Currently viewing the tag: "US Supreme Court"

One of the myths fostered by the right wing is that liberal judges are activists and conservative judges are strict constructionists and only follow the law.  The right wing froths at the mouth, painting judges they don’t like as trying to write new law through their judicial decisions.  Yet as Jeffrey R Stone points out in an article in the New York Times entitled “Our Fill-in-the-Blank Constitution” conservatives are grossly misrepresenting the actions of conservative judges when the record is examined.

As Stone points out:

Rulings by conservative justices in the past decade make it perfectly clear that they do not “apply the law” in a neutral and detached manner. Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.

Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is.judicial activism

The right wing has done a good political job of framing the issue through its aggressive media advocacy to infiltrate and indoctrinate its message into the news media. The left has not been as successful.  David Brock wrote a book a few years back entitled, The Republican Noise Machine Right-Wing Media and how it Corrupts Democracy, that details how the right wing came to be adept at getting their message out.  The current manipulation of the Tea Party by Republican operatives like former House Speaker Dick Amery at Freedom Works is a current example of the resurgence of the Republican Noise Machine as a backlash against Obama.

Expect in the upcoming effort by President Obama to appoint someone to fill the US Supreme Court seat being vacated by Justice John Paul Stevens that the right wing will vigerously denounce any Obama nominee as too liberal and extreme and that the false mantra of judicial activism will be brought up with any prospective nominee  involved in decisions not supported by the right wing. Keep the Republican Noise in perspective and realize that the volume of noise by the Right Wing, including the so called Tea Party folks, in no way is a valid measure of the truth.

As Media Matters notes in an article entitled “Right-wing media demonstrate “judicial activism” by urging landmark healthcare bill be overturned by courts”,  it is the right wing that is practicing judicial activism.

A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder showed that among Supreme Court justices at that time, those most frequently labeled “conservative” were among the most frequent practitioners of at least one brand of judicial activism — the tendency to strike down statutes passed by Congress. Those most frequently labeled “liberal” were the least likely to strike down statutes passed by Congress.

A 2007 study by Cass R. Sunstein (subsequently named by President Obama to head the White House Office of Information and Regulatory Affairs) and University of Chicago law professor Thomas Miles used a different measurement of judicial activism — the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court’s “conservative” justices were the most likely to engage in “judicial activism” while the “liberal” justices were most likely to exercise “judicial restraint.”

Speculation is that 90 year old US Supreme Court Justice John Paul Stevens will retiresometime in the next few months.  This will give President Obama  a second nominee to the U S Supreme Court. The current makeup and history of the Court suggests that he should nominate another woman to fill the next vacant seat.

Last year Obama  appointed Sonia Sotomayor to replace Justice David Souter. In the Supreme Court’s 220 year history, Justice Sotomayor was only the third woman nominated and subsequently approved by the US Senate. This is despite the fact that there have been a total of 16 Chief Justices and over 100 Associate Justices since the Court began.

Justice Sandra Day O’Connor was the first woman appointed. Ronald Reagan appointed her in 1981 and she retired in 2006.  Justice Ruth Bader Ginsberg was appointed by President Clinton in 1993 and is still serving.  This brings the current Supreme Court composition to 2 women and 7 men.  Justice Ginsberg has had health problems including pancreatic cancer last year and is currently 77 years old. She has been rumored also to possibly step down soon but right now Stevens resigning is more likely in the short term.

The Wall Street Journal mentions two women as likely candidates to succeed Stevens:

“One is Mr. Obama’s solicitor general, Elena Kagan, a former dean of Harvard Law School who was considered for the nomination that ultimately went to Justice Sonia Sotomayor.

Despite her scholarly career, Ms. Kagan hasn’t produced the kind of provocative writings that could provide ammunition for conservative opponents, legal experts say.

That also dims enthusiasm for her from liberal groups, who have been hoping for a full-throated progressive ready to joust with such determined conservatives as Chief Justice Roberts and Justice Scalia.

Liberals see a surer voice in another finalist for last year’s vacancy, Judge Diane Wood of the Seventh U.S. Circuit Court of Appeals in Chicago. On a court known for its intellectual heft, Judge Wood has proven a serious counterweight to such influential conservative judges as Richard Posner and Frank Easterbrook, legal observers say.

For the same reason, conservative activists say they are more likely to fight Judge Wood’s nomination.”

Jeffrey Tobin in an interview last month on NPR agreed regarding Kagan as a strong possibility:

” I think it’s going to be Elena Kagan, the current solicitor general and the former dean of Harvard Law School. She has a reputation as a consensus builder. She is someone who brought vigorously fighting factions at Harvard together. She worked in the Clinton administration and had good relationships with Republicans in Congress at the time. She has never been a judge, which I think is a point in her favor for Obama. There are all former judges on the court now, and I think Obama wants people of more different backgrounds. So I think she’s the likely choice.”

Given the uncertain future of Justice Ginsberg and the almost total male dominance of the Supreme Court appointees over the lifetime of the Court, it is time to balance out the Court by appointing more women.  Obama needs to appoint future Supreme Court Justices that reflect the principles he ran on and that won him election.

No matter who he nominates, it is certain that the Republicans will filibuster or stall the nomination process for any Obama Appointee.  The worst thing he could do is try to nominate someone who will appease the conservatives and further push the Supreme Court to the right. After the health care fight it is pretty obvious that Republicans will do anything they can.

Obama’s best chance to regain and strenghten public support for his Presidency is to do the right thing, rather than cater to political inaction and right wing fear mongering. Appointing another woman to the US Supreme Court is the right thing to do. It’s time to right this injustice to women who comprise one half of our nation.  A proper balance would be to have 4 or 5 women Justices on the US Supreme Court.

The US Supreme Court today opened the corporate floodgates to unlimited spending on political campaigns by repealing key sections of the McCain Feingold Bill that placed limits on corporate and labor spending in national elections.

The decision makes a mockery of conservatives decrying judicial activism because the Supreme Court in a 5 to 4 vote reached beyond the initial case to review several recent Supreme Court decisions and overturn them. The decision enhances the influence of corporations and labor unions by equating money with free speech. The ability of corporations to spend money greatly exceeds that of labor unions.

Unfortunately we are not all equal in the amount of money we have so the decision further diminishes the influence of most voters to affect the outcome of elections. The conservatives on the US Supreme court ruled in favor of corporate paid speech over individual free speech and a fair playing field for political dialogue. They shifted the advantage to moneyed interest to dominate political campaign.  This is not free speech, this is handicapping elections in favor of corporations and  business. This is what you get with conservatives controlling the US Supreme Court as the result of appointments by Republican Presidents and points to the extreme importance of who is President and who they  nominate to the US Supreme Court.

Obama in the White House will make a big difference in any future Justices appointed. While Democrats were caught snoozing in Massachusetts, allowing Republican to snatch the 60th vote needed to stop the filibuster; they now need to work harder to be organized and oppose any further erosion of Democratic support. A goal should be to get that filibuster proof majority back in the US Senate.

This Supreme Court decision is just another example of how a right wing conservative agenda is bad for America and its citizens. Corporations are not equal to citizens. There is an extreme danger in this ruling that money will be a more decisive factor in future elections  than issues. Money buys exposure.  Unfortunately the Supreme Court ruled against  restraining special moneyed interests from dominating the political discourse. Democracy unfortunately is the victim and voters will suffer as a result.

Federal law currently prohibits the spending of corporate money in Federal elections. Many states also prohibit the spending of corporate money in state elections. But this could all change soon as the US Supreme Court is considering overturning the ban on corporate money in elections put in place over 100 years ago by President Theodore Roosevelt.

Two judicial decisions, one in 1990 and the other in 2003, that supported the ban on corporate money are being reviewed and are in danger of being overturned by the current conservative majority of the court. In 1990 the US Supreme Court upheld a state law on banning corporate donations. Justices Kennedy and Scalia dissented on that case.

The second case was a 5 to 4 decision in 2003 which upheld the McCain-Feingold ban on union and corporate broadcast ads the month prior to an election. In that case Scalia, Thomas, and Kennedy were opposed. Since then Justice Alito replaced Justice Sandra Day O’Connor and Chief Justice John Roberts was appointed. The appointment of Justice Sotomayer for Souter did not result in a vote change since she is likely to vote the same as Souter did.

The case before the Court Initially involved the banning of “Hilliary: the Movie” by the Federal Elections Commission as electioneering under McCain – Feingold. The conservative Justices have succeeded in scheduling a special Court session on Sept 9, 2009 to hear arguments on overturning the corporate ban on money in elections.

The issue is one that pits “free speech” versus the influence of corporate money in elections. In an article in today’s Seattle Times entitled “Corporate election spending up for review” they note that:

With the corporate-spending limits at risk of reversal, advocates of campaign-funding laws are sounding the alarm. Striking down corporate spending limits would be “a radical step” that would change the character of elections, said Fred Wertheimer, president of Democracy 21.

“Banks like Citicorp, investment firms like Merrill Lynch and insurance companies like AIG would be free to spend hundreds of millions of dollars of their corporate wealth to directly support the election of federal officeholders who do their legislative bidding and to directly oppose [those] who refused to carry out their wishes,” Wertheimer said.

“This could take us back to the era when people referred to the senator from Standard Oil,” agreed Washington, D.C., lawyer Trevor Potter, who last year advised Republican Sen. John McCain’s presidential campaign. “If you have hundreds of millions of corporate dollars flowing into these races, it could drown out the speech of ordinary voters

The New York Times article today is entitled “Justices to Revisit ‘Hillary Film, and Corporate Cash in Politics” also has an in depth discussion of the issues involved. The add an additional quote by Fred Wertheimer saying that , “We’re not dealing with campaign finance laws. We’re dealing with the essence of power in America.”

So much for the Republican conservative hypocrisy on saying they oppose activist judges. Seems the conservative contingent on the Supreme Court is ready to overturn 100 years of judicial law.

Two thoughts emerge. One is why should corporations even be considered to be accorded free speech protections under the Constitution? A corporation is not an entity in the US Constitution but people are..

The second is how anyone can consider money spent by corporations as equivalent to free speech. Multimillion dollar expenditures by corporations can easily drown out the free speech rights and voices of average citizens. There is no limit on corporations speaking out and holding press conferences and issuing press releases. The issue is one of whether corporate financial money should give their view and position on candidates an unfair advantage becasue they can buy paid media and lots of it.

Maybe this is all one more reason pushing the county toward public financing of campaigns so that candidates can compete on an equal basis on their ideas, not on the basis of whether they have corporate friends willing to support them.

U.S. Supreme Court maneuvering in a case involving corporate money in political campaigns suggests that the right wing majority on the court is practicing judicial activism. The case involves a corporate documentary last year that was critical of Hilliary Clinton. According to an article today in the New York Times entitled “High Court Poised to Rewrite Spending Rules” the US Supreme Court appears to be setting up to overturn major provisions of the McCain Feingold law that it upheld just 2 years ago.

What has changed in those 2 years is that two more conservative justices have been appointed to the Court – Justices Roberts and Alito. As the New York Times notes “The Roberts court has struck down every campaign finance regulation to reach it, and it seems to have a majority prepared to do more. “

The issue involves “corporate money” in campaigns. The conservatives say that limiting the spending of corporate money is equal to limiting free speech. They argue limiting corporate money in elections violates the first amendment.

Of course there are several assumptions here that are questionable. One is that corporations should be accorded the same rights as citizens under the first amendment and second the assumption that equating the ability to spend money is somehow equivalent to a free speech right. The reality is that money buys access and exposure and corporations in general have more access to money that individuals.

The problem here is how you reconcile fairness in elections with lavish spending of money by special interests. Obviously the more money a corporation has, the more ability they have to get their message out to the voters. Thus the more money they have, the more “free” speech they have. At what point does corporate free spending of money overwhelm the ability of those with limited ability to raise money to have their voice heard?

The issue as the NY Times states is that “The court is poised to reverse longstanding precedents concerning the rights of corporations to participate in politics,” said Nathaniel Persily, a law professor at Columbia. “The only reason to ask for reargument on this is if they’re going to overturn Austin and McConnell.”

The issue is another that denotes the hypocrisy of conservatives. They argue against judicial activism, unless it is their own activism. Its just like conservative Republicans arguing for the sanctity of marriage except when its their marriage. Look not at what they say, but what they do. In this case it appears they are actively working to overturn a law they don’t agree with now, that two years ago a court without Roberts and Alito supported.

The current case as stated by the NY Times

involves “Hillary: The Movie,” a slashing political documentary released last year while Mrs. Clinton, now the secretary of state, was seeking the democratic presidential nomination. The film was produced by Citizens United, a conservative advocacy group that is a nonprofit corporation.

The McCain-Feingold law bans the broadcast, cable or satellite transmission of “electioneering communications” paid for by corporations in the 30 days before a presidential primary and in the 60 days before a general election.

The law, as narrowed by a 2007 Supreme Court decision, applies to communications “susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” It also requires spoken and written disclaimers in the film and ads for it, along with the disclosure of contributors’ names.”

A Supreme Court with several Obama appointees could very well reverse the negative climate against campaign finance restrictions. See related article e.g. on Sonja Sotomayor in NY Times entitled, “A Long Record on Campaign Finance, Often in Support of Regulations” which notes that “In 1996, Judge Sonia Sotomayor delivered a speech comparing campaign contributions to “bribes” and asking whether elected officials could credibly say they were “representing only the general public good, when private money plays such a large role” in helping them win office.”

This threat of new appointees to the US Supreme Court by Obama obviously seems behind this manoeuvring by the present court to reverse McCain Feingold and their two year old decision. This is the type of judicial activism we need to fear – a conservative US Supreme Court hell bent on attacking laws they don’t support. They are trying to act before the Court changes to a more mainstream philosophy that the American people support. This distorted right wing philosophy of judicial activists like Roberts and Alito intent on changing US laws they don’t like will remain a threat until the makeup of the US Supreme Court changes.

“Unabashed Liberal” Who cares that Karl Rove today said that Obama’s Supreme Court appointment is an “unabashed liberal”? Anyone to the left of Karl Rove is an unabashed liberal and the public has said good riddance to the Rove/Bush /Cheney era because it failed to live up to what America is and what it can become.

Let the Republicans add “Woman” and “Hispanic” to the list. Whatever helps to speed up their digging their own grave, so much the better. Fortunately the country is moving on faster than they are able to keep up.

Obama today nominated as many expected, US Appeals Court Judge Sonja Sotomayer to the US Supreme Court. When confirmed, as appears likely considering the current makeup of the US Senate, she will only be the third woman to sit on the US Supreme Court since its inception in 1789. She will also be the first Hispanic.

She would become the 111th member of the US Supreme Court, joining what has been for 220 years an old boy’s club. Out of the previous 110 Supreme Court Justices only two, Sandra Day O’Connor and Ruth Bader Ginsburg , have been women.

SCOTUS.com notes that conservatives will be fighting a losing battle opposing Sotomeyer. They believe that:

“Republicans cannot afford to find themselves in the position of implicitly opposing Judge Sotomayor. To Hispanics, the nomination would be an absolutely historic landmark. It really is impossible to overstate its significance. The achievement of a lifetime appointment at the absolute highest levels of the government is a profound event for that community, which in turn is a vital electoral group now and in the future.

Scotus.com suggests that Republicans will back off and states “with Justice Stevens’s retirement inevitable in the next few years, Republican senators are very likely to hold off conservative interest groups with promises to sharply examine President Obama’s second (potentially white male) nominee.”

This is where I hope POTUS.com is wrong. “Potentially white male” as Obama’s next choice is wrong. Obama has a chance to change the court and the country to reflect the voting public. Frankly I think Obama should appoint more women. The Supreme Court is so out of balance that its time to make a dynamic shift and right the imbalance. It would be fun watching the Republicans scream “What another woman?” as Obama appoints the fourth, fifth and sixth woman to sit on the US Supreme Court. Why not? Let’s see some audacity. Let’s see some hope for real change, not just tokenism.

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Is it any surprise that the right wing US Supreme Court has refused to hear an appeal of Congressman Jim McDermott’s First Amendment case? Congressman McDermott case seems simple enough and the Supreme Court actually ruled on a similar case previously. But for a US Supreme Court that had seen fit, among other things, to appoint George Bush President; ignoring first amendment rights of a liberal Seattle Democratic Congressman is just small potatoes.

Congressman McDermott’s sin was that he released a cell phone conversation between Rep John Boehner, Newt Gingrich and other Republican leaders. Eli Sanders has a good account of the circumstances in an excellent in depth story he wrote last year for the Stranger entitled, “The War on Jim McDermott”.

“The Republican legal crusade against McDermott has its roots in a 1996 ethics charge that bedeviled former Republican House Speaker Newt Gingrich. At the time, McDermott was the ranking Democrat on the House ethics committee and Gingrich, the mastermind of the 1994 “Republican Revolution,” which gave Republicans control of Congress for the first time in 40 years, was facing complaints over his use of a college course for political purposes. To settle the complaint, Gingrich agreed to pay a $300,000 fine and promised not to publicly minimize, or “spin,” the charge against him.
“That was the genesis of this phone call,” McDermott says, referring to a conference call that Gingrich held in secret with Republican leaders shortly after the settlement. “Essentially, he was encouraging them to figure out how to spin it,” McDermott says—a direct violation of his agreement with the ethics committee….

Gingrich’s secret conference call involved several members of the Republican House leadership, and as it happened, one of those leaders, Boehner, the congressman from Ohio, was driving through Florida at the very moment his colleagues needed him to be on the phone. So Boehner pulled into the parking lot of a Waffle House and joined the conference call on his cell. The date was December 21, 1996.
Not far away, a Florida couple, John and Alice Martin, were messing around with their police radio scanner and happened to pick up the call as the Republicans were talking about how to spin Gingrich’s ethics charge. Being Democrats who followed politics, they realized whom they were hearing and decided to make a tape for posterity. Then, realizing what they had heard, they decided to tell their congresswoman, Karen L. Thurman. She, in turn, encouraged them to give the tape to McDermott because of his position on the ethics committee .
What the Martins had done—recording a private cell-phone conversation and distributing it to others—was illegal. (Indeed, they were later prosecuted by the Justice Department, pleaded guilty to intercepting private electronic communications, and paid a $500 fine.) But the Martins’ illegal behavior had produced information that was of public importance: a recording of congressmen plotting to get around an agreement with the House ethics committee. To get it out to the public, they turned to their representatives in Congress, and in that sense, this was not all that different a scenario than the common one in which a whistleblower, in violation of the law, makes a copy of a secret government or corporate record and then provides that record to another person, often a journalist, who has the power to make sure the document is widely read.
“I felt people ought to know right now,” McDermott says, explaining why he did what he did next, which was leak the tape to the New York Times and the Atlanta Journal-Constitution.
The story of the tape, which hit the front page of the New York Times on January 10, 1997, proved to be a political sensation, and when it came out that McDermott was behind the leak, Republicans reacted with fury. McDermott, however, believed he had a First Amendment right to leak the contents of the tape, just like the journalists who wrote about it had a right to quote from it; none of them, after all, had participated in the illegal behavior that led to the creation of the tape in the first place. …. Boehner decided, in March of 1998, to file a civil suit against McDermott seeking $10,000 in damages for the disclosure of his private phone call.
It was the first time one congressman had sued another in civil court, and it marked the beginning of a draining legal fight that has gone up and down the federal court system for the last eight years, costing each side well over half a million dollars.

There is more to the story of course. Sanders noted that many members of the news media sided with McDermott regarding the first amendment issues. Sanders goes on to cite a similar case the Supreme Court decided.

“…the Supreme Court’s ruling in a similar 2001 case that, just like McDermott’s, involved a damning audiotape that had been made by illegally intercepting a cell-phone conversation. That tape was passed on anonymously to a Pennsylvania radio station, which then broadcast the recording. In its ruling, a majority of the Supreme Court sided with the radio station, writing: “It would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party.”

The PI headline reads McDermott loses appeal, and must pay lawmaker I think this is the wrong headline. A more accurate one would be someting like “Jim McDermott Denied Hearing before Supreme Court because he Belongs to the Wrong Political Party” or ” Supreme Court Sides with Appeals Court Against First Amendment Rights” or Supreme Court Supports Secrecy over Public’s Right to Know”

You can read more about the case and McDermott’s legal arguments by going to “The Jim McDermott Legal Expense Trust” There is also a link here that will allow you to make a contribution to help pay McDermott’s legal fees incurred in his First Amendment defense.

The 9th Circuit Court of Appeals in San Francisco last week slapped slapped George Bush’s hand again. They rejected his wimpy do almost nothing fuel efficiency standards for light trucks and SUV’s. See New York Times article. Bush’s proposal was to increase the average fuel efficiency for light trucks from 22.5 mpg to 23.5 mpg by 2010. The standard for cars is 27.5 mpg.

The Court ruled that the Transportation Department did not take into account the economic costs of not reducing greenhouse gas emissions.

Washington State was not a party to the suit although it certainly had a chance to join. Washington State’s Attorney General Rob McKenna chose not to participate.

Eleven states , 2 cities and 4 environmental organizations had filed the original suit. Washington State was absent from the list of states that were part of the suit. California, Connecticut, Maine, Massachusetts, New Jersey, New York, Rhode Island, Vermont, New Mexico, Oregon and Minnesota and New York City and the District of Columbia were parties to the suit.

Washington state’s absence from this suit is not surprising. Rob McKenna is a Republican. George Bush is a Republican. McKenna‘s loyalties are first to his party, not our state. In fact all of the states that joined the lawsuit had Democratic Attorney Generals. No Republican Attorney General saw fit to join the lawsuit to try to curb global warming.

Rob McKenna will of course protest, saying wait a minute, Washington state was a party to another significant Supreme Court decision in April 2007 that said the EPA had the authority to regulate greenhouse gases. In fact he even put out a press release after it was decided praising the decision. The truth, however, is that McKenna did not originate that suit. It was Washington’s current Governor, Christine Gregoire, when she was Washington State’s Attorney General, who joined the lawsuit when it was filed in 2003.

I have previously written about McKenna‘s lack of enthusiasm for bucking his fellow Republican George Bush by his lack of tackling the global warming issue. I wrote the Attorney General asking why he was not involved in the lawsuit last year and urged that Washington state join the lawsuit. I think the year and a half that has passed since then has significantly shown the importance of our needing to act to curb global warming and the need for significant and meaningful action like drastically increasing fuel efficiency standards for cars and trucks.

You can read my press release here – Press Release – “Attorney General Rob McKenna Should Join Federal Lawsuit on Vehicle Fuel Efficiency Standards

see also:
MajorityRulesBlog Missing in Action – Washington State Attorney General Rob McKenna
MajorityRulesBlogUpdate on Washington Attorney General Rob McKenna Asleep at the Wheel
MajorityRulesBlog 2nd Update – Still Waiting to Hear from Attorney General Rob McKenna
MajorityRules Blog 3rd Update –Washington State Attorney General McKenna Should Join Car Fuel Efficiency Lawsuit

Here is the response from McKenna‘s office and my comments – “Washington State Attorney General’s Office Responds to Not Joining Other State’s on Fuel Efficiency Lawsuit”

Rob McKenna missed his chance to be part of the solution rather than stick his head in the sand. McKenna is running again for Attorney General of Washington. Inaction on critical issues when the opportunity arises like it did for McKenna to join the Federal lawsuit and represent Washington state’s interests are legitimate issues that one can use to evaluate and judge whether a public official is representing the voters interests or not.

Global warming is a significant issue affecting the future of our state. The public has a right to question the inaction of public officials in addressing this problem. On this one McKenna came up missing in action.

In a bizarre divided opinion the US Supreme Court has given its O.K. to President Bush to spend tax dollars to advocate for God’s way of doing things. Which God of course depends only on the beliefs of the President. In their logic of law inspired by divine wisdom I guess, they ignored a legal precedent from a 1968 case which said taxpayer dollars spent by Congress could be challenged if taxpayers believed they promoted religion.

The Court tossed out a legal challenge to Bush’s taxpayer funded “Office of Faith-based and Community Initiatives.” The vote was 5 to 4. So continues the rightward swing of the Supreme Court as Bush’s legacy of appointments to the US Supreme Court gains conservative momentum.

Voters who think who is President doesn’t matter only need to watch the steady drift of the Court rightward and read the bizarre interpretations of the old boy network of corporate right wing conservatism that controls the majority now on the Court. Let’s hear it now for the wisdom of Ralph Nader that there was no difference between Gore and Bush.

Washington Post Bench Conference blogger Andrew Cohen says it very clearly:

Indeed, so strong is the conservative bent to the court right now that even when its right-facing Justices did not agree on the legal reasons or rationale for their rulings– which was the case in the religion case noted above– they are able to agree to promote government sponsorship of religion and to block taxpayer efforts to prevent it. In other words, there is room for dissent even among the Court’s working majority– a bad sign for liberal judges, lawyers and litigants in the months and years to come.

People can and do and will disagree about the “correctness” of these rulings– but no one should have any doubt now that President George W. Bush’s campaign promise– to take the Supreme Court to the right– has been fulfilled. That question is no longer open to argument and you need only to take a few minutes to read today’s rulings to understand why.”

NY Times 6/26/2007 “Justices Reject Suit on Federal Money for Faith-based Office
Washington Post 6/26/2007 “Justices Quash Suit over Funds for Faith Based Groups

Washington State in 2003  joined with a coalition of other state attorneys general to sue the Bush Administration for its failure to regulate CO2 emissions from automobiles and other sources of CO2 contributing to global warming. The case was heard Wednesday before the US Supreme Court.

The question now is whether the Supreme Court will respond to the almost uniform scientific consensus that global warming is real and agree that the US Government has the authority to act, and needs to act to act now to protect the public, or whether it will instead respond to the political whims of the Bush corporate mantra and dump cold water on the EPA’s doing anything.

Democratic Washington State Attorney General Christine Gregoire, speaking in 2003, noted that “Washington State has shown its commitment by investing heavily in clean sources of power and strong pollution controls to provide the healthiest air possible for our citizens, crops and businesses. We need to see the same kind of commitment on a national level.” Christine Gregoire is now the Governor of Washington State.

Earlier this year Rob McKenna, the current Republican Attorney General for Washington State choose not to participate in a similar lawsuit with most of the same plaintiffs challenging the EPA’s not acting to raise Federal vehicle fuel efficiency standards. I guess he must have consulted with Republican Congressman Dave Reichert first. Reichert in his campaign for re-election this year said he didn’t think global warming had been proved. I’ll bet neither of them have gone to see Al Gore’s documentary film “An Inconvenient Truth“.

The current case now before the Supreme Court was the one started by then AG Gregoire.

According to the Environmental News Service

The (current)case originated in 1999, when various environmental groups filed an administrative rulemaking petition requesting that EPA set motor vehicle emission standards for four greenhouse gases, including carbon dioxide. In August of 2003, the EPA denied the pending rulemaking petition. At that time, EPA also stated that, as a policy matter, it would not set motor vehicle emission standards even if it had authority. In October of 2003, this decision as challenged. On July 15, 2005, the federal appeals court for the D.C. Circuit voted 2-1 to let the EPA’s current position on greenhouse gas pollutants stand. In August, the full bench of the appeals court for the D.C. Circuit was asked to hear the case. The court denied that request with a 4-3 decision, paving the way for the Supreme Court appeal.”

Nina Totenberg of NPR notes that

The first question facing the justices is whether carbon dioxide is a pollutant at all. The administration claims it isn’t, and is backed by the auto and energy industries in that claim..

“We’re talking about carbon dioxide,” says former Solicitor General Ted Olson, who is representing the Alliance of Automobile Manufacturers. “It’s necessary for life. A pollutant is something that fouls the air, a contaminant. No EPA administrator in history has ever considered carbon dioxide a pollutant.”

We’ve commented on this argument before – “CO2 is life.” That’s why we all love to be in a room full of CO2. Who needs O2. Trace elements are also important to life. So are vitamins. But its all a matter of proportion. Just like injesting too many of some vitamins can be fatal, so can too much CO2 in the atmosphere – which contributes to global warming.

I guess this argument of CO2 is life made sense to Bush. That’s probably why he didn’t respond very quickly to Hurricane Katrina. I guess someone told him water is necessary for life. If a little is good for you, more is better. So what was the matter with those people in New Orleans? Didn’t they know that H2O is life?

Then Olson says it also a question of standing or the right to bring a case. Saying that just because Massachusetts will lose shoreline because of global warming that is not an adequate reason to bring suit.

Again from Totenberg of NPR

The states contend that they are suffering significant damage because of the EPA’s failure to act. They claim they are losing shoreline because of melting ice and rising oceans, that floods and storms are more severe, causing greater damage, and that controlling smog is getting more difficult. And the Western states say their snow pack is melting, jeopardizing their water supply.

Olson says that sort of generalized damage is not adequate to make the legal case: “If it does exist, it is damage to humanity in general, not to Massachusetts,” he says. “Courts need concrete particularized cases before they can constitutionally render a decision. Otherwise, anybody with a grievance can say ‘Gee, the ocean’s too high this year. I think we should have a lawsuit against the EPA.'”

Of course these are these same people that refuse to join with other nations to reduce CO2 pollution. They refuse to sign the Kyoto agreement or seriously explore and work for other international solutions.

These are the Bush people. The Democrats winning control of the House and the Senate is only a first step to bringing sanity back to public policy because the EPA is still run by Bush. And Bush with his Supreme Court appointments has swung the US Supreme Court further to the right. And it seems that many on the right really don’t understand what is happening.

USA Today said

“Chief Justice John Roberts and fellow conservatives questioned whether states’ environmental problems truly would be helped if the U.S. government changed its decision not to regulate emissions from new cars and trucks.
Roberts suggested that economic development in China, for example, could produce pollution that would offset whatever “marginal benefit” states hope to win through federal limits on tailpipe emissions. Justice Antonin Scalia also seemed skeptical about warnings of looming harm from so-called greenhouse gases, asking, “When is the predicted cataclysm?”

It is wonderful to have such forward insightful and forward thinking people on the US Supreme Court. I guess if we left it to Scalia to have building codes to protect buildings from falling down during an earthquake we would have no earthquake proof buildings because we can’t predict when the next earthquake will come.

Likewise, because any measure we take is only part of fixing the problem, we should do nothing? But what is nothing? The Seattle Times says that “Together, US power plants and vehicles account for some 15% of global CO2 emissions.

As the NY Times aptly argues, the case is rather simple.

“A plain reading of the Clean Air Act shows that the states are right. The act says that the E.P.A.”shall” set standards for “any air pollutant” that in its judgment causes or contributes to air pollution that “may reasonably be anticipated to endanger public health or welfare.” The word “welfare,” the law says, includes “climate” and “weather.” The E.P.A. makes an array of specious arguments about why the act does not mean what it expressly says. But it has no right to refuse to do what Congress said it “shall” do

The Seattle Times in a lengthy article last year entitled “The Truth about Global Warming”summed up part of the reality.

“…atmospheric levels of carbon dioxide are increasing at a rate that precisely tracks man’s automotive and industrial emissions.
“The process is 1,000 times faster than nature can do it,” Battisti said. Climate reconstructions show that average global temperatures for the past 2 million years have never been more than 2 to 4 degrees higher than now. That means if greenhouse emissions continued unchecked, temperatures would likely be higher by the end of the century than any time since the human species evolved.”

Why is there still a controversy? In the Seattle Times article Eric Steig of the University of Washington says that

“…a handful of skeptics has dominated public debate.””Many of us have felt our voices are drowned out by the very well-funded industry viewpoint.”
He and several colleagues set out this year to bridge the gap between science and popular perception with a Web log called
RealClimate.org. Researchers communicate directly with the public and debunk what they see as misinformation and misconceptions. By giving equal coverage to skeptics on the fringe of legitimate science, journalists fuel the perception that the field is racked with disagreement.
You get the impression it’s 50-50, when it’s really 99-to-1,” Steig said. Over the past decade, coal and oil interests have funneled more than $1 million to about a dozen individual global-warming skeptics as part of an effort to “reposition global warming as theory rather than fact,” according to industry memos first uncovered by former Boston Globe journalist Ross Gelbspan.
From 2001 to 2003, Exxon Mobile donated more than $6.5 million to organizations that attack mainstream climate science and oppose greenhouse-gas controls. These think tanks and advocacy groups issue reports, sponsor briefings and maintain Web sites that reach a far wider audience than scholarly climate journals.”

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