SUPREME COURT
Courting Conservatives
Last year's "hyperpartisan"
Supreme Court produced a "higher
share of 5-4 decisions than any term in the last decade." Despite
Chief Justice John Roberts's promise
to seek greater consensus, 24 out of 68 decisions were resolved
by a 5-4 margin. As The New York Times notes, "The Roberts bloc has
not adhered to any principled theory of judging. The best predictor of
how they will vote is to ask: What
outcome would a conservative Republican favor as a matter of
policy?" "It is not often in the law that so
few have so quickly changed so much," said Justice Stephen Breyer
in a high-profile dissent at the end of the last term. This year's term
promises more of the same, with Justice Anthony Kennedy once
again the pivotal swing vote. While this Court's docket contains cases
that could potentially strike Kennedy's "individualistic,
even slightly liberal chords," the four-person Roberts bloc will
likely continue to go out of its way to issue activist conservative
rulings.
PUSHING FORWARD A REAGAN-ERA AGENDA: During their nomination
hearings, Robert
promised that he harbored "no agenda," and Justice Samuel Alito
claimed
that the judiciary must operate in a "neutral fashion." But Roberts
and Alito, along with Antonin Scalia and Clarence Thomas, "form a
solidly conservative bloc that votes
together time after time and reaches the results sought by
political conservatives." Conservatives called last year the "best
Supreme Court term ever" for big
business. It's unsurprising that Roberts and Alito, both Bush
appointees, vote together. Both men also served under Attorney General
Edwin Meese in President Reagan's Justice Department, which famously
"released a
series of documents" in the 1980s outlining
a long-term agenda to change the Court's interpretation of the
Constitution. As a new analysis by the Center for
American Progress notes, the Guidelines on Constitutional
Litigation ordered Justice Department litigators to advance a
rigid view of
the Constitution, "listing decisions it viewed as 'consistent'
and
'inconsistent' with the Reagan administration's interpretation of
the
nation's founding document." Similarly, another document, The
Constitution in the Year 2000: Choices Ahead in Constitutional
Interpretation, predicted "what constitutional questions would be
controversial during the 1990s" and "suggested the administration's
preferred answers." Roberts and Alito, now joined by Scalia and Thomas,
are carrying out this Meese agenda, striking down abortion rights,
access to justice, and voluntary school desegregation.
ROLLING BACK DISCRIMINATION
PROTECTIONS: Last week, with little notice, the Court agreed to
hear CBOCS West v. Humphries,
which examines whether a statute that prohibits racial discrimination
in employment also prohibits retaliation against those who complain of
such discrimination. Not too long ago, the Court may have sided with
the employees. Two years ago, it ruled 5 to 4 that "Title IX, a law
that bars sex discrimination in schools, also covers retaliation. Justice
Sandra Day O'Connor wrote the majority opinion."
But her successor, Alito, would likely have been one of the dissenters.
It is rare for the justices to hear a case when the issue has been
considered by multiple courts of appeals, all of whom are in agreement.
But the Roberts court agreed to
take Humphries even though
"every federal appeals court to consider the issue has agreed that the
statute does apply to retaliation," a move that suggests the case may
be
used for "advancing a particular agenda."
THE 'SUPREME REALM' OF JUSTICE KENNEDY: Of the 24 cases resolved by a 5-4 margin last term, Kennedy
was in the majority in every single one. In all of the 68 cases the
court decided by signed opinions, Kennedy dissented only twice.
Underscoring this dynamic, the Christian Science Monitor noted that the
Court "might just as well be called the supreme
realm of Justice Anthony Kennedy." There is no guarantee that
Kennedy will consistently vote with the conservative bloc again this
term; some analysts predict that "the highest-profile cases this year
are likely to bring a broader mix of both liberal and conservative
victories." For example, in Baze v.
Rees, the Court will examine
current methods of execution by lethal injection that may cause
severe and undetectable pain. The New York Times notes
that Kennedy, "who is concerned about death penalty abuses, may provide
the fifth vote to hold that these executions violate the Eighth
Amendment ban on cruel and unusual punishment."
HEARING FOR HABEAS CORPUS RIGHTS: One of the most prominent cases the Court will be hearing is "a
challenge by inmates at the U.S. naval base at Guantanamo to a
federal law limiting their access to courts." Last year, the justices
refused to hear the case. But in "an
action without modern precedent," they reversed course and three
months later agreed to take up the case. According to The New York
Times, "the development strongly suggested that a majority of the court
retains concerns" about the current detainee system, because "the
reconsideration required the votes of five justices, instead of the
four ordinarily needed to grant a case." In both 2004 and 2006, Kennedy
joined his colleagues and struck down the "Bush administration's claims
of unlimited authority over prisoners in the government's war on
terror." In response, the conservative 109th Congress passed a law
sanctioning Bush's program and denying the right of habeas
corpus to detainees. "The court took this case to make a larger
statement of who we are as a people," said Neal Katyal, a law
professor at Georgetown Law Center, who also represents a Guantanamo
detainee in a pending case.
ADMINISTRATION -- PUBLIC
OVERWHELMINGLY OPPOSES BUSH'S FOREIGN AND DOMESTIC PRIORITIES: A Washington Post-ABC News poll released today shows that almost seven in ten
Americans "oppose
fully funding President Bush's $190 billion request for the wars in
Iraq and Afghanistan....with 46 percent wanting it cut sharply or
entirely." The poll shows most Americans are upset by Congress'
inability to pass meaningful legislation to change policy in Iraq, but
"by a 2 to 1 margin, those who see little accomplishment in Congress's
first nine months blame the inaction on Bush." The poll also highlights
the
strong bipartisan support for the recently passed State Children's
Health Insurance Program expansion. "Eighty-one percent of Democrats,
69 percent of independents and 61
percent of Republicans are in favor"
of the legislation that Bush
has threatened to veto. These positions place Bush on the "wrong
side of public
opinion on upcoming foreign and domestic policy battles." The
poll also measured "Bush's approval rating at 33 percent, equal to his
career low in Post-ABC polls."
ETHICS -- BLACKWATER CEO ERIK PRINCE'S
RIGHT-WING TIES RUN DEEP: Erik Prince, the CEO of Blackwater
USA, is set to testify
before the House Oversight and Government Reform Committee today,
after the committee issued a stinging
memo yesterday revealing that Blackwater employees who engaged in
shooting incidents in Iraq had fired
first 84 percent of the time. The controversial firm, which was
involved in a shootout in Iraq last month that left 11 Iraqis dead, has long-standing
ties to right-wing causes. Prince's father, Edgar Prince, "was
instrumental in the creation
of the Family Research Council, an influential right-wing Christian
group. Furthermore, Erik Prince is the vice-president of the Edgar
and Elsa Prince Foundation, a group founded by his parents that "gave
at least $470,000 to the FRC and $531,000 to Focus on the Family,"
a conservative Christian group run by James Dobson. Prince has
also donated hundreds
of thousands of dollars to conservative causes including
the American Enterprise Institute and the Prison Fellowship Ministries.
IRAQ -- ANALYSTS' ASSESSMENT OF
IRAQ CONTINUES TO DIFFER FROM PETRAEUS: When Gen. David
Petraeus testified before Congress, his statistics on violence in Iraq
differed greatly from those of government
watchdogs and press
accounts. Bloomberg reports today that defense analysts continue to question
the administration's portrayal of the situation in Iraq,
particularly in the southern part of the country. For example, Petraeus
"told two Senate committees that Shiites in the south were working out
an 'Iraqi solution' to their problems and the British had done a 'good
handoff' to Iraqi troops in Basra." But currently, there is a sectarian
struggle for power in Basra and the "security environment in southern
Iraq took a notable turn for the worse in August." The Shiites "are
struggling for money and power in a form closer to criminal gangs than
religious or political groups," observed Anthony Cordesman of the
Center for Strategic and International Studies. In contrast, Petraeus
stated, "There is an accommodation
down there right now that is the kind of Iraqi solution to problems
in the South that, you know, is mildly heartening." "I
don't know which source he's using," said Government Accountability
Office Comptroller David Walker last month of Petraeus's statistics.
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The Senate voted 92-3 yesterday to "pass a defense policy bill authorizing another $150 billion for the wars in Iraq and Afghanistan."
While the Senate policy bill authorizes the money to be spent, it does
not guarantee it. "Bush will have to wait until Congress passes
a separate appropriations bill before war funds are transferred to
military coffers."
Ferdowi University yesterday invited President Bush to travel to
Iran and "speak on campus about a range of issues, including the Holocaust,
terrorism, human rights and U.S. foreign policy." The invitation "asked
Bush to answer questions from students and professors 'just the
same way' that Ahmadinejad took questions 'despite all the insults
directed at him.'"
The Anti-Defamation League is calling on Sen.
John McCain (R-AZ) to "reconsider and withdraw" his comment over
the weekend that the Constitution established America as a "Christian
nation."
In his opening
statement today, Blackwater Chairman Erik Prince will tell the House Oversight
Committee that his company and its employees are victims of a "rush
to judgment"
about a shootout in Baghdad last month. Though Prince says Blackwater
employees "acted appropriately," the Iraqi government has concluded
that they were "unprovoked" when they
opened fire.
British Prime Minister Gordon Brown has announced that Britain
will withdraw 1,000 troops from Iraq by the end of the year. "Forty
one British soldiers have been killed this year, the
most since 2003."
The nonpartisan watchdog Taxpayers for Common Sense sent a
letter to the House Ethics Committee requesting an "investigation into
how a controversial Florida highway earmark tied to Rep. Don Young
(R-AK) made it into legislation that had already passed the House and Senate."
But "restrictive House rules" and a recent federal ruling make it "unclear
whether any investigation will occur."
After doubts were raised about the recent death of Abu Usama al-Tunisi, a high-level
al Qaeda operative in Iraq, counterterrorism analyst Evan Kohlmann writes of confirmation that Tunisi did in fact die in a recent U.S.
military raid.
And finally: Condi's bodyguard scared a fifth grader. Secretary of State Condoleezza Rice visited an elementary school in
Harlem yesterday, where one student was "spooked"
by "her muscular security agents." "Her security might kill me if I ask
one question or come two feet near her," said 10-year-old fifth grader
Miles Figaro. "We'll prove that that's not true. ... You come here,"
said Rice, giving him a hug to laughter and applause.
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The Supreme Court "let stand a New York court ruling upholding a state
law that forces religious-based social service agencies to subsidize
contraceptives as part of prescription drug coverage they offer
employees."
ILLINOIS:
"The City of Aurora says a controversial Planned Parenthood clinic can
open its doors -- immediately."
MINNESOTA:
Members of Minnesota's congressional delegation write to Gov. Tim
Pawlenty (R) "urging his administration to apply for
emergency funds for the 35W bridge collapse."
HEALTH
CARE:
Eight states will file suit against the Bush
administration, challenging stricter eligibility rules for the
Children's Health Insurance Program.
THINK
PROGRESS: Rep. Jack Kingston (R-GA) introduces resolution
"commending" Rush Limbaugh.
FISHBOWL
DC: Sunday's episode of the Simpson's mocks Rupert Murdoch's
acquisition of the Wall Street Journal.
HUFF POLITICS:
The Huffington Post launches a new blog with original reporting on
politics.
FIREDOGLAKE:
After his "phony soldier" comments, Rush Limbaugh should be taken off
of the Armed Forces Radio network.
"The day you set timelines and deadlines, it's lost in Iraq."
-- Sen. Lindsey Graham (R-SC), 2/4/07
VERSUS
"Graham told Time Wednesday that the Iraqi leaders have 90 days to
start resolving their political differences with real legislative
agreements or face a change in strategy by the U.S."
-- Time, 9/26/07
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