Man Challenges Citizens United

Man Challenges Citizens United – From The Carpool Lane
Wendy Gittleson
2013/01/05
http://www.addictinginfo.org/2013/01/05/man-challenges-citizens-united-from-the-carpool-lane/

For most, getting caught alone in the carpool lane is an expensive nuisance. For Jonathan Frieman of San Rafael, CA, it’s a chance to change American politics.

The designated carpool lane on Highway 101 near Frieman’s northern California home is specified to be for “two people or more” during rush hour. The police say Frieman was driving alone, but rather than pay the $478 fine, he plans to head to court on Monday to challenge the ticket. His reasoning? He had his papers of incorporation with him and since the Supreme Court has ruled that corporations are people, there were two people in the car.

It’s doubtful that a traffic court judge is going to take a bold stance against a Supreme Court ruling, but that’s the point. Should Frieman lose Monday, which he plans on doing, he wants to take the challenge all the way to the top court. From the Pacific Sun:

According to a press release from Kathleen Russell Consulting, the Mill Valley-based firm handling publicity for Frieman’s quest for justice, state vehicle code 470’s definition of a person includes “natural persons and corporations.”

If he loses in court on Monday, continues the press release, Frieman says he is prepared to appeal the case all the way to the Supreme Court “in an effort to expose the impracticality of corporate personhood.”

“Corporations are imaginary entities, and we’ve let them run wild,” says Frieman. “Their original intent 200 years ago at the dawn of our nation was to serve human beings. So I’m wresting back that power by making their personhood serve me.”

While this might be the first time Frieman has made national headlines, he is a long-time political activist in Marin County, CA. He writes a blog for the San Rafael Patch, where he rails against local issues and our country’s growing income and tax discrepancy. He seems unafraid of offending the wealthy, many of whom are his neighbors in the upscale Bay Area city.

Frieman’s traffic protest wasn’t the first time he went outside the lines of politics. In May of 2012, he impersonated a Assembly candidate, Marc Levine, in protest of that candidate. He even considered starting a write-in campaign under the name of “Mark” (with a “k”) Levine to siphon votes from the original Levine.

If Frieman’s fight makes it to the Supreme Court, there’s no guarantee they will hear it. In June of last year, they turned down a more conventional case, one in which state law conflicted with the federal ruling.

Was Petraeus Borked?

Peter Maass
ProPublica, Nov. 14, 2012
http://www.propublica.org/article/was-petraeus-borked

In 1987, when Judge Robert Bork was enmeshed in a partisan struggle over his Supreme Court nomination, a reporter for an alternative weekly in Washington, D.C., got a tip that the judge was a patron of a local video store. Michael Dolan went to Potomac Video, in the western corner of the capital, and asked the assistant manager for a list of videos the judge had checked out. "Cool," the assistant manager said. "I'll look."

Dolan's subsequent story, published in the Washington City Paper, caused a sensation, though not because of the judge's taste in videos, which, it turned out, was unremarkable. There were 146 rentals in less than two years, including lots of Hitchcock and Bond, as well as movies featuring Meryl Streep and Bette Midler. As Dolan wrote, "Despite what all you pervs were hoping, there's not an X in the bunch, and hardly an R."

After a bitter fight, the Senate rejected Bork's nomination. One thing everyone agreed on, however, was that Bork's privacy had been invaded. In 1988, Congress passed the Video Privacy Protection Act, making it illegal to release video lists without a customer's consent to anyone but law enforcement, and then only with an appropriate warrant. It is reasonable to note that the unusually rapid congressional action was perhaps aimed at protecting the privacy of Legislator X as much as Citizen Y. If a reporter could easily get the judge's video list, a senator's list would not be much harder to get, and would probably be a lot more lively.

Will the scandal surrounding David Petraeus, General John Allen, Paula Broadwell, Jill Kelley, and a shirtless F.B.I. agent turn into the same sort of eureka moment that Congress experienced when Bork was, as the saying now goes, "borked"? Although the lustful portion of the Petraeus scandal is hardly disappearing — who else will be drawn into it, and when will we read the emails? — attention is turning toward the apparent ease with which the F.B.I. accessed the electronic communication of Petraeus, Broadwell, Kelley, and Allen. The exact circumstances of how the F.B.I. got its hands on all this material remains to be revealed — for instance, whether search warrants were obtained for everything — but the bottom line appears to be that the F.B.I. accessed a vast array of private information and seriously harmed the careers of at least Petraeus and Broadwell without, as of yet, filing a criminal complaint against anybody. As the law professor and privacy expert James Grimmelmann tweeted the other day, "The scandal isn't what's illegal; the scandal is what's legal (or what the FBI thinks is legal)."

In recent years, a handful of privacy activists — led by the A.C.L.U., the Electronic Frontier Foundation, the Electronic Privacy Information Center, and the Center for Democracy & Technology — have filed lawsuits and requested official documents in an effort to reveal and challenge the government's vast surveillance powers. For the most part, they have not succeeded in changing things; the Petraeus scandal appears to show just how much surveillance the F.B.I. and other law enforcement agencies can conduct without a judge or a company telling them "no, you can't have that."

For instance, in its semiannual transparency report, Google announced this week that it receives more requests for user data from the U.S. government than any other government in the world, and that those requests rose 26 percent in the latest six-month reporting period, to nearly 8,000; the company said that it complied with 90 percent of the requests, either fully or partially. As Chris Soghoian, the A.C.L.U.'s principal technologist and senior policy analyst, wrote this week:

"The guest lists from hotels, IP [computer] login records, as well as the creative request to email providers for 'information about other accounts that have logged in from this IP address' are all forms of data that the government can obtain with a subpoena. There is no independent review, no check against abuse, and further, the target of the subpoena will often never learn that the government obtained data."

It's not just email. In July, Rep. Edward Markey, a Democrat from Massachusetts, cajoled major cellphone carriers into disclosing the number of requests for data that they receive from federal, state, and local law enforcement agencies: In 2011, there were more than 1.3 million requests. As ProPublica reported at the time, "Police obtain court orders for basic subscriber information so frequently that some mobile phone companies have established websites — here's one — with forms that police can fill out in minutes. The Obama Administration's Department of Justice has said mobile phone users have 'no reasonable expectation of privacy.'"

There's a particularly cruel irony in all of this: If you contact your cell-phone carrier or Internet service provider or a data broker and ask to be provided with the information on you that they provide to the government and other companies, most of them will refuse or make you jump through Defcon levels of hops, skips, and clicks. Uncle Sam or Experian can easily access data that shows where you have been, whom you have called, what you have written, and what you have bought — but you do not have the same privileges.

The surveillance, which is being challenged in a number of suits, is conducted through an alphabet soup of laws, regulations, and loopholes, including the Wiretap Act, the Electronic Communications Privacy Act (which extended the Wiretap Act to email, and added the Stored Communications Act for stored email), the Foreign Intelligence Surveillance Act and the Patriot Act (which amended all the others). One of the remedies that's before Congress is a bill introduced by Senator Patrick Leahy, a Democrat from Vermont, to require that in most cases law-enforcement agents must obtain a search warrant from a judge before getting customer emails from an Internet company. It would also provide more guarantees that citizens be notified that their email is being surveilled. It's only a partial fix, of course; for instance, it does nothing about cell-phone surveillance.

Everyone has an opinion on what should be done, and one of the country's most famous judges is of two minds on the subject. "It seems to me we often hamper enforcement agencies so that they can't do their job, and when we aren't doing that we are cutting them loose so they can abuse their power," said Judge Bork, reached by phone at his home in northern Virginia. "Is there too much intrusion into private lives? I can't answer that very well, because sometimes there is, sometimes there isn't."

Until now, Congress has not stood in the way of the expanding surveillance, mainly because it was justified as part of the effort to prevent another 9/11. But the Petraeus case shows that among the people who have the most to lose from unchecked surveillance are the people who thought they would benefit from it—government elites who allocate the funding and make the laws and operate the bureaucracy of surveillance. Perhaps they will start worrying a bit more about becoming the next Petraeus or Bork. Our legislators, who are not all angels, now have real skin in the game, so to speak.

The Supreme Court & Arizona Immigration

A common theme in news involving the Supreme Court and Obama lawyers is how woefully incompetent Team Obama appears.  This may be charitable at best: the Obama DOJ pretty much comes off as arrogant, dismissive of basic constitutional questions and ultimately spineless to take any principled stand even if they believed in any.  In short, the DOJ has become a perfect representation of Barack Obama.  That was the case in the Obamacare challenge, was the case in the Citizen's United case, and was the case in the recent Supreme Court battle over Arizona's immigration law.

An AP news story from June 25 had the title "High court rejects part of Arizona immigration law."  The story gets all the facts right: despite the extreme right-wing tilt of the court, the Supremes overwhelming rejected the reactionary law: "The court struck down these three major provisions: requiring all immigrants to obtain or carry immigration registration papers, making it a state criminal offense for an illegal immigrant to seek work or hold a job and allowing police to arrest suspected illegal immigrants without warrants."

Despite these rulings, one key part of the law was left in place: "that police must check the status of people stopped for various reasons who might appear to be in the U.S. illegally."  Prez Obama decried this provision being left intact, declaring in writing: "No American should ever live under a cloud of suspicion just because of what they look like."

That Obama presented his objection in writing rather than one of his supposedly awesome speeches should tell you something.  What was left out in the AP article: the reason didn't reject the "Show me your papers" provision as an in-your-face abuse of civil liberties is because the Obama DOJ never objected the law on this point.  In fact, many of the Supreme judges could barely conceal their disgust of the DOJ during arguments over this fact.  The reasons seem pretty obvious: the Obama political team felt that sticking up for the rights of Latinos would be an election loser.

The good news: though they didn't overturn the most offensive part of the law, the Court made it pretty clear that they would if anyone could present evidence to the court that the law has or could violate any person's basic constitutional liberties.  It's a shame that Team Obama weren't the ones who did it.

Source:
http://news.yahoo.com/high-court-rejects-part-arizona-immigration-law-142916381.html

The Supreme Court & Citizens United

Robert Sterling, Konformist.com

The Supreme Court ruling on Citizens United has become widely loathed, and rightfully so.  What has become less well known about the decision, however, is as bad as the ruling may be, had they ruled against Citizens United, it would have been decidedly worse.  And perhaps most surprising to Konformist readers is that the issues in the ruling directly involve the history of The Konformist.

A little background: the case, Citizens United v. Federal Election Commission, involved a 2008 documentary by the right-wing Citizens United titled Hillary: The Movie.  The movie was a hack attack on Ms. Clinton, ironically on the false assumption that she would be the Democratic Party nominee in November.  In July 2008, the DC District Court ruled that advertisements for the film during the election period would violate election finance laws.

Jeffrey Toobin is not the most trustworthy of writers, but in a May 2012 New Yorker article he presents the facts pretty clearly, facts which have been usually ignored in any discussion of the ruling.  The most telling part was the exchange between the conservative Supreme Court judges and Deputy Solicitor General Malcolm L. Stewart.  Here is the excerpt from Toobin's piece:

Since McCain-Feingold forbade the broadcast of “electronic communications” shortly before elections, this was a case about movies and television commercials. What else might the law regulate? “Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?” Alito said. Could the law limit a corporation from “providing the same thing in a book? Would the Constitution permit the restriction of all those as well?”

Yes, Stewart said: “Those could have been applied to additional media as well.”

The Justices leaned forward. It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?

“That’s pretty incredible,” Alito responded. “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”

“I’m not saying it could be banned,” Stewart replied, trying to recover. “I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—” But clearly Stewart was saying that Citizens United, or any company or nonprofit like it, could not publish a partisan book during a Presidential campaign.

Kennedy interrupted. He was the swing Justice in many areas of the law, but joined the conservatives in all the campaign-spending cases. Sensing vulnerability on the subject of books, he joined Alito’s assault.

“Well, suppose it were an advocacy organization that had a book,” Kennedy said. “Your position is that, under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the sixty- and thirty-day periods?”

Stewart’s answer was a reluctant, qualified yes.

But neither Alito nor Kennedy had Roberts’s instinct for the jugular. The Chief Justice wanted to make Stewart’s position look as ridiculous as possible. Roberts continued on the subject of the government’s censorship of books, leading Stewart into a trap.

“If it has one name, one use of the candidate’s name, it would be covered, correct?” Roberts asked.

“That’s correct,” Stewart said.

“If it’s a five-hundred-page book, and at the end it says, ‘And so vote for X,’ the government could ban that?” Roberts asked.

“Well, if it says ‘vote for X,’ it would be express advocacy and it would be covered by the preëxisting Federal Election Campaign Act provisions,” Stewart continued, doubling down on his painfully awkward position.

Through artful questioning, Alito, Kennedy, and Roberts had turned a fairly obscure case about campaign-finance reform into a battle over government censorship. The trio made Stewart—and thus the government—take an absurd position: that the government might have the right to criminalize the publication of a five-hundred-page book because of one line at the end.

Source:
http://www.newyorker.com/reporting/2012/05/21/120521fa_fact_toobin


Though Toobin makes the issues raised in the case seem surprising, they shouldn't have been.  In fact, in communications with Citizens United before the Supreme Court heard the case, I supported their side in the legal battle on this basis.  By defining Hillary: The Movie (and any advertisement of it) as electioneering rather than a work of speech, the FEC had turned speech into something it could regulate.  The questions asked by the Supreme Court judges were questions that should have been asked by implication of a ruling in favor of the FEC, and the response by Stewart confirmed that siding with the FEC was an extremely dangerous precedent.

Put it another way: let's pretend that instead of this case involving the 2008 documentary Hillary: The Movie, it was the 2004 documentary Fahrenheit 9/11 at the center of the battle.  It is pretty hard to argue that Fahrenheit wasn't a movie with a definite political agenda, and thus it too would be defined as political advocacy.  Would it have been acceptable if the FCC had restricted it during the 2004 election?

And since Stewart declared the FCC had the power to regulate books with political advocacy during a campaign season, are there any books that could fit this description?  In fact, there are many, but there's at least one I can think of right away: 50 Reasons Not to Vote for Bush, a book written by myself and published by Feral House in 2004.  By the FEC's own logic, this book (which I admit was a work of political advocacy, something that is pretty hard to deny when reading the title) could be regulated by virtue of election finance laws.

This was the fundamental issue behind the Citizens United case.  And in this case, the FEC had way overstep its legal boundaries.  With Orwellian logic, the FEC had redefined speech as campaign contributions, and turned a law designed to restrict the perversion of politics by money into a law that could restrict the presentation of ideas.

This doesn't mean I support the Citizens United ruling.  The Supreme Court could have allowed the continued regulation of political commercials over public airwaves, but declared the restrictions on Hillary: The Movie as an expansive and unconstitutional abuse of power.  Even so, the can of worms opened by this ruling (starting with the rise of SuperPACs) is just as much due to the FEC's lack of respect for constitutional issues than it is the cynical posturings of the Supreme Court's right wing.

Obamacare Constitutional but Still Sucks

Robert Sterling, Konformist.com

In a last minute reversal by Chief Justice John Roberts, Obamacare was ruled constitutional by the Supreme Court.  It is important to note that in upholding the law, the Supremes rejected the usage of the Commerce Clause to justify the individual mandate, which is a victory for those who found such an argument to be insidious.  Obviously, include myself in that group.

The claim that mere existence made one involved in commerce (which was central to the Commerce Clause argument) had no historical precedent, as even judges who had previously upheld the law had agreed in unanimty.  Even worse, any precedent that was even close to this was one that no self-respecting progressive should ever embrace.  (The most notable precedent being written by Antonin Scalia, where he argued that due to the Commerce Clause, the War on Drugs trumps the power of states to legalize marijuana for medicinal purposes.)  It was disappointing to see so many so-called liberals, in their desperation to defend Obamacare, to be totally oblivious and dismissive of such concerns.  It shouldn't be surprising, as in the last four years what has passed for liberalism has bottomed out to merely mean being a pathetic shill for Barack Obama rather than represent any coherent philosophy.

Of course, that Obamacare is constitutional should be the minimum standards one should expect for a law.  (Alas, in the age of torture and the Patriot Act, such minimum standards is increasingly becoming a norm.)  Another standard is how popular it is with the public.  On this score, Obamacare has been a major flop since its inception.  A June 2012 NY Times/CBS News poll before the Supreme Court ruling underscored this: 41 percent of all polled believed the entire law should be overturned, while 27 percent wanted an overturn of the mandate.  Only 24 percent wanted the law to be upheld.  This was despite a relentless push by the White House, Democratic Party and the media establishment to sell the public on the law as some sort of progressive victory.  While there was a slight increase in approval of Obamacare after the ruling (a bump that is normal in terms of how polling goes) the general trend on Obamacare is unpopular with a bullet downward.

That Obamacare is unpopular shouldn't be too surprising, and I for one am someone who warned of this when the law passed.  And the establishment liberal response to this unpopularity, merely dismissing the opposition to ignorant dupes, is not only false but highly insulting to voters.  In this case, the public rightfully smells a loser here.  While Obamacare is sold as a progressive law, all its origins come from from right-wing think tanks, and its premises are all based on snide contempt for the poor and working class.  It's solutions are based on slashing funds to Medicare (a fact which proves the widely mocked "death panels" cry to be not completely off-base) and the individual mandate is based on the premise that poor young people are somehow cheating the system by not purchasing health insurance they can't afford.  It is a Marie Antoinette solution to our health care crisis, except cake is a lot cheaper and not manufactured by parasitic oligopolies that rip off its customers at every opportunity.  (The opportunities, thanks to Obamacare, will soon radically increase.)  The worst thing about Obamacare isn't Obamacare itself, which I assume will eventually fail and die due to its fundamental flaws.  The worst thing about Obamacare is whenever a real progressive reform is ever proposed in the future, it will be called Obamacare II, and it will be that much harder for it to pass.  Sadly, any such skepticism will be deserved, as the liberal apologism for the reactionary law known as Obamacare should rightfully discredit any supporters further arguments on the issue of health care.

Poll URL source:
http://thecaucus.blogs.nytimes.com/2012/06/07/new-poll-the-supreme-court-and-the-health-care-law/

Healthcare Jujitsu

Robert Reich
Monday, March 26, 2012
http://robertreich.org/post/19972321637

Not surprisingly, today’s debut Supreme Court argument over the so-called “individual mandate” requiring everyone to buy health insurance revolved around epistemological niceties such as the meaning of a “tax,” and the question of whether the issue is ripe for review.

Behind this judicial foreplay is the brute political fact that if the Court decides the individual mandate is an unconstitutional extension of federal authority, the entire law starts unraveling.

But with a bit of political jujitsu, the President could turn any such defeat into a victory for a single-payer healthcare system – Medicare for all.

Here’s how.

The dilemma at the heart of the new law is that it continues to depend on private health insurers, who have to make a profit or at least pay all their costs including marketing and advertising.

Yet the only way private insurers can afford to cover everyone with pre-existing health problems, as the new law requires, is to have every American buy health insurance – including young and healthier people who are unlikely to rack up large healthcare costs.

This dilemma is the product of political compromise. You’ll remember the Administration couldn’t get the votes for a single-payer system such as Medicare for all. It hardly tried. Not a single Republican would even agree to a bill giving Americans the option of buying into it.

But don’t expect the Supreme Court to address this dilemma. It lies buried under an avalanche of constitutional argument.

Those who are defending the law in Court say the federal government has authority to compel Americans to buy health insurance under the Commerce Clause of the Constitution, which gives Washington the power to regulate interstate commerce. They argue our sprawling health insurance system surely extends beyond an individual state.

Those who are opposing the law say a requirement that individuals contract with private insurance companies isn’t regulation of interstate commerce. It’s coercion of individuals.

Unhappily for Obama and the Democrats, most Americans don’t seem to like the individual mandate very much anyway. Many on the political right believe it a threat to individual liberty. Many on the left object to being required to buy something from a private company.

The President and the Democrats could have avoided this dilemma in the first place if they’d insisted on Medicare for all, or at least a public option.

After all, Social Security and Medicare require every working American to “buy” them. The purchase happens automatically in the form of a deduction from everyone’s paychecks. But because Social Security and Medicare are government programs financed by payroll taxes they don’t feel like mandatory purchases.

Americans don’t mind mandates in the form of payroll taxes for Social Security or Medicare. In fact, both programs are so popular even conservative Republicans were heard to shout “don’t take away my Medicare!” at rallies opposed to the new health care law.

There’s no question payroll taxes are constitutional, because there’s no doubt that the federal government can tax people in order to finance particular public benefits. But requiring citizens to buy something from a private company is different because private companies aren’t directly accountable to the public. They’re accountable to their owners and their purpose is to maximize profits. What if they monopolize the market and charge humongous premiums? (Some already seem to be doing this.)

Even if private health insurers are organized as not-for-profits, there’s still a problem of public accountability. What’s to prevent top executives from being paid small fortunes? (In more than a few cases this is already happening.)

Moreover, compared to private insurance, Medicare is a great deal. Its administrative costs are only around 3 percent, while the administrative costs of private insurers eat up 30 to 40 percent of premiums. Medicare’s costs are even below the 5 percent to 10 percent administrative costs borne by large companies that self-insure, and under the 11 percent costs of private plans under Medicare Advantage, the current private-insurance option under Medicare.

So why not Medicare for all?

Because Republicans have mastered the art of political jujitsu. Their strategy has been to demonize government and seek to privatize everything that might otherwise be a public program financed by tax dollars (see Paul Ryan’s plan for turning Medicare into vouchers). Then they go to court and argue that any mandatory purchase is unconstitutional because it exceeds the government’s authority.

Obama and the Democrats should do the reverse. If the Supreme Court strikes down the individual mandate in the new health law, private insurers will swarm Capitol Hill demanding that the law be amended to remove the requirement that they cover people with pre-existing conditions.

When this happens, Obama and the Democrats should say they’re willing to remove that requirement – but only if Medicare is available to all, financed by payroll taxes.

If they did this the public will be behind them — as will the Supreme Court.

Supremes Sympathetic to Arizona Profiling Law

"Justices seem sympathetic to central part of Arizona law."  The headline suggests the Supreme Court has once again used a case to turn our political system farther to the right, in this case using a race-baiting anti-immigration law.  (And no doubt the Roberts regime deserves such cynical suspicions.)  But the real story here, as has often been the case during the Obama Administration, is how the executive branch has evaded a political fight against reactionary forces.  This latest example: rather than argue SB 1070 was racist not only in practical outcome but in design, they instead only argued it was unconstitutional due to states taking supposedly federal-only powers.  If you think I am making this up, here's the exchange during oral arguments between Chief Justice John Roberts and Solicitor General Donald Verrilli that says it all:

Roberts: Before you get into what the case is about, I’d like to clear up at the outset what it’s not about.  No part of your argument has to do with racial or ethnic profiling, does it?  I saw none of that in your brief.
Verrilli: That’s correct.
Roberts: Okay.  So this is not a case about ethnic profiling.
Verrilli: We’re not making any allegation about racial or ethnic profiling in this case.


By this logic, it would be okay for federal agents to demand papers from people proving they are US citizens (which is what AB 1070 is about.)  The problem, according to the Obama Administration, is who is doing it and not is what being done.

To her credit, Justice Sonia Sotomayor (the only Hispanic on the court) could barely conceal her disgust with the argument.  "You can see it is not selling very well.  Why don’t you try to come up with something else?”

In retrospect, Team Obama's reasoning here shouldn't be too surprising.  Consistently, his DOJ has sanctioned the most repellant arguments made by the Bushistas.  In this case, they are arguing more for consolidation of power in the federal government than against racial injustice.  Such an argument conveniently sidesteps opposing a political scapegoating that appeals to the ugliest form of populism.

The good news here is if the Supreme Court sides with Arizona in its decision (which some believe the Supremes were hinting at in the tone of their questions) the battle over 1070 won't be over.  As the SJ Mercury notes: "Should the court uphold any part of the law, immigration groups are likely to challenge it based on an argument not before that court Wednesday -- that the law discriminates on the basis of race and ethnic background."  An argument, sadly, the Obama Adminstritation lacked the spine or sense of decency to present.

To read the original article:

http://www.mercurynews.com/census/ci_20482689/justices-seem-sympathetic-central-part-arizona-law

The Obama DOJ and strip searches

Glenn Greenwald
Tuesday, Apr 3, 2012
Full Article:
http://www.salon.com/2012/04/03/the_obama_doj_and_strip_searches

Numerous progressive commentators are lambasting the Supreme Court for its 5-4 ruling yesterday in Florence v. Bd. of Chosen Freeholders, and rightfully so. The 5-judge conservative faction held that prison officials may strip-search anyone arrested even for the most minor offenses before admitting them to the general population of a jail or prison, even in the absence of a shred of suspicion that they are carrying weapons or contraband. The plaintiff in this case had been erroneously arrested for outstanding bench warrants for an unpaid fine that he had actually paid, and was twice subjected to forced strip searches; he sued, claiming a violation of his Fourth and Fourteenth Amendment rights. In essence, the Florence ruling grants prison officials license to subject every single arrested individual entering the general prison population to humiliating and highly invasive strip searches (that’s 13 million people every year, with hugely disproportionately minority representation), based on the definitive police state mentality — one that has been applied over and over — that isolated risks justify the most sweeping security measures. This policy has been applied to those arrested for offenses such as dog leash laws, peaceful protests, and driving with an expired license.

What virtually none of this anti-Florence commentary mentioned, though, was that the Obama DOJ formally urged the Court to reach the conclusion it reached. While the Obama administration and court conservatives have been at odds in a handful of high-profile cases (most notably Citizens United and the health care law), this is yet another case, in a long line, where the Obama administration was able to have its preferred policies judicially endorsed by getting right-wing judges to embrace them:

In 1979, the Supreme Court ruled that in the interest of security, prisons could conduct visual body cavity searches of all detainees after they had contact with outsiders. For years after that ruling, lower courts ruled that the prison had to have a reasonable suspicion that the arrestee was concealing contraband before subjecting him to a strip search upon entering the facility.

But in recent years, some courts have begun to allow a blanket policy to strip search all arrestees.

The Obama administration is siding with the prisons in the case and urging the court to allow a blanket policy for all inmates set to enter the general prison population.

“When you have a rule that treats everyone the same,” Justice Department lawyer Nicole A. Saharsky argued, “you don’t have folks that are singled out. You don’t have any security gaps.”


As The Guardian said yesterday: “The decision was a victory for the jails and for the Obama administration, which argued for an across-the-board rule allowing strip-searches of all those entering the general jail population, even those arrested on minor offenses.” Civil rights lawyer Stephen Bergstein added:

This evidence suggesting that minor offenders are not smuggling contraband into jails was not good enough for the Obama administration, which is asking the Supreme Court to endorse the restrictive strip search policy in Florence. At oral argument, a lawyer for the Obama Justice Department told the Supreme Court that “[p]rotesters…who decide deliberately to get arrested… might be stopped by the police, they see the squad car behind them. They might have a gun or contraband in their car and think hey, I’m going to put that on my person, I just need to get it somewhere that is not going to be found during a patdown search, and then potentially they have the contraband with them.” This position would probably be identical to that advanced by a Republican presidential administration.


What makes the Obama DOJ’s position in favor of this broad strip-search authority particularly remarkable is that federal prisons do not even have this policy. As The New York Times‘ Adam Liptak explained, “the procedures endorsed by the majority are forbidden by statute in at least 10 states and are at odds with the policies of federal authorities. According to a supporting brief filed by the American Bar Association, international human rights treaties also ban the procedures.”

It’s rather strange to so vehemently condemn the ruling in this case as a warped, sadistic police state excess, and not even mention that the Obama DOJ vigorously advocated for this very result...

In a speech to the Associated Press today, President Obama boasted that his signature domestic policies were basically conservative (he labeled them “centrist”): his individual mandate, he said, was pioneered by conservatives and the Heritage Foundation; his cap-and-trade policy was first proposed by Bush 41; federal spending is lower now than it was during any year of the Reagan administration, etc. Even the successes most touted by his supporters — the Detroit bailout, TARP, the withdrawal from Iraq — were started by Bush 43. Obama’s foreign policy and civil liberties assaults also, of course, were largely shared by his predecessor and are frequently praised by the Right.

What is needed most — a strong countervailing force to these policies coming from a place other than the neoconservative Right and corporatist oligarchs — is exactly what is missing...

A Petition to Support the Saving American Democracy Amendment

http://sanders.senate.gov/

Sen. Bernie Sanders has proposed a constitutional amendment that would overturn the Supreme Court decision in a case called Citizens United vs. FEC.

The Saving American Democracy Amendment states that:

•Corporations are not persons with constitutional rights equal to real people.

•Corporations are subject to regulation by the people.

•Corporations may not make campaign contributions.

•Congress and states have the power to regulate campaign finances.

The People's Rogue: FDR vs. the Nine Old Men

Saturday 6 August 2011
Robert Wilbur, Truthout | Book Review
http://www.truth-out.org/peoples-rogue-fdr-vs-nine-old-men/1312315217

Throughout American history, Supreme Court justices have enjoyed undeserved reverence, which has allowed them, by and large, to be water boys (and girls) for the forces of money and power. The vaunted system of checks and balances is skewed in favor of the Supremes, and, inexplicably, ordinary men and women do not seem to realize that they're being rolled. The present political gridlock as a proximate result of the Supreme Court's Citizens United decision recalls the situation FDR confronted In Jeff Sheshol's new book, "Supreme Power: Franklin Roosevelt vs. the Supreme Court."

The president must have been savoring that afternoon of December 26, 1936. Tea was served, and the president entertained his attorney general with meandering reminiscences of his month-long tour through Latin America, wondering aloud which mementos to donate to the Smithsonian and which to keep in the White House. Eventually he got to the point. Go ahead, he told his A.G. Tell me what you have in mind. The A.G. began with a request: Do not laugh at me when I say that I have the solution. With this, as Shesol recounts, both men broke out laughing.

What Franklin Delano Roosevelt and Homer Cummings found so entertaining was a plan, hatched in the Justice Department, to neuter Chief Justice Charles Evans Hughes and the five other conservatives on the Supreme Court. The plan called for the kind of serious political mischief that brought out the devil in FDR. What made it all the more exciting was that the stakes could not be higher: New Dealers versus robber barons; checks and balances versus the power to govern a country on the verge of death throes.

When FDR assumed the presidency in March 1933, writes Shesol:

the cry was not "justice" but "relief." What was at stake was not simply the eventual return of prosperity. It was the survival of democracy. Could representative government, with its checks and balances, with its suspicion and fragmentation of power, respond quickly to mass hunger, unemployment, desperation, and rage? And if not, could such a system endure much longer? The experience of Germany, Italy, and Japan suggested that it could not.

Even before the very first of the hundred days, even before Roosevelt and Cummings were sworn in, New Dealers had a premonition that, sooner or later, there would be a clash between the executive branch and Hughes and his "old fossils." Anticipating this contingency - this inevitability - senator-elect William McAdoo of California proposed to Cummings a plan to pack the court and, "get the antiquated judges off the bench." Cummings liked the idea. So, according to McAdoo, did president-elect Roosevelt.

The daring experiments of the hundred days evolved with fewer cries from the political right than might have been expected, because small businessmen were hurting too, and they were inclined to give FDR a chance to assuage their pain. A chance, that is, until the New Deal came up against the traditional way of conducting business: sweatshops, long hours, measly wages, union busting, child labor, and other outrages.

It is true that the Justice Department did not scrutinize every piece of New Deal legislation with the care it would have done in ordinary times. But it is also true that the Hughes court scrutinized the same legislation with almost preternatural attention to constitutional nuance and precedent, unearthing rulings that had been forgotten for 50 years or more. So, when the Hughes court struck, it dealt FDR a body blow. First it shot down the blue eagle, symbol of the National Recovery Administration (NRA). Next, it rescinded the firing of a disruptive Republican member of the Federal Trade Commission. And for good measure, it struck down the Frazier-Lemke Farm Mortgage Moratorium Act (actually a bill pushed by rabble-rouser Huey Long, but signed by FDR anyway, and so identified with the New Deal). All three by a vote of 9 to 0, and all on the same day: Black Monday, May 27, 1935, just as the New Deal was finally getting a foothold.

At the dawn of the New Deal era, about 70 percent of judges, from the Supreme Court to night court, were Republicans, thanks to decades of GOP rule in Washington, the statehouses and municipalities. Emboldened by Black Monday, the courts picked off child labor laws, minimum wages and mortgage relief; the plaintiffs were seemingly "little people" who did not want government meddling in their affairs. The reality was that they were stooges for conservative "vigilante committees" bankrolled by the likes of Rockefeller, DuPont and Mellon. The right was on a roll, and like many on a winning streak, they did not know when to stop. On January 6, 1936, by a vote of 6 to 3, the Supreme Court put to death the Agricultural Adjustment Act (AAA), striking a devastating blow at hard-pressed farmers - and setting in motion the plan that would take Cummings to his fateful tea with FDR a year later.

The court-packing bill is often perceived as a legislative freak. This is not correct. By the time the Supreme Court struck down the AAA - with lower courts killing progressive legislation at every opportunity - almost all Democrats and progressives, and some enlightened Republicans, realized that something had to be done to reign in the judiciary - starting at the top. This was all the more important because two crucial bills were waiting in the wings: the Wagner Act, which gave unions the right of collective bargaining, and the jewel in the New Deal crown, Social Security. Legislators, scholars and activists had no shortage of plans in store for the courts, including numerous constitutional amendments to limit judicial review and other powers, bills to force judges into retirement at age 70 or 75, and various ingenious plans for court packing.

There is nothing in the Constitution that sets the number of Supreme Court judges at nine. Originally, there were six; for a while, there were ten; but for decades before the era of FDR, there were nine Supreme Court justices. Though several presidents had tried to pack the court with justices to their own liking, only one was successful: Ulysses S. Grant, who was able to tilt the balance in his favor by adding a single judge. It is doubtful that Roosevelt, Cummings, and their fellow plotters would ever acknowledge Grant, of all presidents, as a soul-brother in jurisprudence.

Nevertheless, the situation in the country was exigent. An amendment to the Constitution, favored by Professor Felix Frankfurter of Harvard, would take too long to pass at a time when Americans were starving. Similar considerations applied to bills that set an age limit on judges. To FDR and his eager attorney general, court packing was the quick and decisive way to go. There were, in fact, a number of court-packing schemes to choose from. The responsibility for reviewing these and putting together a bill was, incredibly, given to a young lawyer in the solicitor general's office named Warner W. Gardner, who worked closely with Cummings. The solicitor general himself avoided the pair because he found the scheme unsavory.

The 1934 midterm elections underscored FDR's popularity - and defied conventional wisdom that the president's party loses seats in the House and Senate. On the contrary, the voters swept the remaining Republicans into the Potomac, seemingly giving FDR an ironclad grip on the legislature. Cummings and Gardner had a court-packing bill ready for FDR, with the dark twist that appealed to him: starting from the premise that court dockets, from the Supreme Court on down, were so overloaded that they imposed an excessive burden on judges, and an especially heavy burden on the nine aging men of the Supreme Court, the bill increased the number of judges throughout the federal judiciary and, in particular, increased the number of Supreme Court judges to 15.

A major problem with the bill, however, was its central premise, which was false - willfully false. Court dockets were not overloaded. A second immediate problem was that FDR waited until February 5 to present his bill to Congress - an astounding blunder in timing, for FDR had allowed the members of his own party to campaign for constitutional amendments and other measures when, in fact, their party leader already had a plan that he did not see fit to share. It would certainly have been understandable if FDR had wished to keep the mechanics of such an explosive plan a secret, but, as Shesol points out, he could have spared Democrats a great deal of embarrassment with a cautionary whisper to candidates not to campaign against the Supreme Court.

The bill stirred scant enthusiasm - especially not among the members of Congress with egg on their chins, nor among many of Roosevelt's advisers. Nor - if the primitive polls of the day are to be believed - among the public at large, probably because Americans did not apprehend how sweeping this bill was. On the other hand, Americans were so programmed to believe in the sanctity of the judiciary, and especially that of the Supreme Court, that the right was quite successful in portraying this bill as a lethal attack on the Constitution itself. As Roosevelt's team sought to garner support for the bill, fellow Democrats continued to introduce constitutional amendments to rein in the court. It turned out that, when it came to the court-packing bill, Roosevelt was not as popular as the recent electoral results suggested. Roosevelt had to make a Faustian pact.

To keep his grip on the Senate, Roosevelt needed Majority Leader Joseph Robinson, to whom he had promised a Supreme Court seat when he was running for president. No one knows whether Roosevelt ever intended to keep this promise, for although Robinson seemed to be a loyal New Dealer, most New Dealers were convinced that he was a closet reactionary. Now, however, Roosevelt had to reiterate his promise: if Robinson would help the president to ratchet the Supreme Court up to 15 justices, one seat would be Robinson's.

On the Supreme Court, surprisingly, events began to break in Roosevelt's favor. In a twofold triumph for the New Deal, the court upheld the constitutionality of both Social Security and the Wagner Act, and the tide was beginning to turn also in Roosevelt's favor in lower courts across the country. Some of Roosevelt's advisers told him what seems obvious today: with the victories for Social Security and the Wagner Act, the swing votes on the court - Hughes and Owen Roberts - understood that not only the court-packing bill, but the Democratic campaign oratory of the recent election, as well as the flood of amendments and bills, boded ill for the power of the Supreme Court should it continue to overturn virtually every progressive bill that came before it. Hughes, a former governor of New York, Secretary of State, presidential candidate (and near-winner) and a masterful lawyer for moneyed interests, took the measure of the forces arrayed against him; he and Roberts knew it was time to back down. Roosevelt's more percipient aides advised him to withdraw the court-packing bill and to leave it hanging over Hughes' head like the sword of Damocles; the bill could always be revived if the court swung back to the right, and in the meantime, Roosevelt could claim a crushing victory.

The political arithmetic showed the fate of the bill on the floor of the Senate was a dead heat in the days before the vote. Without Robinson to make promises and twist arms, the bill would be history. And, just a couple of crucial days before the vote, Roosevelt lost Robinson in a way that this generally most astute of presidents could not have predicted: Robinson complained of pain in his chest and left the Senate early; the next morning his maid found him on his bedroom floor, dead, with his glasses and a copy of the Congressional Record just beyond the reach of his hand.

Now Roosevelt's aides pressed him hard to withdraw the bill. How to explain it? The fashionable explanation was - and almost certainly in most quarters still is - hubris. Shesol's explanation is more nuanced, more insightful. It is undoubtedly true that Roosevelt misconstrued the results of the midterm election, at least when it came to the court-packing bill. And it is also true that, as Shesol writes, Roosevelt had an iron will, though it generally was tempered by excellent judgment. But how unsound was that judgment of his in the present instance? Was it really correct that the court-packing bill would hang over Hughes' head like a sword? The bill was unpopular now - would it become any more popular in the months to come? And specifically, would it suddenly acquire popularity if Hughes or Roberts were to goose-step back to the right? Roosevelt may well have thought, correctly, that the bill stood its best chance of passage while his own popularity was, so it seemed, at its peak.

Roosevelt did not withdraw the bill, which was defeated by an astounding 80-20, with almost all of the nays from Democrats, because the Republicans had already been reduced to a handful. Southern Democrats voted against the bill because many of them were in the pocket of its foes, and because they feared a Roosevelt court would abolish Jim Crow and lynching. Moderates saw little reason to stir up a mares' nest so long as the Hughes court was behaving itself. Even on the left, support for the bill was weaker than one might think because of civil liberties issues. And senators of all denominations knew that the bill was predicated on a myth. Absent a national emergency, the Senate was not prepared to upset a precarious system of checks and balances for a reason that defied the facts.

None would deny that the court-packing bill delivered Roosevelt a humiliating slap in the face, but Shesol, like most historians who have written on this issue, overestimates its significance and duration. By 1937, FDR had succeeded in passing most of the signature legislation of the New Deal. Of course, Roosevelt would continue to govern, but in the domestic arena, there would be no more bills as sweeping as the Wagner Act or Social Security; subsequent legislation would be more targeted, more closely focused on less all-embracing issues. And soon after the start of his third term, FDR would become increasingly preoccupied with foreign affairs. Soon, FDR would wield more power than ever before, the failure of his court-packing scheme notwithstanding - and he would wield it more judiciously than the other two wartime presidents with whom he is compared, Lincoln and Wilson.

Shesol is surely wrong to attribute the court-packing affair to the beginning of the Democratic Party's abandonment by Southerners. Southerners controlled the key committees for decades thereafter, and the Solid South remained solid until Lyndon Johnson rammed through his civil rights legislation and Nixon welcomed the Southerners with open arms.

Shesol has written an engrossing, witty, and carefully researched history of a Supreme Court out of control and a President's fight to contain it. Shesol inclines toward the view that Hughes and his fellow conservatives had only themselves to thank; he clearly appreciates the magnitude of the economic and human catastrophe of the Great Depression. Shesol suggests that the crisis tempered Hughes and Roberts, yielding consistently more liberal verdicts. It seems more probable that FDR prevailed by brute political force, losing the battle but winning the war. Had FDR not rung the fighting juices out of these two aged reactionaries, Social Security might still be a progressive's fantasy.

Robert Wilbur did research in biological psychiatry for many years. He also writes for popular magazines and newsletters. He is active in progressive politics, especially opposition to the Middle East wars and capital punishment, and fighting for animal rights.

Court strikes down California video games law

Bob Egelko, Chronicle Staff Writer San Francisco Chronicle
Monday, June 27, 2011
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/06/27/BA9Q1K37ED.DTL

SAN FRANCISCO -- The U.S. Supreme Court struck down California's ban on selling violent video games to minors today, ruling that young people's access to even the most brutal onscreen mayhem is protected by freedom of speech.

By a 7-2 vote, the justices declared unconstitutional a law that has been blocked by court orders since it was passed in 2005.

It would have prohibited the sale to anyone younger than 18 of a video game that was so violent that reasonable people would consider it "patently offensive" under prevailing community standards for minors. Prosecutors would also have been required to show that the game lacked serious literary, artistic, political or scientific value.

Lower courts have unanimously overturned all such laws, passed by at least seven states and several cities. California asked the Supreme Court to chart a new course, arguing that laws restricting minors' access to sexually explicit material, which the court upheld in 1968, should be extended to violence - particularly to interactive media like video games.

Five justices, led by Antonin Scalia, flatly rejected that argument today.

In contrast to hard-core pornography, Scalia said, there is no "long-standing tradition in this country of specially restricting children's access to depictions of violence."

He cited examples ranging from the violence in fair tales like Snow White and Hansel and Gretel, who "kill their captor by baking her in an oven," to fixtures on high school reading lists such as the Odyssey and Lord of the Flies.

U.S. history is filled with examples of popular media being blamed for juvenile delinquency, from the cheap crime novels of the 1800s to the movies and comic books of the 20th century, Scalia said. He said studied offered by the state in defense of the law have shown, at most, that some users of violent video games feel more aggressive afterward - the same effect found in viewers of Bugs Bunny and Road Runner cartoons.

"California has singled out the purveyors of video games for disfavored treatment - at least when compared to booksellers, cartoonists and movie producers - and has given no persuasive reason why," said Scalia, who was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan in the opinion.

"A state possesses legitimate power to protect children from harm ... but that does not include a free-floating power to restrict the ideas to which children may be exposed," Scalia said.

Justice Samuel Alito, joined by Chief Justice John Roberts, said the California law should be found unconstitutional on narrower grounds - that it defined the prohibited games with terms such as "deviant" and "morbid," which they considered too vague. They said a more tightly written video games law, based on stronger research, might be constitutional.

In dissent, Justice Stephen Breyer said numerous researchers, supported by medical organizations, have concluded that ultra-violent video games can cause serious psychological harm to minors. He questioned the video game industry's claims of effectiveness for its voluntary rating system, and also questioned the logic of restricting minors' access to portrayals of nudity but not carnage.

"What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?" Breyer said.

Justice Clarence Thomas dissented separately, saying the Constitution, as he interpreted it, allows the government to prohibit any outsider from speaking to - or selling a product to - a minor without parental consent.

The ruling drew immediate condemnation from state Sen. Leland Yee, D-San Francisco, legislative author of the 2005 law.

"The majority of the Supreme Court once again put the interests of corporate America before the interests of our children," he said.

The video game industry called the ruling a vindication of free expression.

"This is a historic and complete win for the First Amendment and the creative freedom of artists and storytellers everywhere," said Martin Gallagher, president of the Entertainment Software Association, an industry group.

The ruling in Brown vs. Entertainment Merchants Association, 08-1448, can be accessed at www.supremecourt.gov/opinions/10pdf/08-1448.pdf.

E-mail Bob Egelko at begelko@sfchronicle.com.

Wal-Mart’s Authoritarian Culture

NELSON LICHTENSTEIN
June 21, 2011
http://www.nytimes.com/2011/06/22/opinion/22Lichtenstein.html

MONDAY’S Supreme Court decision to block a class-action sex-discrimination lawsuit against Wal-Mart was a huge setback for as many as 1.6 million current and former female employees of the world’s largest retailer. But the decision has consequences that range far beyond sex discrimination or the viability of class-action suits.

The underlying issue, which the Supreme Court has now ratified, is Wal-Mart’s authoritarian style, by which executives pressure store-level management to squeeze more and more from millions of clerks, stockers and lower-tier managers.

Indeed, the sex discrimination at Wal-Mart that drove the recent suit is the product not merely of managerial bias and prejudice, but also of a corporate culture and business model that sustains it, rooted in the company’s very beginnings.

In the 1950s and ’60s, northwest Arkansas, where Wal-Mart got its start, was poor, white and rural, in the midst of a wave of agricultural mechanization that generated a huge surplus of unskilled workers. To these men and women, the burgeoning chain of discount stores founded by Sam Walton was a godsend. The men might find dignity managing a store instead of a hardscrabble farm, while their wives and daughters could earn pin money clerking for Mr. Sam, as he was known. “The enthusiasm of Wal-Mart associates toward their jobs is one of the company’s greatest assets,” declared the firm’s 1973 annual report.

A patriarchal ethos was written into the Wal-Mart DNA. “Welcome Assistant Managers and Wives” read a banner at a 1975 meeting for executive trainees. And that corporate culture — “the single most important element in the continued, remarkable success of Wal-Mart,” asserted Don Soderquist, the company’s chief operating officer in the 1990s — was sustained not only by the hypercentralized managerial control that flowed from the Bentonville, Ark., home office but by the evangelical Protestantism that Mr. Soderquist and other executives encouraged.

Wal-Mart attorneys have argued, and the Supreme Court agreed this week, that even if sex discrimination was once part of the company’s culture, it is now ancient history: if any store managers are guilty of bias when it comes to promoting women, they are at odds with corporate policy. Wal-Mart is no longer an Ozark company; it is a cosmopolitan, multinational operation.

But that avoids the more essential point, namely that Wal-Mart views low labor costs and a high degree of workplace flexibility as a signal competitive advantage. It is a militantly anti-union company that has been forced to pay hundreds of millions of dollars to current and former employees for violations of state wage and hour laws.

In other words, the patriarchy of old has been reconfigured into a more systematically authoritarian structure, one that deploys a communitarian ethos to sustain a high degree of corporate loyalty even as wages and working conditions are put under continual downward pressure — especially in recent years, as Wal-Mart’s same-store sales have declined. Workers of both sexes pay the price, but women, who constitute more than 70 percent of hourly employees, pay more.

There are tens of thousands of experienced Wal-Mart women who would like to be promoted to the first managerial rung, salaried assistant store manager. But Wal-Mart makes it impossible for many of them to take that post, because its ruthless management style structures the job itself as one that most women, and especially those with young children or a relative to care for, would find difficult to accept.

Why? Because, for all the change that has swept over the company, at the store level there is still a fair amount of the old communal sociability. Recognizing that workers steeped in that culture make poor candidates for assistant managers, who are the front lines in enforcing labor discipline, Wal-Mart insists that almost all workers promoted to the managerial ranks move to a new store, often hundreds of miles away.

For young men in a hurry, that’s an inconvenience; for middle-aged women caring for families, this corporate reassignment policy amounts to sex discrimination. True, Wal-Mart is hardly alone in demanding that rising managers sacrifice family life, but few companies make relocation such a fixed policy, and few have employment rolls even a third the size.

The obstacles to women’s advancement do not stop there. The workweek for salaried managers is around 50 hours or more, which can surge to 80 or 90 hours a week during holiday seasons. Not unexpectedly, some managers think women with family responsibilities would balk at such demands, and it is hardly to the discredit of thousands of Wal-Mart women that they may be right.

There used to be a remedy for this sort of managerial authoritarianism: it was called a union, which bargained over not only wages and pensions but also the kind of qualitative issues, including promotion and transfer policies, that have proved so vexing for non-unionized employees at Wal-Mart and other big retailers.

For a time it seemed as if the class-action lawsuit might be a partial substitute. By drastically limiting how a class-action suit can be brought, the Supreme Court leaves millions of service-sector workers with few avenues to escape the grinding work life and limited opportunities that so many now face.

Nelson Lichtenstein, a professor of history at the University of California, Santa Barbara, is the author of “The Retail Revolution: How Wal-Mart Created a Brave New World of Business.”

A version of this op-ed appeared in print on June 22, 2011, on page A21 of the New York edition with the headline: Wal-Mart’s Authoritarian Culture.

US Supreme Court gives green light to warrant-less searches of homes

By Tom Carter
19 May 2011
http://wsws.org/articles/2011/may2011/spct-m19.shtml

A decision Monday by the US Supreme Court represents a further major step in abolishing the basic civil liberties protections in the Bill of Rights and enhancing the arbitrary powers of the police. The decision permits police to conduct searches of private homes without a warrant under a mundane pretext.

The issue in the case, Kentucky v. King, decided 8-1, was whether the police should have obtained a search warrant before they kicked in the door of Hollis Deshaun King’s apartment, conducted a search, and found marijuana. King was sentenced to 11 years in prison.

The Fourth Amendment to the US Constitution, enacted in 1791 in the aftermath of the American Revolution, guarantees to the people “[t]he right … to be secure in their houses… against unreasonable searches and seizures.” The Fourth Amendment also requires that police seek the authorization of a neutral judge, in the form of a warrant, before undertaking a search or seizure. To obtain the warrant, the police are required to demonstrate “probable cause.”

The Fourth Amendment, together with the Third Amendment, which prohibits the government from quartering soldiers in private homes, arose out of a profound hatred and resentment towards arbitrary government intrusions into the home, as well as an understanding that protection of the privacy of the home is necessary to political freedom.

The US Supreme Court Justice Robert H. Jackson wrote in 1948 that the Fourth Amendment requirement that the government obtain a warrant to conduct a search is among the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.”

In King’s case, no warrant was ever issued. The police, including an undercover officer, followed a person they believed was carrying drugs to King’s apartment complex, where one officer said he “smelled marijuana” outside King’s home. The officers, who had no warrant to search King’s apartment, decided not to seek a warrant and instead pounded loudly on the door, shouting “This is the police! Police! Police! Police!”

After not receiving an answer and hearing vaguely described “noises” coming from inside, the officers broke the door down, searched the apartment, and arrested King, his girlfriend, and a guest. As it turned out, the person the police had been following never entered King’s home.

Over the past several decades, the US Supreme Court has made Swiss cheese out of the Fourth Amendment’s warrant requirement, inventing myriad exceptions that together nearly swallow the rule. These exceptions cover a wide range of scenarios. Warrant-less searches of automobiles and warrant-less “frisks” of suspects, for example, have been tolerated for decades.

A number of “exigent circumstances” have already been found to justify a warrant-less search of a home. For example, police in “hot pursuit” may follow a suspect into his home, and police may also enter if they believe they can prevent “imminent injury.” Even so, the home remained one of the last places where the Fourth Amendment’s warrant requirement had any practical force. As recently as 2006, the Supreme Court wrote that “searches and seizures inside a home without a warrant are presumptively unreasonable.”

At his trial, King argued that the evidence discovered during the search of his apartment should be suppressed because the entry by police into his home was warrant-less and illegal. The trial court and the Kentucky Court of Appeals found that the search was legal despite the absence of a warrant, citing the “need to prevent destruction of evidence” as an “exigent circumstance” justifying the absence of a warrant.

The Kentucky Supreme Court reversed, suggesting that the officers “deliberately created the exigent circumstances with bad faith intent to avoid the warrant requirement.” The Kentucky Supreme Court further declared that the police could not rely on an exigency if “it was reasonably foreseeable that [police] investigative tactics … would create exigent circumstances.”

The “police-created exigency” doctrine, developed by the Kentucky Supreme Court as well as a number of other courts around the country, prevented police from deliberately manufacturing circumstances that would justify a warrant-less search, where the police could just have easily have obtained a warrant.

All but one justice on the US Supreme Court, including the erstwhile “liberal” Obama appointees Elena Kagan and Sonia Sotomayor, joined in the decision to eviscerate the “police-created exigency” doctrine.

The majority decision, authored by Samuel Alito, drips with dishonesty. For example, according to Alito, the police officers were not necessarily demanding entry into King’s apartment, in violation of the Fourth Amendment, when they pounded on the door without a warrant. “There is no evidence of a ‘demand’ of any sort,” Alito wrote. Perhaps, Alito suggests, the police merely wished “to speak with the occupants … before deciding whether it [was] worthwhile to seek authorization for a search.” Or perhaps, wrote Alito, the police wanted to ask King whether he would consent to a search.

Ruth Bader Ginsburg, in her brief dissent, makes clear that this decision will have devastating immediate consequences. “The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” she wrote.”In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”

In other words, for all practical purposes, all a police officer has to do in order to search a person’s house without a warrant is approach the front door, knock, listen, and then announce, “I think evidence is being destroyed!” Then the police may break down the door and search the house.

To anyone who has a brain and who is not one of the eight Supreme Court justices who joined the majority opinion, Alito’s reasoning will not pass the laugh test. Everyone knows that that a police officer is “demanding” entry when he, as the police officer did in this case, starts pounding “as loud as [he] could” on the front door and yelling, “This is the police! Police! Police! Police!”

Further, how could the police, standing outside, possibly know that “evidence” was being destroyed inside the apartment? At King’s trial, asked how he knew evidence was being destroyed, one officer responded, “It sounded as [though] things were being moved inside the apartment.”

Finally, it is obvious that the police could easily have sought a warrant before approaching King’s apartment. As Ginsburg observes sardonically, quoting past Supreme Court opinions, “[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police.”

But there is more to the Kentucky v. King decision than the patently ludicrous arguments of Alito and company. A central role of the US judiciary historically has been to act as a check on the executive branch, ensuring that from the president down to the sheriff, the executive operates within the bounds of the law. The Fourth Amendment warrant requirement is a central feature of that framework.

In a host of recent decisions, all of which in one way or another purport to show “deference” to the executive, whether for reasons of “national security,” “state secrets,” or the “exigencies” of police work, the Supreme Court is abandoning any effort to restrain the exercise of executive power. These decisions, taken together, effectively relegate a US judge to the same role as a judge in a police state, who functions merely as an after-the-fact rubber stamp for executive decisions.

This ruling enhances the arbitrary powers of the police and makes the security and privacy of the home even more dependent on the subjective whims of individual police officers.

In her dissent, Ginsburg quoted at some length a warning by Justice Jackson in 1948: “The right of officers to thrust themselves into a home is … a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not a policeman …”

The disappearance of this sentiment from the pages of majority opinions of the US Supreme Court should be taken as a warning of things to come.

Supreme Court rules that companies can block class-action lawsuits

Thursday, April 28th, 2011
http://www.rawstory.com/rs/2011/04/28/supreme-court-rules-that-companies-can-block-class-action-lawsuits/

WASHINGTON (Reuters) - The U.S. Supreme Court on Wednesday handed businesses such as AT&T Inc a major victory by upholding the use of arbitration for customer disputes rather than allowing claims to be brought together as a group.

By a 5-4 vote, the high court ruled that an AT&T unit could enforce a provision in its customer contracts requiring individual arbitration and preventing the pooling together of claims into a class-action lawsuit or class-wide arbitration.

The plaintiffs, Vincent and Liza Concepcion, filed their class-action lawsuit in 2006, claiming they were improperly charged about $30 in sales taxes on cellphones that the AT&T Mobility wireless unit had advertised as free.

AT&T, the No. 2 U.S. mobile service, was backed in the case by a number of other companies and by the U.S. Chamber of Commerce business group, while consumer and civil rights groups supported the California couple.

Companies generally prefer arbitration as a less expensive way of settling consumer disputes, as opposed to costly class actions, which allow customers to band together and can result in large monetary awards.

Customer arbitration agreements are widely used by cellphone carriers, cable providers, credit card companies, stock brokerage firms and other businesses.

Vanderbilt University law professor Brian Fitzpatrick said it may be the most important class action case ever decided by the Supreme Court.

"Because companies can ask all of their consumers, employees, and perhaps even shareholders to sign arbitration agreements, this decision has the potential to permit companies to escape class action liability in almost all of their activities," he said.

Shares of AT&T closed up 1.55 percent at $31.42 on the New York Stock Exchange.

AT&T DEFENDS ARBITRATION AS FAIR

AT&T praised the ruling, saying the Supreme Court recognized that arbitration often benefits consumers. "We value our customers, and AT&T's arbitration program is free, fair, fast, easy to use, and consumer-friendly," the company said.

AT&T said its arbitration agreements required it to pay at least $7,500 if the arbitrator awarded more than the company's final settlement offer and to pay all arbitration costs for nonfrivolous claims.

Deepak Gupta, an attorney at the consumer advocacy group Public Citizen who represented the couple, denounced the decision and said class actions had been an essential tool to achieve justice in U.S. society.

"The U.S. Supreme Court dealt a crushing blow to American consumers and employees, ruling that companies can ban class actions in the fine print of contracts," he said.

AT&T had argued that a federal law that encourages the use of arbitration, the Federal Arbitration Act, trumped a California consumer protection law at issue in the case.

In its ruling, the Supreme Court's conservative majority agreed.

"The California law in question stands as an obstacle to the accomplishment of the purposes and the objectives of the FAA. It is accordingly preempted," Justice Antonin Scalia said for the majority in reading his opinion from the bench.

Scalia cited a federal judge's conclusion in the case that the couple was better off under the AT&T arbitration agreement than under a class action, which could take months or years and could result in their winning just a small amount of money.

The ruling, which reversed a decision by a U.S. appeals court in California, was the latest in a series by the Supreme Court in recent years that generally favored arbitration.

The court's four liberal justices dissented. "The Court is wrong to hold that the federal act preempts the rule of state law," Justice Stephen Breyer wrote in dissent.

The Supreme Court case is AT&T Mobility v. Concepcion, No. 09-893.

(Reporting by James Vicini, Editing by Lisa Von Ahn, Gary Hill)

Corporations don't have 'personal privacy' rights, Supreme Court rules

AT&T had fought the release of FCC documents based on a law that shields records which might result in an invasion of privacy. An appellate court sided with AT&T, but the Supreme Court did not. March 02, 2011
David G. Savage, Los Angeles Times
http://articles.latimes.com/2011/mar/02/business/la-fi-court-corporations-20110302

Corporations do not have a right to "personal privacy," the Supreme Court ruled unanimously, at least when it comes to the Freedom of Information Act and the release of documents held by the government.

Last year's ruling giving companies a free-speech right to spend money on campaign ads prompted liberal critics to say the court's conservatives were biased in favor of corporate rights.

While not alluding to the criticism, Chief Justice John G. Roberts Jr. took a scalpel to a corporate-rights claim from AT&T Inc. that its "personal privacy" deserves to be protected. The ordinary meaning of "personal" does not refer to an impersonal company, he said.

"We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence or personal tragedy as referring to corporations or other artificial entities," he wrote. "In fact, we often use the word 'personal' to mean precisely the opposite of business-related: We speak of personal expenses and business expenses, personal life and work life, personal opinion and a company's view."

The decision means the Federal Communications Commission may release documents that were compiled during an investigation in 2004 over whether AT&T had overcharged schools and libraries for use of the Internet. The company paid a $500,000 settlement.

When some of its competitors sought release of the documents through the Freedom of Information Act, AT&T objected. It cited an exception in the law that shields law enforcement records which might result in an "unwarranted invasion of personal privacy."

AT&T won a ruling based on that provision from the U.S. 3rd Circuit Court of Appeals in Philadelphia. Its judges noted one part of the law defines "person" to include not just an individual but also a "partnership, association or corporation."

Then U.S. Solicitor Gen. Elena Kagan appealed the issue to the Supreme Court. She said the Freedom of Information Act had never been interpreted to protect the "personal privacy" of companies.

All the justices agreed in FCC v. AT&T, with the exception of Kagan, who did not participate. "We trust that AT&T will not take it personally," Roberts said in a parting comment.

david.savage@latimes.com

1st Amendment protects military funeral protesters

From the AP:


The Supreme Court ruled Wednesday that the First Amendment protects fundamentalist church members who mount anti-gay protests outside military funerals, despite the pain they cause grieving families.

The court voted 8-1 in favor of the Westboro Baptist Church of Topeka, Kan. The decision upheld an appeals court ruling that threw out a $5 million judgment to the father of a dead Marine who sued church members after they picketed his son's funeral.

Chief Justice John Roberts wrote the opinion for the court. Justice Samuel Alito dissented.

Roberts said free speech rights in the First Amendment shield the funeral protesters, noting that they obeyed police directions and were 1,000 feet from the church.

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker," Roberts said. "As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

1st Amendment protects military funeral protesters

MARK SHERMAN
3-2-11
http://news.yahoo.com/s/ap/20110302/ap_on_re_us/us_supreme_court_funeral_protests

Obamacare Ruled Unconstitutional Again

From the New York Times:

"A second federal judge ruled on Monday that it was unconstitutional for Congress to enact a health care law that required Americans to obtain commercial insurance, evening the score at 2 to 2 in the lower courts as conflicting opinions begin their path to the Supreme Court.

But unlike a Virginia judge in December, Judge Roger Vinson of Federal District Court in Pensacola, Fla., concluded that the insurance requirement was so 'inextricably bound' to other provisions of the Affordable Care Act that its unconstitutionality required the invalidation of the entire law.

'The act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker,' Judge Vinson wrote...

In his 78-page opinion, Judge Vinson held that the insurance requirement exceeded the regulatory powers granted to Congress under the Commerce Clause of the Constitution. He wrote that the provision could not be rescued by an associated clause in Article I that gives Congress broad authority to make laws 'necessary and proper' to carrying out its designated responsibilities.

'If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain,' the judge asserted...

Judge Vinson’s opinion hangs on a series of Supreme Court decisions that have defined the limits of the Commerce Clause by granting Congress authority to regulate 'activities that substantially affect interstate commerce.'

The plaintiffs characterized the insurance requirement as an unprecedented effort to regulate inactivity because citizens would be assessed an income tax penalty for failing to buy a product.

Justice Department lawyers responded that a choice not to obtain health insurance was itself an active decision that, taken in the aggregate, shifted the cost of caring for the uninsured to hospitals, governments and privately insured individuals.

In his decision, Judge Vinson wrote, 'It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause.' If Congress has such power, he continued, 'it is not hyperbolizing to suggest that Congress could do almost anything it wanted.'"


Why did Vinson rule the whole law unconstitutional because of a single provision? Ken Klukowski of the Family Research Council did a surprisingly great job of explaining why at Fox News:

"A single law usually contains many different provisions. Lawmakers know that if someone challenges the constitutionality of a statute, they often challenge only one or two provisions of it. So lawmakers usually try to make sure at least part of their law will survive.

The process of striking down only part of a law is called 'severability.' Therefore Congress almost always inserts a severability clause, saying that if part of the law is struck down, the remaining provisions continue in full force and effect.

Congress did not insert a severability clause in ObamaCare. So even though only a couple provisions of the health care law are being challenged in the Florida case — those two provisions being the individual mandate aka the requirement that every American has to buy insurance and also the sweeping expansion of Medicaid — the issue arises that if a court strikes down either of those provisions, it might strike down the entire statute...

Severability is an issue so far off the beaten path that few lawyers have ever dealt with it, even though including a severability clause in legislation — or in contracts — is so common that it’s now boilerplate. So it would surprise most lawyers that a judge would strike down all of ObamaCare.

But it’s not surprising if you look at how the Supreme Court deals with the issue of severability...

Not only does ObamaCare lack a severability clause, Congress also includes in the individual mandate section (which is Section 1501) a declaration that the mandate is 'essential' to the statute functioning in the manner Congress desires. This closely tracks language in the Supreme Court’s precedents for when a court must strike down the entire law."


Left unsaid is why no severability clause (which Klukowski describes as "boilerplate") was included in Obamacare. My guess is that Team Obama was so delusional in their assumption of how popular most of their reforms would be, they made it an all-of-nothing as a legal poison pill against challenges. A more cynical (and conspiratorial) explanation is that Democratic leadership secretly wants health reform to fail and have those evil Republicans in the Supreme Court be their scapegoat.

Perhaps the most disappointing trend of the ruling is this, as noted by the Times:

"The ruling by Judge Vinson, a senior judge who was appointed by President Ronald Reagan, solidified the divide in the health litigation among judges named by Republicans and those named by Democrats.

In December, Judge Henry E. Hudson of Federal District Court in Richmond, Va., who was appointed by President George W. Bush, became the first to invalidate the insurance mandate. Two other federal judges named by President Bill Clinton, a Democrat, have upheld the law."


This despite the AP noting that the individual mandate is "an idea dating back to Republican proposals from the 1990s but is now almost universally rejected by conservatives." Indeed, the individual mandate was central to John McCain's "health reform" plan of 2008.

This underscores the pathetic dynamics of Obamacare: bunch of a Democratic apologists bending over backwards defending an unpopular plan made by right-wingers who wisely won't even defend it.

The upside down Bizzaro world of the Obamacare debate is summed up in by the World Socialist Web Site:

"The focus of the legal proceedings on the individual mandate is a byproduct of the Obama administration’s overall approach to the issue of health care, which is politically reactionary. The White House drafted legislation whose main purpose was to reduce health care costs for American corporations and the federal government, while enlisting the insurance industry, the drug companies and the for-profit hospital chains in the process and ensuring their profit interests.

Instead of establishing the right of all people to medical care — a right that is essential to a decent and humane society — the Obama administration legislated the right of profit-making insurance companies to collect premiums, mandating that every individual not covered by Medicare or Medicaid must purchase a health insurance policy.

This policy in effect blames the uninsured, i.e., the victims, for the failure of the profit-driven US health care system, and seeks to punish them by forcing them to pay exorbitant premiums or a fine estimated at nearly $2,100 per capita, once the system is fully in place in 2014.

This measure is regressive in itself, placing a considerable financial burden on hard-pressed low-wage workers. And it is doubly reactionary because it allows the political right, which opposes any extension of social benefits, to posture as the defender of 'individual freedom' against a new government imposition.

To the extent that the Tea Party agitation, financed by a handful of ultra-right-wing billionaires, was able to gain any popular influence, it is because of measures like the individual mandate and the Obama administration’s decision to finance its supposed expansion of coverage by cuts in Medicare, rather than through taxes on the wealthy or big business."

Federal Judge Rules That Health Law Violates Constitution
KEVIN SACK
January 31, 2011
http://www.nytimes.com/2011/02/01/us/01ruling.html

ObamaCare Unconstitutional -- Why Judge Vinson's Ruling Is So Important
Ken Klukowski
February 01, 2011
http://www.foxnews.com/opinion/2011/02/01/obamacare-unconstitutional-judge-vinsons-ruling-important

Federal judge rules Obama health care law unconstitutional
Patrick Martin
3 February 2011
http://wsws.org/articles/2011/feb2011/heal-f03.shtml

Scalia Kills Corporate Personhood

"In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that... But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society."

So said Antonin Scalia recently in a highly controversial speech.

However, as noted on FireDogLake.com, if he actually believes this, then the whole idea of corporate personhood gaining rights through the 14th Amendment is totally bogus. Thom Hartmann is quoted saying that "before the Supreme Court the Southern Pacific Railroad argued in this case that the 14th amendment which says ‘no person shall be denied equal protection under the law’ should apply to them as a corporation. In other words, that as a corporation they should have rights under the constitution because the 14th amendment, when it was written to free the slaves in the 1870’s, the 14th amendment didn’t say ‘no natural person shall be denied equal protection under the law.’ Instead it says ‘no person.’ And for hundreds of years of common law we had this distinction between natural persons, you and me, and artificial persons: churches, governments, corporations."

Scalia Kills Corporate Personhood
Emptywheel
Wednesday January 5, 2011
http://emptywheel.firedoglake.com/2011/01/05/scalia-kills-corporate-personhood

Bush v. Gore's Dark American Decade

http://consortiumnews.com/2010/121210.html

Bush v. Gore's Dark American Decade
Robert Parry
December 12, 2010

Ten years ago, the United States stood at a crossroads though the dimness of the future made it hard for many to see which path led toward a brighter day and which headed toward disaster. But then, a partisan Republican majority of the U.S. Supreme Court made the choice for the nation.

At 10 p.m. on Dec. 12, 2000, the Supreme Court issued one of its most controversial rulings ever, telling Florida that its recount of the presidential election must include all legally cast ballots but giving the state the absurdly short time of two hours to complete the process.

Everyone immediately understood what the five partisan Republicans – William Rehnquist, Antonin Scalia, Clarence Thomas, Sandra Day O’Connor and Anthony Kennedy – had done: they had awarded the presidency to George W. Bush.

They did this even though it was clear that Bush had lost the national popular vote to Al Gore by half a million votes. It also appears that Bush would have lost Florida if the full recount had been given the necessary time.

Even if the butterfly ballot fiasco and other irregularities were ignored, Gore still was likely to prevail narrowly if all the legally cast ballots – those expressing the clear intent of the voters – were counted, as an unofficial tally by news organizations determined a year later.

So, instead of the deeply qualified Gore becoming president, the largely unqualified Bush took over, carrying with him an anti-government philosophy of tax cuts tilted toward the rich and reduced regulation for business, combined with a tough-guy-ism toward the world – essentially the script crafted three decades ago by President Ronald Reagan.

By virtually all objective measures, the consequences of Bush’s eight-year presidency were disastrous, including massive federal deficits, an economy ravaged by reckless gambling on Wall Street, and two costly wars still hemorrhaging money and blood.

However, after two years of President Barack Obama and the Democratic Congress undertaking emergency (and often unpopular) steps to stabilize the collapsing economy, the Republicans pounded a campaign drum of fiscal responsibility and deficit reduction, deriding Obama’s modest stimulus efforts and health-care reform as costly failures.

In their comeback, the Republicans also were aided by another Supreme Court ruling in early 2010, the Citizens United case, in which two right-wing appointees of President Bush – John Roberts and Samuel Alito – joined with Scalia, Thomas and Kennedy to strike down restrictions on corporate spending for political ads.

The ruling unleashed an unprecedented wave of TV commercials pounding the Democrats as fiscally irresponsible, accusing them of burdening America’s children with debt while failing to solve the nation’s economic troubles.

Many Americans responded to this messaging about fiscal responsibility by going to the polls on Nov. 2 and handing the Republicans a resounding victory, including GOP control of the House of Representatives and a much stronger hand in the Senate.

However, instead of attacking the deficit, the first act of the victorious Republicans was to coerce Obama into accepting an extension and expansion of tax cuts for the rich, in exchange for more unemployment insurance and various tax breaks for small business and the middle class, a package that would add nearly $1 trillion to the debt.

To the dismay of the liberal Democratic base, Obama apparently has surveyed the power shift in American politics and concluded that he has little choice but to surrender to the Republicans. So the consequences of Election 2000 and the Supreme Court’s Bush v. Gore ruling live on.

Down the Rabbit Hole

Fittingly perhaps -- given the absurdity that has overtaken American politics -- the Bush v. Gore ruling was an Alice-in-Wonderland exercise in turning legal logic on its head and making a mockery of bedrock democratic principles, such as the one that says the candidate with the most votes is supposed to win.

But how that momentous decision was reached is still little understood by Americans, even a decade later.

The behind-the-scenes court drama began on Dec. 8, 2000. Bush was clinging to an official lead of only a few hundred votes out of six million cast in Florida when the Bush forces were dealt a crushing blow. A divided Florida Supreme Court ordered a statewide review of ballots that had been kicked out by antiquated counting machines.

The recount began on the morning of Dec. 9. Immediately, the canvassers began finding scores of legitimate votes that the machines had rejected.

Despite a supposed reverence for states’ rights and a disdain for federal interference, Bush’s lawyers raced to the U.S. Appeals Court in Atlanta to stop the count. Dominated by conservatives, the appeals court held to established precedents and refused to intervene.

A frantic Bush then turned to the U.S. Supreme Court in Washington. There, in the late afternoon, the high court took the unprecedented step of issuing an injunction to stop the counting of votes cast by American citizens.

Justice Scalia made clear that the purpose of the court’s action was to prevent Bush from falling behind in the tally and thus raising questions about his legitimacy should the Supreme Court later declare him the winner.

That outcome would “cast a cloud” over the “legitimacy” of an eventual Bush presidency, explained Scalia. “Count first, and rule upon the legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires,” Scalia wrote.

Trusting the Law

Nevertheless, on Dec. 11, Gore and his lawyers voiced confidence that the rule of law would prevail, that the U.S. Supreme Court would rise above any partisan concerns and would insist that the votes be counted and that the will of the voters be respected.

The Gore team went before Rehnquist’s court apparently still unaware that whatever they argued, the five Republican partisans were determined to make Bush the next president.

The evidence is now clear that Rehnquist and his four Republican colleagues decided on the outcome first and worked out the rationale second. Indeed, their legal logic flipped from the start of their deliberations to the end, but their pro-Bush verdict remained steadfast.

USA Today disclosed this inside story in an article about the strains that the Bush v. Gore ruling created within the court. Though the article was sympathetic to the pro-Bush justices, it disclosed an important fact: that the five were planning to rule for Bush after oral arguments on Dec. 11. The court even sent out for Chinese food for the clerks, so work could be completed that night. [USA Today, Jan. 22, 2001]

At that point, the legal rationale for stopping the Florida recount was to have been that the Florida Supreme Court had made “new law” when it referenced the state constitution in an initial recount decision – rather than simply interpreting state statutes.

Even though this basis for giving Bush the White House was highly technical, the rationale at least conformed with conservative principles, which are supposedly hostile to judicial “activism.” But the Florida Supreme Court threw a wrench into the plan.

On the evening of Dec. 11, the state court submitted a revised ruling that deleted the passing reference to the state constitution. The revised ruling based its reasoning entirely on state statutes, which permitted recounts in close elections.

This modified state ruling opened a split among the five conservatives. Justices O’Connor and Kennedy no longer felt they could agree with the “new law” rationale for blocking the recount, though Justices Rehnquist, Scalia and Thomas were prepared to stick with the old thinking even though its foundation had been removed.

Finding a Reason

The plans for finishing up the formal opinion on the evening of Dec. 11 were scrapped as O’Connor and Kennedy veered off in a very different direction.

Through the day on Dec. 12, they worked on an opinion arguing that the Florida Supreme Court had failed to set consistent standards for the recount and that the disparate county-by-county standards constituted a violation of the “equal protection” rules of the 14th Amendment.

The logic of this argument was quite thin and Kennedy reportedly had trouble committing it to writing. To anyone who had followed the Florida election, it was obvious that varied standards already had been applied throughout the state.

Wealthier precincts benefited from optical voting machines that were simple to use and eliminated nearly all errors, while poorer precincts with many African-Americans and retired Jews were stuck with outmoded punch-card systems with far higher error rates.

Some counties had conducted manual recounts, too, and those totals already were part of the tallies giving Bush a tiny lead

The statewide recount – ordered by the Florida Supreme Court – was designed to reduce those disparities and thus bring the results closer to equality. Applying the “equal protection” provision, as planned by O’Connor and Kennedy, turned the 14th Amendment on its head, guaranteeing less equality than would have occurred by letting the recount go forward.

Indeed, if one were to follow the “logic” of the O’Connor-Kennedy position, the only “fair” conclusion would have been to throw out Florida’s presidential election in total. After all, the U.S. Supreme Court was effectively judging Florida’s disparate standards to be unconstitutional. But that would have left Gore with a majority of the remaining electoral votes.

Or, more rationally, the U.S. Supreme Court could have given Florida more time to conduct the fuller recount that the O’Connor-Kennedy position envisioned, bringing in not only so-called “under-votes” in which a choice was hard to detect but “over-votes” in which citizens both punched the hole for their choice and wrote his name in.

However, Gore stood to benefit from either approach and that went against the pre-determined outcome to put Bush in the White House, whatever the legal excuse had to be.

Even more telling than the stretched logic of the O’Connor-Kennedy faction was the readiness of Rehnquist, Scalia and Thomas to sign on to a ruling that was almost completely at odds with their original legal rationale for blocking the recount.

On the night of Dec. 11, that trio was ready to bar the recount because the Florida Supreme Court had created “new law.” On Dec. 12, the same three justices were voting to block the recount because the Florida Supreme Court had not created “new law” – by establishing precise statewide recount standards.

The five conservatives had devised their own Catch-22. If the Florida Supreme Court set clearer standards, that would be struck down as creating “new law.” If the state court didn’t set clearer standards, that would be struck down as violating the “equal protection” principle. Heads Bush wins; tails Gore loses.

There was one other clever twist to the conservative majority’s maneuvering. When the ruling was issued at around 10 p.m. on Dec. 12, the O’Connor-Kennedy rationale asserted that the 14th Amendment required a recount with equal standards applied statewide, but then gave Florida only two hours to complete the process before a deadline of midnight.

Because this two-hour window was absurdly unrealistic, the result of the ruling was to give Bush the White House based on a 537-vote lead in the “official” Florida results, as overseen by the state administration of his brother, Gov. Jeb Bush.

Denying Politics

After the court’s ruling and Gore's gracious-but-pained concession speech the next day, Justice Thomas told a group of high school students that partisan considerations played “zero” part in the court's decisions.

Later, asked whether Thomas's assessment was accurate, Rehnquist answered, “Absolutely.”

In later comments about the court’s role in the case, Rehnquist seemed unfazed by the inconsistency of the court’s logic. His overriding rationale seemed to be that he viewed Bush’s election as good for the country – whether most voters thought so or not.

In a speech on Jan. 7, 2001, Rehnquist said sometimes the U.S. Supreme Court needed to intervene in politics to extricate the nation from a crisis. His remarks were made in the context of the Hayes-Tilden race in 1876, when another popular vote loser, Rutherford B. Hayes, was awarded the presidency after justices participated in a special election commission.

“The political processes of the country had worked, admittedly in a rather unusual way, to avoid a serious crisis,” Rehnquist said.

Scholars interpreted Rehnquist’s remarks as shedding light on his thinking during the Bush v. Gore case as well.

“He’s making a rather clear statement of what he thought the primary job of our governmental process was,” said Michael Les Benedict, a history professor at Ohio State University. “That was to make sure the conflict is resolved peacefully, with no violence.” [Washington Post, Jan. 19, 2001]

But where were the threats of violence and acts of disruption in the 2000 election?

Gore had reined in his supporters, urging them to avoid confrontations and to trust in the “rule of law.” The only violence had come from the Bush side, when the Bush campaign flew protesters from Washington to Miami to put pressure on local election boards.

On Nov. 22, 2000, as the Miami-Dade canvassing board was preparing to examine ballots, a well-dressed mob of Republican operatives charged the office, roughed up some Democrats and pounded on the walls. The canvassing board promptly reversed itself and decided to forego the recount.

The next night, the Bush-Cheney campaign feted the rioters at a hotel party in Fort Lauderdale. Starring at the event was crooner Wayne Newton singing “Danke Schoen,” but the highlight for the operatives was a thank-you call from George W. Bush and his running mate, Dick Cheney, both of whom joked about the Miami-Dade incident, the Wall Street Journal reported.

The Journal noted that “behind the rowdy rallies in South Florida this past weekend was a well-organized effort by Republican operatives to entice supporters to South Florida,” with House Majority Whip Tom DeLay's Capitol Hill office taking charge of the recruitment. [WSJ, Nov. 27, 2000.]

Republican Defiance

In other less violent ways, Bush-Cheney operatives signaled that they would not accept an unfavorable vote total in Florida.

In the chance that Gore pulled ahead, the Republican-controlled state legislature was preparing to void the results. In Washington, the Republican congressional leadership also was threatening to force a constitutional crisis if Gore prevailed in Florida.

If one takes Rehnquist’s “good-for-the-country” rationale seriously, that means the U.S. Supreme Court was ready to award the presidency to the side most willing to use violence and other anti-democratic means to overturn the will of the voters.

Rehnquist’s approach suggested that since Gore and his supporters were less likely to resort to violence – while Bush and his backers were ready to provoke a crisis if they didn’t get their way – that the high court should give the presidency to the side most committed to disruption.

A far more democratic – and rational – approach would have been for the Supreme Court to accept the O’Connor-Kennedy logic and simply extend the deadline for Florida to turn in its results. The court could have ordered the fullest and fairest possible recount with the winner being whichever candidate ended up with the most votes.

However, if that had occurred, the almost certain winner would have been Gore.

When a group of news organizations conducted an unofficial recount of Florida’s disputed ballots in 2001, Gore came out narrowly on top regardless of what standards were applied to the famous chads – dimpled, hanging or punched-through.

Gore’s victory would have been assured by the so-called “over-votes” in which a voter both punched through a candidate’s name and wrote it in. Under Florida law, such “over-votes” are legal and they broke heavily in Gore’s favor.

In other words, the wrong candidate had been awarded the presidency. However, this startling fact became an unpleasant reality that the mainstream U.S. news media decided to obscure.

The tally wasn’t completed until after the terrorist attacks on 9/11 and the prevailing view among senior news executives became that it would be harmful to the nation’s need for unity if the press reported that Gore was the rightful winner of Election 2000.

So, the major newspapers and TV networks hid their own scoop when the results were published on Nov. 12, 2001. Instead of stating clearly that Florida’s legally cast votes favored Gore, the mainstream media bent over backwards to concoct hypothetical situations in which Bush might still have won the presidency, such as if the recount were limited to only a few counties or if the legal “over-votes” were excluded.

The discovery of Gore’s rightful victory was buried deep in the stories or relegated to charts that accompanied the articles.

Misleading the Readers

Any casual reader would have come away from reading the New York Times or the Washington Post with the conclusion that Bush really had won Florida and thus was the legitimate president after all.

The Post’s headline read, “Florida Recounts Would Have Favored Bush.” The Times ran the headline: “Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote.”

Some columnists, such as the Post’s media analyst Howard Kurtz, even launched preemptive strikes against anyone who would read the fine print and spot the hidden “lede” of Gore’s victory. Kurtz labeled such people “conspiracy theorists.” [Washington Post, Nov. 12, 2001]

After reading these slanted “Bush Won” stories, I wrote an article for Consortiumnews.com noting that the obvious “lede” should have been that the recount revealed that Gore had won. I suggested that the news judgments of senior editors might have been influenced by a desire to appear patriotic only two months after 9/11.

My article had been up for only a couple of hours when I received an irate phone call from New York Times media writer Felicity Barringer, who accused me of impugning the journalistic integrity of then-Times executive editor Howell Raines. I got the impression that Barringer had been on the look-out for some deviant story that didn’t accept the pro-Bush conventional wisdom.

Today, the dominant conventional wisdom appears to be that while the Bush v. Gore decision was a case of politicized justice, it’s not something that Americans should get too upset about. There is even a school of thought that asserts that it was encouraging that U.S. citizens did not take to the streets to protest this overturning of their democratic judgment.

In a Sept. 13, 2010, interview with NBC’s Brian Williams, Justice Stephen Breyer, one of the dissenters in the Bush v. Gore ruling, said he still believed the majority was wrong, but added that he found the aftermath remarkable in a positive way.

“That remarkable thing, is even though more than half the public strongly disagreed with it [Bush v. Gore], thought it was really wrong, they followed it,” Breyer said. “And the alternative, using guns, having revolutions, is a worse alternative.

“And it’s taken quite a long time, many, many years, decades and decades for Americans to come to that understanding. And that fact — that America will follow court decisions made by fallible human beings, even when those decisions are very unpopular — has not always been true.”

In other words, Breyer believes it is preferable for Americans to accept an anti-democratic judgment made by five partisans in black robes than to rise up in outrage against a powerful institution that has usurped the role of the voters and overturned the consent of the governed.

Yet, is that acquiescence really preferable to the courageous actions by people all over the world who have staged protests and risked their lives in defense of democracy when autocratic rulers have refused to accept the results of an election?

A decade after the fateful court ruling – with the results of Bush’s presidency now painfully apparent and his own appointed justices helping to open the floodgates of special-interest money to further distort the democratic process – Bush v. Gore must be viewed as a moment when the United States started down a very dark road.

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & 'Project Truth' are also available there.