Book: The Most Dangerous Branch

My next reading project is David Kaplan's exhaustively-researched brand new (Sept 4, 2018) examination of the current Supreme Court. It's getting good reviews. It looks like he calls them out for being the most activist court in history, making law where none exists, changing public policy when they can, and being a dysfunctional court where ideology trumps reasoned discourse, where consensus is a thing of the past, where instead of arguing the points of law and their rulings' possible effect on the country the justices make political points by refusing to hear opposing arguments and instead write up a lot of dissents.

I'm hoping the book will answer several questions I have about the Court:

• What was the reasoning (if any) behind the single most inexplicable ruling in history, Citizens United vs. US?
  
• How was Anthony Kennedy tricked into retiring when he was still healthy and active?
  
• Why is Clarence Thomas still on the bench?
  
• What is the basis of the enmity between Chief Justice John Roberts and the newest Justice Neil Gorsuch?
  
• Why did Sandra Day O'Connor leave the Court in 2005 at age 75 after only 25 years?
  
• Are the Justices at all concerned about balance on the court anymore?

13% of Americans believe Judge Judy is on the Supreme Court.

Neil Gorsuch’s writings specifically outline his desire to reverse as many as possible of the New Deal policies put in place by Roosevelt 1934-1939 to successfully overcome the, and prevent another, Great Depression.

These include:

• Social Security
  
• HHS (descendant of FSA)
  
• SEC
  
• FHA
  
• anti-monopoly legislation
  
• anti-discrimination legislation in hiring and housing
  

His goal, apparently, is to cause or at least not prevent a recurrence. This period -- from 1918 to 1929 -- is the period which Trump refers to (obliquely) in his "Make America Great AGAIN" slogan.

It wasn’t until 1803 that the Court, Under Chief Justice John Marshall, took upon itself the power to strike down legislative or executive actions if they deemed them unconstitutional.

Roger B. Taney, The Chief Justice Of SCOTUS who authored Dred Scott vs. Sandford in 1857 which held that Negroes were property not people, was married to Anne Phoebe Charleton Key, sister of Francis Scott Key who wrote “The Star Spangled Banner.”

In a chapter entitled “The Runaway Court,” Kaplan accuses SCOTUS of overreach in Roe v. Wade. The narrow Texas statute under review did not require such a sweeping Court decision, one that invalidated laws in 46 states. The basis Justice Blackmun used in his opinion — privacy — did not logically support his decision (Ginsburg is on record as saying “equal protection” would have been a better basis). Kaplan dates his characterization of SCOTUS as “activist” to this decision.

When Roe is overturned next year it’ll be interesting to see if (or how) it is reintroduced and under what basis.

And it’ll be interesting to see how long it takes.

I would expect it’ll take a Court at least 5-4 female, and legislatures of similar makeup.

During the Gore v. Bush recount fiasco in Florida, one of Bush's personal attorneys was sent to Florida to encourage a speedy certification rather than another recount.

His name was John Roberts.

He was later rewarded for his efforts.

At one point in the recount, one of the counties in Florida reported a vote tally for Gore of minus 16,000 votes.

This, apparently, was not as worth investigating as the hanging chads.

The post-Sandra Day O’Connor Court is the first US Supreme Court IN HISTORY to have not a single member who has ever been elected to anything.  They are widely viewed as being the most clueless ever of the effects of their rulings.

And the first not to care.

If Roe v. Wade (1973) was the first instance of the Court overstepping its domain, then Gore v. Bush (2000) was exponentially worse, with the Court breaking its own rules and precedents to insert itself into a simple political process with no legal question to be decided.  The federal overruled the state Supreme Court (for reasons other than law), which is both against their charter and against conservative principles.

But Sandra Day O’Connor wanted to retire to take care of her ailing husband, and she didn’t want a Democrat nominating her replacement.

Scalia and Thomas had wanted to certify the election before ANY recounting had been done.

Justice Paul Stevens wrote:

Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear.  It is the nation’s confidence in the judge as an impartial guardian of the rule of law.

NoCoPilot wrote:

When Roe is overturned next year it’ll be interesting to see if (or how) it is reintroduced and under what basis.

Ten days ago Netflix released an excellent documentary called "Reversing Roe" which goes through the entire history of abortion in this country.  Prior to Roe v. Wade women were obtaining an estimated one million illegal abortions per year, often in unsafe conditions, sometimes from sympathetic OB-GYNs who were breaking the law, sometimes the more affluent women traveled to Mexico or Puerto Rico or Sweden for the procedure.  Since Roe, abortions have continued at approximately the same pace.  Just they've been much safer and more available to women with less means.

Prior to Roe, abortion was seen largely as a medical issue, and that was why the Court ruled to make them safe and legal.

After Roe, the evangelical right decided to take up abortion as one of "their issues" in order to advance a more conservative and religious agenda.  It was a cover issue, intended to be divisive, intended to stand in for a whole host of other moral issues.  In order to do this, they had to "de-medicalize" abortion and turn it into a moral issue.  They did this by inventing terms like "partial-birth abortion" (which is not a real thing) and mischaracterizing the abortion statistics.  "Abortion on demand" in their imaginations became a matter of convenience to women, regardless of the stage of their pregnancy.

In truth, 90% of abortions are performed in the first trimester, and 90% of the remaining 10% are performed early in the second trimester.  Only 1% are so-called late-term abortions, and they're almost always performed for severe medical deformities (the fetus is found to be defective, and will be born dead or die as soon as it is born).  The Christians took over the debate, changed the terms under which the debate rages, and got many state legislatures to impose restrictions based on falsities.

I think MOST people would be against "killing babies."

The point that's been lost -- and unfortunately even this program failed to bring it out -- is that first trimester (12 week old) fetuses are not "babies" yet.  They're cytoblasts.  The womb is the size of a lemon.  The fetus is 2" long.

A fetus isn't viable -- able to live outside the womb with the BEST of medical science -- until 24-25 weeks on average.  That's the beginning of the third trimester.... when less than 1% of all abortions take place.  And then only for medical reasons.  A woman who has endured 25 weeks (five months!) of pregnancy doesn't decide, suddenly, to request an abortion-on-demand because she's changed her mind.

I WISH THE FUCK the two sides of this contentious issue would bring the facts to the argument instead of arguing based on mistaken definitions.

Otherwise, when Roe is overturned, the courts will have to be careful to avoid conferring "personhood" on sperm and eggs.  50% (or more) of all fertilized eggs fail to implant.  Are these women, and all women who miscarry, to be charged with involuntary manslaughter?

At the time the Bill Of Rights was written, there was no standing national army.  There were state militias whose job it was to protect settlers against Indians and encampments of foreign powers.  The word “militia” is mentioned four times in the Constitution and Bill Of Rights, And each time it refers to these state self-defense organizations.

Therefore the Second Amendment, which says “A well-regulated militia, being necessary to the security of a free state” must be interpreted as referring specifically to state militias.

The state militias still exist.  We call them The National Guard now.

Therefore the only people who are constitutionally allowed to own guns are members of The National Guard, and they must be “well regulated.”

When Antonin Scalia died, the George Mason University law school, which was endowed by the NRA, was rechristened the Antonin Scalia School of Law.

Until somebody noticed the acronym would be ASSoL.  They changed it to Antonin Scalia Law School.

In 2010, when Citizens United was argued, 83 PACs spent $63 million on negative campaign ads.

By 2016, 2,394 SuperPACs spent more than $1.7 billion (with a ‘b’) on ads and advocacy, a twenty-seven-fold increase.

NoCoPilot wrote:

I'm hoping the book will answer several questions I have about the Court:

• What was the reasoning (if any) behind the single most inexplicable ruling in history, Citizens United vs. US?
  
• How was Anthony Kennedy tricked into retiring when he was still healthy and active?
  
• Why is Clarence Thomas still on the bench?
  
• What is the basis of the enmity between Chief Justice John Roberts and the newest Justice Neil Gorsuch?
  
• Why did Sandra Day O'Connor leave the Court in 2005 at age 75 after only 25 years?
  
• Are the Justices at all concerned about balance on the court anymore?
  

For the most part it did:

• Citizens United was intended primarily to overturn the McCain-Feingold Act on campaign finance reform.  The primary effect of McCain-Feingold was to make it easier for incumbents to overwhelm their challengers.  John Roberts used the power of his judgeship to strike back at entrenched congressmen for perceived slights during his confirmation.
  
• Anthony Kennedy's retirement was too recent to be covered in this book; however elsewhere it has been revealed that his son was one of Donald Trump's bankers at Deutschebank and lent $2.5 billion to the Trump organization and helped laundry Russian organized crime and drug money.  Kennedy was threatened with exposing his son in the Russia scandal unless he resigned.
  
• There is no reason for Clarence Thomas to still be on the bench.  In EVERY decision discussed in this book, Thomas took the extremist right-wing position against equal rights, against affirmative action, against fairness, against protection.  He hasn’t written a single — not one — major court decision.  He went ten years without asking a single question — not one — during oral arguments (until Scalia died, and nobody else shared his extremist viewpoint).  He has been seen to sleep during court proceedings.  He is the very antithesis of a judge.  He is the posterboy for affirmative action but his ego refuses to accept this — so to compensate he wants to eliminate it for everybody else.

  Quote :

  Justice Thomas said nothing to clear up why he had chosen to end his silence now, exactly 10 years and one week after his last question. His record will stand for a long time — it has no modern competition. It has been at least 45 years since any other member of the court went even a single term without asking a question.

• Gorsuch had decided a case in a lower court that said the judiciary should intervene when legislative action was unclear or apparently in error.  He does not believe that elected officials -- who are accountable to the voters -- should be making law but instead lifetime appointed judges -- who are not accountable -- should have that power.  He has written a book in favor of overturning Roe and criticized Chief Justice Roberts by name for upholding it.  Roberts has never forgiven him.  Gorsuch is widely seen as to the right of Thomas.  (Perhaps Thomas will go back to sleeping for his paycheck.)
  
• O'Connor's retirement is explained above.
  
• The Court is completely dysfunctional, the Justices cannot even talk to each other and communicate primarily through competing, often highly-personal, dissents.  After a string of what are universally-regarded as truly horrible decisions, the newer justices have trouble even being civil to the Republican appointees -- and vice versa.  Right now the Court is fairly evenly divided with four liberals and four conservatives.  If Trump's nominee is seated, however, the court will attempt to overturn every precedent since 1934.  
  
  Possibly even earlier, to women's suffrage in 1920.  If they could I’m sure they'd go back to revisit the 13th Amendment from 1865.
  

Hard-core conservatives make up about 30% of the electorate.  They know from simple math that they can never get their agenda enacted through the democratic process.  That is why they’ve gone to extreme measures like gerrymandering and packing the Court with activists who are willing to overturn the will of 70% of voters.

NoCoPilot wrote:

If Trump's nominee is seated, the court will attempt to overturn every precedent since 1934. Possibly even earlier, to women's suffrage in 1920.  If they could I’m sure they'd go back to revisit the 13th Amendment from 1865.

Wow, that didn't take long!

I hate it when I'm right.