in large numbers.

So I wouldn’t suggest the threat or use of impeachment

And with impeachment off the table, the Supremes can act with perfect impunity. If Scalia thought impeachment were a real possibility, would he go duckhunting with Cheney before deciding a case in which Cheney was involved? Would he act like such a smart alec punk?

Thanks for the data. It says what we know, but the numbers have power.

Do you mean they could hire O’Reilly and his Fox buddies?

I think you’re right — obviously, 99.999% of what most federal judges do on a daily basis has nothing to do with abortion — but the next question is, how do we get the public interested in a judicial philosophy about the commerce clause? Do we need to have Boston Legal do an episode about it?!

Fair & Balanced, hmmm? That would include all Faux news talking heads. Suggest other vocabulary, since Faux has trashed that phrase.

Yes, he would. Impeachment hasn’t been off the table for him, and yet he has frequently gone hunting with and socializing with Cheney and others in the Bush Administration. And did so with others in other administrations as well. The duck hunting case got press solely because lawyers who were adverse to Cheney’s interest pushed the case by pushing recusal publicly…but this isn’t new behavior for him in the least.

The term fair and balanced is owned and misused by Faux News. The term attaches itself to reactive conservatives.

No, I’m looking for words that the low-information voters might pay attention to.

This might be helpful. Not a bullseye but more publicity — more columns, more TV specials, more blogs, etc. — that talk about what the Court could look like over the next 4 to 8 years can’t hurt.

Thank you Professor:

To me, the most stark (and scary) change in public opinion over the past ten years is the belief that rights do not matter unless they pertain to the speaker. Torture, incarceration, prejudice, etc. seem to be accepted because they don’t pertain to the “average American.”

Do you have an opinion as to what has led to this erosion? Do you see this reflected in court decisions or do you believe it is merely a political belief fueled by fear?

Impeachment hasn’t been off the table for him

Could you fill in a little what moves have been made to impeach Scalia then?

I didn’t say that moves had been made, I said it hadn’t been off the table. There has been no official removal of it as an option, of which I am aware. You?

Eminent domain.

I think how to get people interested in the commerce clause is a great question for our law professor, or perhaps the best way to make such an issue accessible. Dawn Johnson once made a comment about “robbing Congress of its power to protect the American people,” though many people don’t trust Congress all that much, either. But is there simple language like that to convey the big ideas without getting into (for the average voter) scary-sounding legal terms and principles? I guess it comes back to “How do we reclaim the language of the debate?”

FDL is a wonderful place, but I’m trying to think outside of the box.
Part of understanding the enemy is to turn it around against them.

Have to take this on. “Activist” judges is in the eye of the beholder. The current majority has declared a big number of statutes unconstitutional, and it says, golly gee, we just had to do that because Congress was being activist. It’s not being activist to rule that the Constitution prevents the President from making laws without bothering to get Congress to pass a statute. That’s just reading the Constitution correctly. It’s not being activist to protect individual rights and liberties from legislative or executive curtailment. And so on.

It seems like a conflict of interest on so many levels. And how do we go about impeaching jurists that act outside the law like this? The personal and public support of torture is bad enough, but to tell people to “get over it” about his engineering the fraudulent installation of the bush is way beyond what was once “legal”

Okay.
You have land, freedom and rights. What will they take away from you next time?

FDR tried that (or a version of that) and was soundly rejected. Always have to think of what’s sauce for the goose is also sauce for the gander.

Torture, incarceration, prejudice, etc. seem to be accepted because they don’t pertain to the “average American.”

Leading to my favorite slogan that I ever made up: Larry Flynt is the man we hate to love. Meaning that in order to protect the “average” person’s rights, you must draw the line several standard deviations away from the center. Very few “average” people understand that concept. (Until they get cuaght up in a legal mess they never thought could happen to them.)

Let alone just flat out rude. But maybe that’s just me…

I didn’t say that moves had been made, I said it hadn’t been off the table. There has been no official removal of it as an option, of which I am aware. You?

Nor any threat of it either so where is the deterrent effect? Scalia can act the way he does because there is no sanction that he faces for his doing so.

I’ll “get over” Bush v. Gore when Justice Scalia “gets over” Roe v. Wade.

But wasn’t FDR’s problem that he tried to do it through Executive Order/fiat. Since the Congress is authorized through the Constitution to set the Court’s size, couldn’t a strongly Democratic House and Senate change the composition legally?

And hoist Scalia on his own “original intent?”

Sort of OT, but your comment triggered a thought on Signing Statements by the Executive. Has SCOTUS ever ruled on this concept?

Lots of truth to that. Problem is, what institutions will protect us best? Best answer is a better politics (which takes work) that elects people who have progressive values (and results in better appointments to the Supreme Court). The Warren Court resulted from the shift in attitude with the Roosevelt Court, which was still operative with the optimism of post-World War II Americans and then pushed by the strength of the civil rights movement and other movements for change. If the politics aren’t better, then the President, the Congress, and the Supreme Court will all be more interested in protecting corporate interests, etc. One interesting point, though, is that over the past 60-plus years, more Justices have turned toward the liberal end after being appointed (or surprised the Presidents who appointed them) than the opposite. Thni Warren, Brennan, Blackmun, Souter, etc.

I know that Prof. Edelman has to go soon, but I find this conversation fascinating and would love for it to continue. In my view, it seems that we have a few questions, that, if we can find the right answers to them, would help move the issue with voters.

1. How do we make people understand the judiciary is about bread and butter issues that affect everyone?
2. What kind of simple, but honest, language can be developed that resonates? (A progressive answer to buzz words like “legislating from the bench” or what-have-you.)
3. How do we get the media to undertake a more holistic approach to the courts, and remove it from the context of just a few hot button issues?

In regard to: “Leading to my favorite slogan that I ever made up: Larry Flynt is the man we hate to love.’

But that’s the problem: as a card-carrying liberal you feel this way. The average person doesn’t agree with you: they think Larry Flynt shouldn’t just be immune from civil liability, he should be in jail. The right has done a masterful job of conveying the great civil rights decisions as ACLU-fueled excesses and this Court seems inclined to agree.

I think we’re on the downward side of the greased slope. If a local municipality were to criminalize pornography I have little belief this Court would overturn such a law. The old compromises — indefiniteness, freedom of speech, etc — would not stand up to Scalia and Company’s original intent argument.

I don’t think they have — which is one of the reasons that there are a whole host of questions on what force of law they may or may not have. But I don’t know of any pending challenge to them, either. Peter likely has a much better ahndle on this because some of the folks at Georgetown Law have done quite a bit of writing on that issue…

I can’t remember the name of the case but it was in the late 80’s when Thurgood Marshall said something like, “Power, not reason is the commodity of the Court’s decision today.” I think that sums up Scalia’s jurisprudence quite nicely. He will someday be compared with the Justices of Lochner.

Even though Thomas, Scalia, Roberts and Alito are a minority, they are among the top ten most radically conservative jurists since at least the 1930’s. As was Rehnquist, whom Roberts replaced, as is Kennedy. So even though he doesn’t always vote with the Roberts block, we have five extraordinarily conservative jurists on the Court now. Which puts us a worn thread away from a Court that would remake our laws into a whet dream of Cheneyian proportions, the consequences of which would be with us for generations.

I’d like to hear more about how to put that threat into practical terms the public, “the great and observant public”, can understand and use when casting their votes. Many thanks.

Even low info voters know they have been screwed. I think they know the genisis of it is in the SCOTUS appointment of Georgie.

Except that the “modern” atavistic GOP has done away with that restraint. It no longer operates using the self-restraint that comes out of “sauce for the goose” or “there but for the grace of God go I” considerations.

try:

Vote McCain, Lose All Rights

Good question — answers itself, I think. In one way or another, a significant aspect of the Constitution is to protect personal autonomy from intrusion by the public sphere. But, that said, what is the textual basis? Could be Ninth Amendment, but the Court has never used it. Could be privileges or immunities clause of the 14th, but the Court rendered that almost meaningless in the Slaughter House Cases. So we use the word “liberty” in the 5th and 14th Amendments. Point is, you are absolutely right, it is essential to the very meaning of justice. It’s inherent, really, in the very structure of the Constitution, which is based on the idea that the powers of government emanate from the people.

One of the main reasons we wanted to do this First Monday series in conjunction with Alliance for Justice was to bring so man of these issues to the fore for everyone. This is an issue that rarely gets addressed, because the political consultant types see this as an issue that “doesn’t get enough traction.” (If I had a nickel for every time I’ve heard that…)

The reason it doesn’t get enough traction is that they don’t hit this at a gut level.

If you are a woman, you absolutely understand what it is to get paid less for doing the same damned work, and how that’s unfair. Same if you are paid less and the only difference is the color of your skin. Or that you are in a wheelchair. Unfair. And unAmerican.

That’s one issue right there that hits people where they live. And there are plenty of others: searching someone’s house without a warrant or tapping their phone lines without one, even though the Bill of Rights requires it? UnAmerican.

Holding someone in jail indefinitely without charging them with any crime, without telling them why they are being held, without giving them access to an attorney? UnAmerican.

We could keep on going, but you see what I mean in terms of laying it out at gut level discussion.

Ha, but ouch. I’m afraid of the subtle, evil force of the first two words.
Rights? We don’t need no stinkin’ rights?
Oh, Yeah? How about your children?

Don’t thank me for the data- thank Posner (of all people – though he’s probably crowing triumphantly from the results).
This is the sort of information which needs to be used, not filed away.

Ninth Amendment could be helpful, as I just mentioned. Court has never bought into it, except for Justice Goldberg’s thoughtful concurrence in Griswold v. Connecticut.

With the advent of much more closed and secret government, a nascent or adolescent Surveillance State, and a government that uses Orwellian definitions to avoid admitting that it tortures, what practical risks might we face in having our traditional constitutional protections in criminal proceedings – such as Miranda warnings and habeas corpus – distinguished away from us by this Court?

Thanks.

Shorter you, to make sure I understood. Privacy is inherent in the constitution, otherwise we have no rights at all. Trouble is, word is never used, and those clauses that might be used to get at the concept of privacy have been undermined in specific cases. Did I understand you?

Right. That’s the question. But the answer is really to elect different people to office and hold them accountable once they’re there. The current Court is well on its way to becoming a shill for corporate America except to the point that Justice Kennedy demurs.

Maybe. We definitely need an overarching theme.

We need a phrase with some instant appeal — the progressive counterpart of “activist” judges.

Reactionary judges? Retrograde Judges? Troglidite judges? (OK, that last one was snark)

Good Afternoon Professor Edelman and thank you for joining us here at the Lake!

Imvho, the whole “Originalist” movement is Pure Sophistry. What Scalia is doing when he ’shifts’ the discussion to the mind-set of the Framers and Original Citizens is to pull a sleight-of-hand:

His Divination of the ‘Original’ intent supplants Timeless Virtue and Beauty and Good as the Standard of What is True.

It’s a clever trick that ’sounds’ Noble and compelling coming from someone en-Robed as a Supreme Court Justice in a 230 year old Tradition, but it’s really His Ideology stepping on the Rule of Law, and Pandering to the Powerful. He’s not really a Justice, imvho, so much as a Tool for an Agenda.

So, what to do about it?

Lawyers and Jurists should directly Challenge Scalia to Give US a Reference that Translates his Originalist Ideology to the Character of a Virtuous People. If he can divine ‘intent,’ then surely he can tell US what kind of People the Founders were talking to, as well.

That way, we’ll all be able to comply with His Law, the way it was meant to be, all along.

Rather than having expectations of ruggedly independent, freedom loving, law abiding, sensible and caring Citizen Pariticipants in Our Democracy, this would be his expectation for US:

- Do as I say, not as I do
- What I say goes
- No back-talk

That’s the kind of Citizen Scalia just ‘knows’ was the ‘People’ that the Founders were speaking to…

Dubya’s sneak and peek is currently legal. Is it not? Average folks might take offense to it, if O’Reilly and others didn’t tell ‘em how good it is for them.

I think that some part of this is due to the Clinton impeachment – these folks are just hoping all the “pain” somehow goes away in the next election. What they don’t realize is that we’ve got the pain for a lifetime right NOW because they would not stand up. This is why it is so easy for Cheney to say, ‘So’? This is why there is the fight over FISA and immunity. This is why we are in such a terrible state now. People just want to put their heads under the desk until this is somehow ‘over’.

The irony is that the conservative voters believe in less governmental control, but support a government that is controlling them more than ever.

If examples of loss of their personal freedoms could be listed, perhaps they would catch on. The public is interested in the “American Dream” “Freedom”…when they find out what they have already lost…perhaps they will wake up. Now is a perfect time, because they are getting hit personally badly by the economy and are suspicious about the warmongering…They have to realize how privacy and choice could affect them in their day to day lives.

They have to realize that huge government departments, such as Homeland Security, could have policies that could threaten their own personal security, and that those policies could be approved by a SCOTUS majority chosen by their very own party.

JMHO

One might say the “original intent” was to construct a Constitution with few and general words that the politics of the people, as interpreted by their judges, would fill and remake as those politics and judges changed over time. A mechanical process fitted with the break of stare decisis, to avoid too rapid changes from the ways of the ancien regime.

If so, Scalia simply wants to form the current meanings of those words with his own radical politics. And like any dominant male in the rest of the animal world, prevent his competitors from impregnating those words with their own rival meanings.

Well, the problem with that is, if Scalia is to hold himself out as honest (not that he won’t find a way around it), he would have to discern the original intent of the Ninth Amendment and then apply it.

Sort of like the big discussion about the Meaning of the Second Amendment which we just have gone halfway through, in D.C. v. Heller .

Given that the Founders (who’d just fought and won a war of treason and insurrection) likely would have a heart attack with from just one of the many liberty-killing atrocities we encounter daily, an honest appraisal of the Ninth Amendment would require dismantling most of the activities government does to us daily. Imagine how the Founders would react to the knowledge that the government was arrogating to itself the power to open their mail – let alone email – to see if there was anything amiss in it. Washington himself, history tells us (and his letters preserve) was so confident in the sanctity of the mails that he entrusted his initial conversations re joining the Revolution to letters. They’d write “if we have to take up a-ms”, so their meaning would be “unclear” enough to avoid liability.

The Founders likely would be going to the mantel for the deer rifle.

I suspect Scalia doesn’t want to touch the Ninth Amendment for reasons like those.

I have always resigned myself to the opinions written after the fact by a justice. That is the logical end to the process. It is the bizarre “talkshow tour” that he is doing prior to legislation or the court acting upon a case before them I find so outside the boundaries of what a jurist should consider. He appears to be talking to the public to benefit his “clients”. He enacts the laws they suggest in some recent cases. I use him in the singular, only because he appears to wield undue influence, even if he isn’t CJ.

Teaching law students doesn’t help answer the questions we’re discussing today, because I view my role in the classroom as being to try to help students understand both sides. There are two constitutional traditions in a continuing struggle in this country. I want my students to understand the values that underlie each side’s positions, and then make up their own minds. Politically — outside the classroom — we need to convince the American people that their rights and liberties are in jeopardy from the increasing dominance of the conservative view of the Constitution in real-life Supreme Court decisions.

I think the literature suggests that many conservative voters (authoritarian followers) will follow their leaders wherever they lead, as long as they lead strongly and resolutely. Even when that destination harms their self-interest (except for their need to follow).

Politically — outside the classroom — we need to convince the American people that their rights and liberties are in jeopardy from the increasing dominance of the conservative view of the Constitution in real-life Supreme Court decisions.

I can’t see how there would be “another side” to that issue, i.e., why you you dub it “political,” rather than “legal”?

I almost think putting someone like Bob Barr or Bruce Fein or someone of that sort of conservative libertarian bent out front in a commercial might be worthwhile, although they’d never do it to promote progressive politics. But in terms of an issues education campaign on civil liberties, they see the dangers there as much as we do — and the consequences of inaction to push back that tide.

You may be on to something. The Supreme Court’s recent string of decisions upholding corporate interests have a pocketbook effect that has not been the subject of media attention.

think too many Democrats were afraid to stand up against bad appointments. Part of this is because they don’t feel there is popular support for courageous stands against bad nominees. It comes back to the challenge to develop grass-roots interest in the judicial nominations process

I remember when Chick Schumer put a hold onthe Appointment of Mguel estrada to the Court of Appeals (which was meant to set him up to be the first Hispanic appointed to SCOTUS). Schumer took onbeleivable heat from his fellow Senators and almost gave up a couple of times. Each time he was about to cabe a new factoid would turn up that would convivnce him to hold fast.

I don’t think Schumer has gotten one minute of praise for that except from me in the occasional comment thread.

Thanks for coming and speaking WITH us, professor.

Please come again soon, as issues surrounding SCOTUS are very much appreciated here, and you certainly have got the denizens ‘worked up’, in the best way possible, of course.

Your perspective is much valued.

The Constitution was written in understandable language, because it was meant to be understood.

It is too bad that more Americans do not take the time to read and understand just how revolutionary and important a document the U.S. Constitution actually is.

Perhaps we should teach young people about it early on.

Before ‘early onset’ sets in ….

Original Intent favored slavery, indentured servitude, and lesser personhood for women.

It’s also a problem that they believe that cheating is a justifiable way to furter their cause, especially since they present themselves as the most moral group in the nation.

Well, the Ledbetter decision certainly reinforced THAT.

You say that the mission of Justices Roberts, Alito, Thomas and Scalia is to

to rewrite the Constitution and take it back anywhere from 40 to 70 to 100 to 200-plus years, depending on the Justice and depending on the area of the law.

I agree with you. But I think that if we are going to convince progressives that taking the Constitution back 70 years would be a catastrophe, we need to be more direct and explicit about this and not lead up to that point. We have to hit them with that point right out of the box and then give examples of how the proposed Progressive Agenda that we would like to see come out of a new Congress could be affected by such a court.

Boy if you could just come up with a way to make a connection with “your taxes will be raised…because of conservative judges”…
Ha, ha…well, that would do it….like..”their decisions will lead to huge increased spending programs that you will have to pay for”…programs such the operation costs of the entire “spying on Americans” program…think of the cost…think of the cost of all of those prisons and how much it costs to maintain the torture program of the conservatives..

And there isn’t even any doubt about that. So Scalia is just another high-placed hypocrit (though he secretly probably prefers serval items on the list).

Interesting that the court does not buy into the 9th amendment to the
constitution they swear to preserve, protect and defend… they get
the text they want, not the one we have.

9/11 changed America for all of us in important ways. The Court actually has been more protective of civil liberties in the wake of some of the Bush Administration’s overreaching than it has been in other times in history — e.g., the speech cases after WWI, Korematsu, and Dennis v. US. But people are understandably fearful, and it becomes harder to remind them civil liberties still apply. Kennedy is still the fifth vote (up to now) for protecting civil liberties, but we have to worry what will happen when there is another vacancy on the Court.

Well, if you are talking original intent, let’s just go back to one white man, one vote.

“your taxes will be raised…because of conservative judges

Substitute “prices” for “taxes”, and you have an accurate statement.

Prof. Peter Edelman, a great honor to have you here.

FWIW, Justice Scalia enjoys throwing around the term “cafeteria catholics.” Casti Connubi is a 1930 encyclical written by Pius XII (not to be confused with his successor, Pius XII, aka Hitler’s pope). According to Casti Connubi, procreation is the only reason for married Roman Catholics to engage in sex. I have often hoped that someone would ask Justice Scalia if he stopped having sex with his wife after she reached the age where she could no longer bear children. If he didn’t, he’s in violation of the teaching of Casti Connubi.

Republics are on their way to that with the help of their pals, the Voting Machine companies.

Give me liberty or give me another Administration.

FDR sought legislation. Again, the problem with some of what the writers propose is that you have to remember that these ideas are not a one-way street.

Peter — this has been such a wonderful discussion. I just wanted to take a minute to say thanks so much for being here today, and for providing such a great springboard for this chat with your piece above — this has really been wonderful!

I also think that terming ‘money’, ‘free speech’ ranks right up there, in terms of denying reality, with the Dred Scott ‘decision’.

What was it Ginsburg said?

‘Bad law begets disrespect for all law’ (paraphrased, but ‘in the ballpark).

or say crappy, unregulated health care and high interest student loans equals taxation without representation.

If there is a debate in the general where they are accepting video questions, we must have a strong campaign to get a question about the Supreme Court on to the debate.

..’one white RICH man, one vote’ …

Fixed it for you, Az Matt.

Hope you don’t mind, overmuch?

;~D

This weekend immediatly after I watched the Scalia interview with Tim Russert, I watched a panel discussion on women in law that included Justice Ginsberg.

Justice Ginsberg in her own sweet tactful way called bullshit on Scalia’s orginal intent swagger. She told a story about a case inwhich he has written the majority decision. it invovled the use of infared heat sensor technology via helicopter fly overs to detect indoor marjuana growing facilties.

Even though the Founders would have had no intent about such technology nor even dreamed it possible, Justce Scalia wrote that the use of such technology would require a warrant b/c it would otherwise be an invasion of privacy.Thus endeth the annecdote.

Therefore, although he claims not to believe the Consitution is a document that evovles as the world and technology change, he acts as if it is and evolving document.

Shorter version+ he’s a hypocrite who is exercising raw naked power under the beard of original intent. Not that Justice Ginsberg would ever say that.

Bottom line, 5th and 14th amendment “liberty” is basis for right to “privacy” — “autonomy” is a better word, in my view.

Well, if that’s the case, without the ability to impeach Reps or Senators, how does one hold them accountable between elections. It’s not that big of a problem with Reps. since their term is only 2 yrs, but with Senators terms at 6 yrs, it is a real problem!

Excellent questions.

I would just offer this humble and cautionary reply. Federal Sentencing guidelines (not the Judges fault) and lengthy prison terms for non-violent offenders cripple the taxpayers. IIRC it’s around $40,000/a year to incarcerate someone. A lot of judges like to hand out stiff sentences (and sometimes they’re warranted), but it’s the taxpayers (and the prisoners) who pay when the sentence is overly aggressive.

Seconded.

I think that’s because a lawyer needs to do two things. As a lawyer, s/he needs to learn what the law is, to know it and to follow it as a practicing professional for real clients with real problems. That includes knowing where its boundaries are, and how acceptably to advocate bending or changing laws so as to apply them to unexpected facts or in response to new ways of looking at old facts. Just as a doctor might cut open a knee joint to fix it, or use pinholes and new instruments to do the same thing with less damage.

As a citizen, a lawyer has political ideas about what the law ought to say or do. That can be moving away from considering African Americans as 3/4’s of a person for purposes of electing exclusively white CongressCritters, or demanding that later discovered evidence based on new technologies, such as trace DNA evidence, be used to open up old convictions for rape and murder.

The two roles are distinct and often in conflict. Teaching that, helping students understand themselves and their professional place in that conflict, is probably something Prof. Edelman does every day.

That is a fab story — thanks so much for sharing it. *g*

Thank you Christy, for this series and today’s thread.
I think there might be too many issues to boil down to a bumpersticker-type quote…but we could have a contest.

Definitely. And raise a stink if they try to cherry pick the questions that only deal with hot buttons, or reframe the question into one about hot buttons as happened in a town hall/debate sometime last year. (It was on CNN, but the rest of my memory of the when and what exactly is fuzzy.)

Yep. I think examining the politico-legal process for how that changed is part of this discussion.

And is also the best aspect of legal teaching, when done well — because you are learning to constantly question and test everything. And, in that way, you find novel ways of arguing something that might catch fire with a judge on behalf of your client that can lead to changes in the law for the better down the line — but you also know where you can and can’t get away with it, if you are taught well. Sometimes, the better way to argue your case is to chip away at the edges rather than go full bore, depending on your venue — and that can be a tough lesson to learn when you are first starting out in trial practice. *g*

Vote right – lose your rights
Vote left – get back what’s left

I obviously didn’t make myself clear. Talking about all the rights that could be taken away from us if the court regresses hasn’t seemed to have made a big impact on Progressives – at least not enough to panic them. But many progressives talk about their Progressive Agenda that they would like to be enacted. It might be enlightening to them to understand how the court could impact those plans if it regressed 70 years or more.

Shorter version+ he’s a hypocrite who is exercising raw naked power under the beard of original intent.

Would a guy willing to hunt ducks with Dick Cheney ever think of such a use for the law? It’s meant to limit government excess, not enable it. Isn’t that the original intent of Madison, what the warnings of Washington, were all about?

We excoriate Mukasey for being a consigliere, but he has many brethren.

Thanks to all of you for the great conversation. Maybe we’ll get another chance to do it some time soon.

Come back any time — we’d love to have you!

Thanks so much for taking the time to be here. I really enjoyed it.

Now THAT would fit on a bumper sticker …

And it is soberingly effective, LS.

Oh, I understood. Just wanted to get at the stupidity of Scalia’s original intent lameness.

It is precisely for statements like that, Christy, that I regard you as one of the best … of legal minds (don’t be embarrassed, please, accept truth gracefully) and humankind (again, take this in stride …).

Lessons hard won, my friend, after many public dressings down in court by older judges who were much more well-versed in the ways of the legal world than I was. *G* But valuable lessons, nonetheless…and useful in any number of venues outside the courtroom, too.

Posiluetly and Absitively!

Watching the American judiciary from Germany for the last 8 years has been a trial. Bush vs Gore, Guantanamo, torture – bad news with hardly a respite. German supreme court justices (Bundesverfassungsgericht) serve for limited terms and are appointed through a process that is removed from the Chancellor’s or Bundespräsident’s personal political glare. German political parties oversee the process as one of their explicit constitutional duties. The result is relatively solid public support and little controversy at any level about the orientation of individual justices or of the general trajectory of the court. The US seems helplessly victimized by corporate media and their involvment in fueling a President’s glare, a non-political, poorly informed electorate, a party system adrift. No responsible person should be surprised by efforts to reform the constitution. Scalia’s reforms seem intended to serve the oligarchs, judging from his defense of Bush and apparent support for unitary executive arguments. The electorate has to be convinced that his reforms are not in their interests while other reforms would benefit them. The GOP was successful with their “activist judges” campaign. How about “elitist judges?”

That’s precisely where Bybee, Yoo and others drove the train off the tracks and into the ravine. They merrily leaped over the laws’ boundaries to where they wanted to replant them, attempting to effect those changes with a wave of the President’s magic wand. When discovered in the sorcerer’s dungeon, drowning amid the dancing buckets and brooms, they denied attempting any magic at all.

Thoughtful perspective and with good ideas too.

More please …

Much appreciation!

Ooooh, I like that: “elitist judges” does have a certain ring of truth in terms of how their decisions impact policies, doesn’t it?

Absolutely correct. Nauseatingly so…

We just have to hope that the term “elitist” hasn’t been de-valued so much as to lose all meaning.

Which seems to be happening these days.

I hate to rain on the parade, but doesn’t this play into the Right’s language, as well, with their fondness for talking about “liberal elites” and trying to paint Kerry and Obama, and even judges, with that brush? On the other hand, maybe it is time to start trying to reclaim the language.

One of the examples of elitism can be found in the 7th Circuit’s opinion on the Voter ID case–talking about they don’t understand why getting an ID might be burdensome on people, with little understanding of the challenges the eldery or the poorest among us face.

I think that’s true — it does play into how the right has framed things on liberals. Although I think part of the allure for me is throwing that right back in their faces — at least, to some extent, anyway. *g*

Sigh. I hate to give them credit, but they are just SO GOOD at manipulating and owning the language.

The Right’s language is a confabulated ’sleight of mind’ (and some of them are very slight,indeed) but a proper use of ‘elitist’, given the’education’
about to be metted out to the ‘people’ might just resonate.

Besides, certain form of ‘familiarity’ might well breed contempt for contemptible decisions …

I think it worth a try.

Maybe a small trial baloon, as it were, sent up to test which way the wind is blowing?

Like elitist candidates for President? I think we have to take back from Rove’s pudgy mitts the reality of whose elitist, like faux Texan Yankees living off great great grandpappy’s monopoly money and Homestead-style union busting. Then we need to rehabilitate notions of the elite, meaning the best.

We don’t want Drew Carey running the 100 meter dash in the Olympics or an intern cutting open our diseased hearts or brains. We don’t want engineering school dropouts replacing broken bridges in Minneapolis or lawyers who passed the bar on their fifth try arguing in the Supreme Court why it should overrule precedent and keep that needle out of our arm.

We need high competence in the White House, reputedly the hardest executive job in the world, and in Congress and on the Bench. Bush gives us sycophants like Lurita Doan, party pols like John Boehner, and neophyte lemmings like Brett Kavanaugh. He’s the preacher who will burn us in hell to save our souls, but only if we contribute to keeping his megawatt broadcasting arm healthy and profitable. No thanks.

Law is complex, and the American public is ignorant. That is why the public will never get involved on the liberal side of this debate. Lizard brains on the right can be aroused by presenting the complex as simple. Electing more liberal presidents, by dint of their good bowling scors or something equally significant, is the only hope to stop thge current trend.

I am a lawyer and a psychologist. And used to work for a major advertising agency. That background makes me feel certain of the sad correctness of this conclusion.

How about Corporate Justices?