The state of the Supreme Court

(10 am. – promoted by ek hornbeck)

Glenn Greenwald has a great article up about the next opening on the Supreme Court.  With the next Presidential election two years away, it is likely that President Obama will be able to pick a second Supreme Court Justice, and, Greenwald opines on this NYT article.

If Justice Stevens retires, Democrats close to the White House said, the leading contenders will be three runners-up from last year: Elena Kagan, the solicitor general; Diane P. Wood, an appeals court judge in Chicago; and Merrick B. Garland, an appeals court judge in Washington.

If you think that President Obama will nominate a person with “liberal” leanings, you are sadly mistaken.

While Justice Sotomayor was qualified to be a Supreme Court Justice, her decisions weren’t liberal in nature.  She is a centrist.  No matter how qualified she is, some of her decisions are disturbing.

In the 2002 decision Center for Reproductive Law and Policy v. Bush, she upheld the Bush administration’s implementation of the Mexico City Policy, disagreeing that the case violated the equal protection clause.  She stated, “the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds.

What is disturbing about this ruling is that she could have ruled in favor of the Bush administration for other reasons; that the equal protection clause only applies to the states, or, that it only grants equal protection not equal rights.  However, she chose to do so based on the fact that the government is free to favor one side over another.

In the 2002 decision Pappas v. Giuliani, Sotomayor was a dissenting voice when her colleagues` ruled that the New York Police Department could terminate an employee that sent racist materials through the mail. She argued that, “

the First Amendment protected speech by the employee “away from the office, on [his] own time,” even if that speech was “offensive, hateful, and insulting,” and that therefore the employee’s First Amendment claim should have gone to trial rather than being dismissed on summary judgment.

However, her colleague’s cited the Pickering Test and held that the officer’s actions could adversely effect the department itself.  Quoting Oliver Wendell Holmes, they stated in their opinion, “A policeman may have a constitutional right to [speak his mind], but he has no constitutional right to be a policeman.”  The Pickering Test states: absence of proof [the individual] knowingly or recklessly is making false statements the [individual] has a right to speak on issues of public importance without being dismissed from his position.

In her first decision as a Supreme Court Justice, Citizens United v. Federal Election Commission, she joined with Justice’s Stevens, Ginsberg and Breyer in dissent.  However, with only one case as a Supreme Court Justice under her belt, we have yet to see how she will rule on other matters.

Thus, with the pending retirement of Justice Stevens, it is essential that a liberal Justice be appointed.  This, however, will not happen.

As was reported here, Sen. Lindsey Graham (R-SC) is engaging in talks with the Obama administration about how to codify into law the indefinite detention of prisoners.

There’s much that remains undefined about Graham’s proposal, including how much oversight judges would exercise over detainees held without charge. But Bishop said the system Graham is trying to set up wouldn’t just apply to the estimated 48 Guantanamo detainees the task force considers too dangerous to release but too difficult to prosecute in any forum. “There may be some people whom we capture in the future whom we can’t release,” Bishop said, “and that’s what Senator Graham is trying to establish.” Any proposal remains “weeks away” from introduction, he added, as “the White House has said they’re weeks away from any determination, even on the KSM situation.”

In the update to the article, it is noted:

Update: I should clarify that the DOJ left itself wiggle room last year. According to The New York Times, while the administration opposed new legislation for the indefinite detention without charge of those 48-odd Guantanamo detainees, it hasn’t ruled out seeking such legislation for future detainees whom it may seek to hold indefinitely without charge. I’m trying to get some clarity here from the Justice Department.

In the Supreme Court of Hamdan v. Rumsfeld, the court ruled 5-3 that, “that it had jurisdiction, that the administration did not have authority to set up these particular military commissions without congressional authorization, because they did not comply with the Uniform Code of Military Justice and the Geneva Convention (which the court found to be incorporated into the Uniform Code of Military Justice).”

The Supreme Court has decided, on three separate occasions, that detainees had the right to challenge their detention in court.  Any law that the indefinite detention of detainees would surely be heard by the Supreme Court, and, barring some unforeseen circumstance, would likely be held to be unconstitutional.  But, that is the rub; barring some unforeseen circumstance.

If President Obama and Sen. Lindsey Graham are engaging in talks on legislating indefinite detention, legal minds are for sure already looking at whether that law will withstand scrutiny in the Supreme Court.  This brings us back to the “short list” of Supreme Court nominees.

Elena Kagan is currently the Solicitor General of the United States serving in President Obama’s Department of Justice.  She has limited actual courtroom experience. She has never argued a case in court, and, has only argued ONE case before the Supreme Court of the United States.  We do, however, know how she would rule on an indefinite detention law:

During her confirmation hearing last week, Elena Kagan, the nominee for solicitor general, said that someone suspected of helping finance Al Qaeda should be subject to battlefield law – indefinite detention without a trial – even if he were captured in a place like the Philippines rather than in a physical battle zone.

If Elena Kagan were to replace Justice Stevens, the 5-4 court holding that detainees actually DO have rights goes to 5-4 that they don’t.

Judge Merrick B. Garland, however, has already ruled in favor of detainees against the Bush administration.

Judge Garland wrote the June 2008 ruling that rejected the government’s evidence for keeping a prisoner at Guantanamo; the panel of three judges found that the accusations against a Muslim from western China held for more than six years were based on unverifiable claims. It was the first civilian judicial review of the government’s evidence. The government contended that its accusations be accepted as true because they had been repeated in a least three secret documents.

Diane Wood seems to be a progressive judge.

Although a progressive in a bastion of conservative thinking, Judge Wood has established herself on the federal appeals court based in Chicago, in the view of scholars and lawyers, as an unflinching and spirited intellectual counterweight the court’s two formidable conservatives, Judges Richard A. Posner and Frank H. Easterbrook.  She has taken on that pair and some of the court’s other conservative judges across a wide range of cases including abortion, immigration  and access to courts.

So, again, if the Obama administration is looking to “cut a deal” on an indefinite detention law that would surely find its way to the Supreme Court, which nominee do you think he’ll chose?

With his first pick, he chose a centrist, a choice that could still tip the scales of the court either way depending on the case.  With his second pick, he could very well doom any chance of the Supreme Court defeating an indefinite detention law.  Given his history of choices, I am not holding my breath.

In little-noticed confirmation testimony recently, Obama nominees endorsed continuing the C.I.A.’s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone.

Also, it must be noted, that the Obama administration has already signaled that it will use indefinite detention.  In addition, his administration has already floated the idea of preventive detention.

So… who do YOU think is going to be his next pick?


  1. the big O would mean a more liberal court…..

    they may have been mistaken…..

  2. The people detained on suspicion are dangerous.  Dangerous!  If let loose, they will kill again!

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