MARK KARLIN, EDITOR OF BUZZFLASH AT TRUTHOUT
It's easy enough to be a journalist, or an advocate for democracy, and write about how money is destroying the electoral process. That can be done without risk of being arrested and tossed into jail.
But a group called 99Rise, with the slogan "together we rise," is dedicated to reversing the Supreme Court decisions and congressional laws that allow for a few people with big money to manufacture the outcome of elections, by putting themselves on the line.
According to an April 1 news release from 99Rise sent via email to the media,
Five members of the grassroots organization 99Rise disrupted the nation's highest Court this morning, issuing a series of statements protesting recent court rulings that facilitate enormous increases in campaign spending by a tiny fraction the wealthiest 1%. Protestors rose one by one to deliver their statements to the Court, demanding they "Reverse McCutcheon and overturn Citizens United," before raising their index finger in the air, a gesture signifying "one person, one vote" political equality. They were detained and arrested by court security.
"The Supreme Court is deeply complicit in the corruption of our democracy," said Belinda Rodriguez, who participated in protest. "Their McCutcheon and Citizens United rulings have allowed corporations and billionaires to essentially buy our elections with unlimited sums of campaign cash, silencing the vast majority of voters. We're here to send a message that the American people won't stand for it."
This is not an April's Fool's joke; these are real people who are being swept up into the mass-incarceration system because they feel strongly that a robust democracy - not a sham democracy dictated by plutocrats - must become the norm in the USA.
Yahoo News reported on the protest:
Protesters disrupted U.S. Supreme Court proceedings for the third time in just over a year on Wednesday, with several people shouting out before the nine justices heard oral arguments in a bankruptcy case.
The protesters criticized two court rulings that pared back campaign finance restrictions.
Most readers are familiar with the Citizens United decision. The second decision being denounced today was McCutcheon v. FEC, which according to the National Constitution Center "eventually came down on April 2, 2014, and it overturned limits on aggregate federal campaign contributions."
99Rise describes its growing call-to-action:
[It is] a social movement-building organization waging nonviolent struggle to get money out of politics and reclaim democracy for all Americans. Their previous Supreme Court disruptions mark the first time video has ever been captured from inside the chamber.
Civil disobedience on behalf of democracy and justice has waxed and waned in the US. One can point to the Civil Right Moment of the '50s and '60s as a sustained success, which built up steam – along with many arrests - pretty much continuously for nearly 20 years.
Of course, sustained civil disobedience requires a substantial number of people willing to be arrested and jailed. As with the Civil Rights Movement, as with Gandhi's campaign for independence in India, when five people commit nonviolent protests and are stopped, ten more need to take their place - and then hundreds and then thousands. And in the age of mass incarceration, real questions arise as to whether it makes sense to ask large numbers of people (particularly people of color) to voluntarily enter the brutal criminal legal system.
Nevertheless, the five members of 99 Rise who were arrested today are to be applauded - for the courage of their convictions and the strength of their growing movement.
is it an 'error' to claim that corporations are people with religious beliefs OR, is it total corruption & betrayal of everything American by the highest court ?
Protest at the Supreme Court. Only problem? Few reporters were there to see it.
By Al Kamen
Attendees at a rally in January calling for an end to corporate money in politics on the fifth anniversary of the Supreme Court’s Citizens United decision, at Lafayette Square near the White House. (Drew Angerer/Getty Images)
Timing is critical if you want to have a really, really good demonstration.
Take Wednesday, when five protesters were arrested inside the Supreme Court after they disrupted the proceedings by shouting their disapproval of the court’s campaign finance rulings.
As the Justices were gathering at the bench to begin the session, the group began shouting in the back of the courtroom: “One person, one vote! Overrule Citizens United!” our pal and veteran Supreme Court reporter Lyle Denniston posted on SCOTUSblog.
Chief Justice John G. Roberts Jr. wryly remarked: “You wouldn’t think a bankruptcy case would attract such attention.”
But as the shouting continued, Roberts said, “Oh, please!” And he warned them they could face a criminal contempt charge. Five demonstrators were hustled out, and the court proceeded with the session.
The demonstration by the group, 99Rise, was timed for the first anniversary of another of the court’s campaign finance rulings, April 2, 2014, which struck down overall campaign contribution limits. It was the group’s second demonstration this year.
But the court was not going to be in session Thursday, April 2, so the protesters came Wednesday. Unfortunately, most of the regular Supreme Court reporters weren’t there, because, for very good reasons, the bankruptcy case was not particularly newsworthy.
Here’s the question presented in Harris v. Viegelahn: “When a debtor in good faith converts a bankruptcy case to Chapter 7 after confirmation of a Chapter 13 plan, are undistributed funds held by the Chapter 13 trustee refunded to the debtor (as the Third Circuit held in In re Michael, 699 F.3d 305 (2012) or distributed to creditors (as the Fifth Circuit held below)?”
See what we mean?
Wednesday’s disruption hardly compares with the one in 1983 when porn publisher Larry Flynt started screaming truly vile obscenities at the justices from his gold-plated wheelchair in the back of the courtroom.
“- – – – this court. . . . You denied me the counsel of my choice,” Flynt said, as we reported at the time. Flynt “shouted at the startled justices as he opened a white jacket that had concealed a black T-shirt emblazoned with a similarly obscene attack on the court.”
Al Kamen, an award-winning columnist on the national staff of The Washington Post, created the “In the Loop” column in 1993.
During the course of American history, wrongful events have occurred and certain Americans have stood up and spoken out against these wrongs: Tom Paine, Edward R. Murrow, Daniel Ellsberg. Vincent Bugliosi takes his place in this special pantheon of patriots with his powerful, brilliant, and courageous expose of crime by the highest court in the land. When an article he wrote on this topic appeared in The Nation magazine in February 2001, it drew the largest outpouring of letters and e-mail in the magazine's 136-year history, tapping a deep reservoir of outrage. The original article is now expanded, amended, and backed by amplifications, endnotes, and the relevant Supreme Court documents.
“The Betrayal of America”
Prosecutor Vincent Bugliosi accuses the Supreme Court's conservative majority of criminal conduct bordering on treason.
by CHARLES TAYLOR
The toughest, most uncompromising words I’ve read anywhere lately are in the spring issue of Dissent. In an issue devoted to strategies for dealing with the coming four years of Dubya rule, Philip Green confesses to having no appetite for such strategies. “What attitude,” he asks, “should the inhabitants of a conquered province have toward their conquerors? In Vichy France, for example, I doubt that the left cared in the slightest about Marshal Pétain’s views on old-age pensions, labor unions, soil erosion in the Dordogne, the rights of Algerian immigrants or any similar issues of ‘public policy’ that might have existed at the time.”
What else can explain the lack of what Green calls “any will to resist or defy” the unprecedented outrage of the Supreme Court stealing an election? The lack of such a will in the Democratic Party (with the notable exception of the Congressional Black Caucus) is another story, one that I’ll return to. For the rest of us 50 million Americans — whose votes, we were told by the highest court in the land, simply didn’t count — it can’t be simple apathy. How do you oppose the policies of a presidential administration when the U.S. is operating without a legitimate president? How do you participate in a democracy when Rehnquist and the four other thugs on his court — Scalia, Thomas, O’Connor and Kennedy — have used the democratic system to nullify the very idea of democracy?
We may, as a nation, have sprung from a revolution, but no matter what fairy tales the hard left is now telling, we are not a revolutionary country. So what do we do? Vincent Bugliosi, the author and prosecutor most famous for putting Charles Manson behind bars, argues that knowledge is power in his slim, trenchant time bomb of a book, “The Betrayal of America.” By clearly understanding what the Supreme Court did, we can remove the cloak of respect and legitimacy that shields its actions from protest. Bugliosi’s book started out as an article in the Nation last fall, and it received a greater response from readers than any other piece the magazine had ever published. It has been expanded here with a preface by the Nation’s editors, forewords by Molly Ivins and Gerry Spence, an introduction by Bugliosi, a series of 20 amplifications on various points made in the article and a summary of the legal proceedings that climaxed in the Supreme Court’s Dec. 12 ruling in Bush vs. Gore.
The article’s original title reveals Bugliosi’s intent: “None Dare Call It Treason.” Always grounded in the law but using the harshest language he can muster, hectoring and ridiculing where he deems it necessary, Bugliosi outlines his case. He argues that in stopping the Florida recount and effectively handing the election to George W. Bush (which was clearly, he claims, their intent), the five conservative justices engaged in criminal conduct bordering on treason. Bugliosi claims that the only reason their action isn’t legally treason is that Congress “never dreamed of enacting a statute making it a crime to steal a presidential election.”
Bugliosi sets about proving his case with a lethal focus. Part of that focus requires dispensing with what he considers irrelevancies, chief among them the question of whether it was Bush or Gore who actually got more votes in Florida. Whoever won the state, Bugliosi argues, has no bearing on the legal, ethical and moral culpability of the justices’ actions.
Bugliosi proceeds with a point-by-point demolition of the court’s reasoning that’s too complex to summarize here. His most trenchant assertion, however, is a refutation of the court’s argument that it was necessary to stop the recount because different standards of counting undervotes represented a violation of the right to equal protection guaranteed by the 14th Amendment (the same equal protection grounds, by the way, that had been rejected by the court in Bush’s previous petition). It’s absurd, Bugliosi argues, to claim you are protecting the right to vote when in order to do so you make sure that 60,000 validly cast votes do not count.
But as strong as Bugliosi’s arguments are here, and I think they’re unassailable, it’s the ferocity of his language and the lucidity of his thought that give the book its force. If Bugliosi’s respect for the law is paramount, it’s second only to his contempt for the servants who fail that master. The commentators and legal scholars who have called the court’s decision an “outrage” and “openly political” (which Bugliosi brilliantly differentiates from “ideological”) don’t go far enough. Bugliosi knows that the respect accorded an office is meaningless unless it is held by people who maintain the standards of that office, and he cuts right through the obsequiousness that is customary when talking about the Supreme Court. “Though the five justices clearly are criminals,” Bugliosi writes, “no one is treating them that way.”
That’s the kind of directness that makes Bugliosi’s book a classic in the literature of political protest — his absolute refusal to be deluded by how things should be or to refrain from seeing things as they are. Though his arguments are grounded in law, reason and common sense, this willingness to speak the truth in the current atmosphere risks making Bugliosi (a political moderate) look extreme. He is extreme in the context of a media that routinely lies whenever it claims that Bush won the election. It was disgusting to watch Bush’s coronation (I won’t dignify it by calling it an inauguration) and hear every network anchor spouting the platitudes they dust off every four years about the peaceful transfer of power when nothing of the sort had occurred.
Toward the end of his original article, Bugliosi notes that the justices cannot be prosecuted for this travesty, and it’s a fantasy to imagine they could ever be impeached. The feeling of helplessness that has since overcome some of us is understandable. But what about the timidity that stymies the Democrats? One of the things that most appalls Bugliosi is that, with the exception of some legal scholars, he has heard no conservative condemn the court’s hijacking of the election. The ruthless installation of Bush in the White House serves the ends of the hard right (though it may well appall the principled conservatives who’ve been made to feel like pariahs in the Republican Party), and since for the hard right politics is about self-interest (just as it is for the Nader partisans), it can live with the court’s duplicity.
The worst thing, however, has been watching the Democrats’ response to the court’s decision and their interactions with their Republican colleagues. They resemble Alec Guinness’ British colonel in “The Bridge on the River Kwai,” prissily insisting that war be conducted according to the rules of gentlemen. Or like Joan Allen’s milquetoast vice presidential nominee in “The Contender,” refusing to use the proof that the allegations against her are a sham because that would mean descending to her opponents’ level.
Democrats refuse to understand the nature of their opponent. President Clinton’s impeachment should have alerted them that they are dealing with people who are willing to flout the will and rule of the electorate to achieve their ends. The Supreme Court’s decision is the logical culmination of that arrogance. But Democrats continue to insist on observing the protocol of honor and bipartisan cooperation, concepts that are useless against a naked exercise of power. I’m not suggesting that Democrats resort to smears or illegal means to thwart the Bush administration. But I am suggesting that sometimes taking the high road only makes you a more virtuous species of saphead.
The public may complain about partisanship and attack politics, but deciding that you are too principled to respond to political attacks only leaves you more vulnerable. And politics is about getting things done or it’s about nothing. (This may be why the Democratic presidents who have best understood that, LBJ and Clinton, have been met with distaste even within their own party.) Gaining control of the Senate will do the Democrats no good if they have no stomach for ruthlessness — a ruthlessness, I should add, that must always remain within the rule of law. And that ruthlessness should start with a blunt insistence on the facts: that Gore won the election, and that Bush cannot claim to have been elected by all the people when he is only president because the wishes of 50 million voters were rendered moot by thievery on the part of the Supreme Court. Vincent Bugliosi has spoken the truth. It will not, for the next three-and-a-half years, set us free. But we should at least make good use of the chains the Supreme Court has left us in, rattling them loud enough to remind the bastards that we’re not going anywhere.
Charles Taylor is a columnist for the Newark Star-Ledger.
To Put It Simply: Supreme Court Decides That Money Will Buy Every Election From Here On Out
Campaign fundraising is a really complicated issue.
Or at least, it appears to be very complicated.
Somehow, what seems to be a very simple concept — that money is the dirty part of politics and it probably should have the most oversight and regulation — has gotten really confusing, to the point that all rhetoric has resorted to the equivalent of political gaslighting.
And now the slope has been doused in olive oil…
In a 5-4 decision, with the majority opinion written by Chief Justice John Roberts, the Supreme Court ruled that limits on the total amount of money donors can give to all candidates, committees, and political parties are unconstitutional; a ruling that the New York Times dubbed “a sequel of sorts to Citizens United, the 2010 decision that struck down limits on independent campaign spending by corporations and unions.”
So what does this mean?
To put it this way, and to quote The Huffington Post‘s Paul Blumenthal, “A single donor can now give more than $5 million in individually limited contributions to every House candidate, every Senate candidate, every state party committee, every national party committee and every leadership PAC connected to one political party.”
Ironically, it’s really that simple.
If it’s any consolation, the ruling doesn’t affect the $2,600 limit on how much a donor can give to a federal candidate in each primary and general election or the $32,400 limit that can go to a national party committee. Those limits, which guard against corruption, “are at the root of the federal law.”
Are you now a little confused as to how this all could happen?
Well, the conservative majority of judges decided that the spending of money was actually a form of speech and thus was protected by the First Amendment (insert “money talks” joke).
And now with that little bit of magic, Mitch McConnell can seem patriotic when he decries, “Let me be clear for all those who would criticize the decision: It does not permit one more dime to be given to an individual candidate or a party. It just respects the constitutional rights of individuals to decide how many to support.”
See, it’s been simplified even more now; it’s just a simple matter of protecting free speech.
It’s complicated to explain how we got here, but now we have a new simple truth; it just happens to be an insulting one that bet on the limits of simple minds. But it’s easy to sell.
And it should infuriate those that see it for what it is.
Justice Stephen Breyer was so outraged that he pulled the rarely used “read my dissent from the bench” move so that it was sure to be heard:
“Taken together with [Citizens United], today’s decision eviscerates our nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”
And if that all sounds too complicated, he then put it simply…
“If the court in Citizens United opened a door, today’s decision may well open a floodgate.”
Scalia’s factual error not only one in recent Supreme Court decisions
by Scott Bomboy
The legal press is up in arms over a factual error made by Justice Antonin Scalia in a Supreme Court decision this week. But Scalia isn’t alone among justices who’ve been corrected by academics and even a few bloggers.
The miscue didn’t get by Harvard law professor Richard J. Lazarus, who took the step of formally writing the Supreme Court to correct the errors after Tuesday’s decision. Fellow law professors Jon Adler and Dan Farber also discussed the mistaken passage online, which led to more coverage from writers on the Supreme Court beat.
On page 12 of Scalia’s EPA v. Homer dissent, he wrote the following:
“This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting NAAQS.”
Here is the plain-English interpretation: Scalia claimed the EPA, for a second time, wanted the Supreme Court to consider the cost-effectiveness of emission controls in figuring how much pollution a state must reduce. The first time was when the Court dealt with a similar EPA-led argument in 2001, he said.
But as Lazarus, Adler, and Farber pointed out, the EPA opposed this plan in 2001, and didn’t support it. It was the trucking industry that pushed for the plan in 2001.
“The worst part of it is that Scalia should know this because the author of the Supreme Court’s decision in Whitman v. American Trucking Assns was none other than Scalia,” Adler said on the Volokh Conspiracy blog.
Another blog, Talking Points Memo, had quotes from Lazarus about the mistake.
“This is a topic I know fair amount about, and I do not know of any other instance when a Justice has mischaracterized one of his own prior opinions, let alone in such a loud fashion and when he is otherwise criticizing others for their blunders,” said Lazarus. “I strongly doubt it has ever happened before.”
On Wednesday morning, the Supreme Court posted a revised version of Scalia’s dissent with the mistaken passage replaced with a more-general description, along with a new headline preceding the paragraph. The mistaken passage didn’t receive the honor of a footnote or other annotation.
And that is line with current procedures at the Court, since Supreme Court opinions contain notices that they are subject to revision before appearing in a compendium called the United States Reports, and that alert readers like Lazarus can notify a court official “of any typographical or other formal errors.”
(Editor’s note: The older incorrect version of the opinion was still available in Google search as of Friday.)
Scalia himself, in a October 2013 interview with New York Magazine, likely identified part of the reason for the mistake, when he spoke about how he picked his law clerks.
“I like to have one of the four clerks whose predispositions are quite the opposite of mine—who are social liberals rather than social conservatives. That kind of clerk will always be looking for the chinks in my armor, for the mistakes I’ve made in my opinion. That’s what clerks are for—to make sure I don’t make mistakes,” he said.
NPR’s Nina Totenberg said Scalia is open about having his clerks write the first drafts of his opinions before he adds his own unique take and writing style.
“So, either the first-draft clerk got it wrong and Scalia didn’t catch it, or the justice got it wrong and the law clerk didn’t catch it. Either way, since clerks are first and foremost supposed to be a justice’s backstop, somebody is — to put it in delicate terms — likely having anatomical changes made to his or her body,” Totenberg said.
In Scalia’s defense, he’s not the only justice to suffer the fact-checking gaze of academics and the occasional blogger.
In 2008, a military blogger pointed out that a majority opinion written by Justice Anthony Kennedy in the Kennedy v. Louisiana ruling about the death penalty in cases of child rape had a big factual error.
Justice Kennedy stated that a child rapist could face the death penalty in just six states — and not in any of the 30 other states that had capital punishment, and could not face death under the jurisdiction of the federal government, too.
Dwight Sullivan, a colonel in the Marine Corps Reserve, refuted that claim in a blog post. and pointed out that Congress did enact such a penalty two years prior to Kennedy’s ruling, pertaining to military legal cases. (The Supreme Court later declined to rehear the Kennedy v. Louisiana case.)
Another factual error in a Kennedy opinion came in a 2010 decision called Graham v. Florida, when the Court declared as unconstitutional giving juveniles life without parole for non-homicide crimes.
Kennedy said in his opinion that there were six convicts in the federal prison system serving life without parole sentences for juvenile non-homicide crimes.
In this situation, Acting Solicitor General Neal Katyal wrote in a letter that some information cited by Kennedy in the Graham v. Florida decision, was supplied to the Court by a federal official without Katyal’s knowledge, and Kennedy’s statement was inaccurate, because on further review the Solicitor General found no evidence such sentencing.
And last year, in a complicated technical decision about human gene patents, a majority opinion written by Justice Clarence Thomas had at least one error that has been corrected by the Court – in the opinion’s opening paragraph.
The phrase said that, “Scientists can extract DNA from cells to isolate specific segments for study. They can also synthetically create exons-only strands of nucleotides known as composite DNA (cDNA).”
The problem is that “composite DNA” doesn’t exist. The accurate term is “complementary DNA.” The mistake was pointed out online by several scientists. And the current version of the Myriad Genetics decision on the Court’s website has the corrected version.
“The definition is correct, the terminology, not,” said Ricki Lewis, a blogger with a PhD in genetics, at the time.
Forbes contributor Steven Salzberg, who is a professor at Johns Hopkins University School of Medicine, pointed out other issues with the Myriad Genetics opinion. In addition to the “complementary DNA” error, Salzberg believed there were a total of three errors about molecular biology in the opinion’s opening paragraph.
“I cannot pretend to know who they got to do their biology background research, but any genetics graduate student could have done far better,” he said.
Scott Bomboy is the editor in chief of the National Constitution Center.
in truth, they make a lot of 'errors' at the Supreme Court...
The Supreme Court Just Made It Easier for Big Business to Screw the Little Guy
The far-reaching consequences of the American Express v. Italian Colors decision
By Stephanie Mencimer
In a little-known case called American Express v. Italian Colors Restaurant, the Supreme Court today issued yet another decision making it easier for big corporations to use their market power to screw over consumers and small businesses. Thursday's 5-3 decision affirmed the right of big corporations to use mandatory arbitration clauses in contracts to force small businesses to challenge monopolistic practices in private arbitration rather than through class actions in court. The case shows once again that the conservative majority, led by Chief Justice John Roberts, has no problem with judicial activism when it comes to bolstering corporate power.
Here's the background on this decision:
The case, Italian Colors v. American Express, was brought by a California Italian restaurant and a group of other small businesses that tried to sue the credit card behemoth for antitrust violations. They allege Amex used its monopoly power to force them to accept its bank-issued knock-off credit cards as a condition of taking regular, more elite American Express cards—and then charging them 30 percent higher fees for the privilege.
The small businesses’ claims were pretty small individually, not more than around $5,000 per shop. So, to make their case worth enough for a lawyer to take it, they banded together to file a class action on behalf of all small businesses affected by the practice. In response, Amex invoked the small print in its contract with them: a clause that not only banned the companies from suing individually but also prevented them from bringing a class action. Instead, Amex insisted the contract required each little businesses to submit to the decision of a private arbitrator paid by Amex, and individually press their claims. (Arbitration is heavily stacked in favor of the big companies, as you can read more about here and here.)
The restaurants estimated, with good evidence, that because of the market research required to press an antitrust case, arbitration would cost each of them almost $1 million to collect a possible maximum of $38,000, making it impossible to bring their claims at all. After a lot of litigation, the little guys prevailed in the 2nd Circuit Court of Appeals, which found that the arbitration clause was unconscionable because it prevented the plaintiffs from having their claims heard in any forum. The court said the arbitration contract should be invalidated and that the class action should go forward in a regular courtroom. (Sonia Sotomayor sat on one of the appeals before heading to the high court and is recusing herself from the case as a result.)
The 2nd Circuit repeatedly voted in favor of the merchants. It heard the case at least three times, including once after the high court reversed its original decision in favor of the restaurants, and it seemed fairly united in its belief that the Amex contract was unenforceable. But the Roberts Court has been no friend of small businesses or consumers, particularly those seeking to bring class actions against big companies. The court's conservative majority has made class action litigation much harder to bring, mostly notably in 2011 when it struck down a huge sex discrimination case brought by 1.5 million women working at Walmart.
That's one reason public interest lawyers have sounded the alarm about the Amex case for a year, noting that, given the court's current makeup, the case had potentially awful implications for anyone ripped off while using a credit card or cellphone and for small businesses trying to fend off corporate monopolies.
In an amicus brief submitted in this case on the side of the small businesses, lawyers for AARP, Public Justice, and the American Association for Justice warned that if the court sided with Amex, "statutes intended by Congress to protect weaker parties against stronger parties will essentially be gutted. Small businesses might as well move to a different country where they no longer enjoy the protection of the antitrust laws. At the whim of an employer, workers could be required to prospectively waive their Title VII [anti-discrimination] rights. Consumer protection laws such as the Truth in Lending Act could be silently, but inescapably, repealed by corporations with the stroke of a pen.”
Indeed, if the court ruled that Amex could use an arbitration clause in a contract with a much less powerful party to escape punishment under the Sherman Antitrust Act, there's no reason why a big company couldn't create contracts that prevent people from filing sex discrimination, consumer fraud, or other similar claims in any venue. Laws that Congress passed to protect the public could simply be voided through artfully written arbitration clauses that create expensive hurdles to pressing a claim.
Justice Antonin Scalia, who wrote the majority opinion in the Amex case, seems to believe that this isn't a problem. He said that the law doesn't entitle every potential plaintiff a cheap route into court, noting that litigation outside arbitration is expensive, too, a fact that can keep people from exercising their legal rights. His argument boils down to this: The Federal Arbitration Act, a 1925 maritime law that the court has broadened to cover just about everything, trumps every other law on the books. So if a big company breaks the law and screws you, but you signed a contract with an arbitration clause giving away your right to sue or bring class action, you don't have a case, even if federal law says you do.
In a concurring opinion, Justice Clarence Thomas invoked the fiction that the contract Italian Colors signed agreeing to arbitrate its claims individually with Amex was voluntary. But anyone who's ever tried to open a bank account knows it's virtually impossible to engage in commerce these days without being forced to sign a contract in which you forego your right to sue the company if it rips you off.
Justice Elena Kagan gets this point. In her biting dissent aimed squarely at Scalia, she called the majority opinion a "betrayal of our precedents and of federal statutes like antitrust laws." She observed that the court would never uphold an arbitration agreement that explicitly banned merchants from bringing an antitrust claim, yet that's effectively what the Amex contract does by compelling merchants to give up the option of class actions in court. She noted that by ignoring several precedents, the majority is providing companies "every incentive to draft their agreements to extract backdoor waivers of statutory rights." That is, they will use contracts to immunize themselves from laws they don't like.
Kagan was blunt: "If the arbitration clause is enforceable, Amex has insulated itself from antitrust liability—even if it has in fact violated the law. The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse. And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad."
STEPHANIE MENCIMER ReporterStephanie Mencimer is a staff reporter in Mother Jones' Washington bureau. For more of her stories, click here.
Publishers Weekly praised Black Mondays: "Unlike Thurgood Marshall's opinion in the foreword that the framers of the Constitution should be blamed for its inequities and compromises involving slavery and women, constitutional authority Joseph asserts that its misinterpretation by Supreme Court justices, rather than the document itself, was responsible for such erroneous decisions as the Dred Scott case, which, he alleges, helped precipitate the Civil War. The case is among what he considers the court's 20 "worst" decisions as selected by legal associations and law professors, either because they reflect poor reasoning or adversely affect the freedom of citizens. The cases and the cited dissents, which make instructive reading, concern freedom of religion, association, speech, right to privacy, equal protection under the law, criminal rights and access to justice. Included are the 1896 Plessy v. Ferguson 'Jim Crow' case, and the WW II internment of citizens of Japanese origin, Georgia sodomy laws, Ralph Ginzburg's obscenity conviction and a June 1987 decision involving an FBI search of a black family in their Minnesota home, which, in the author's view, undercuts the Fourth Amendment guarantee of liberty and privacy."
Quote of the Day: The Supreme Court Just Screwed Us All
Chez Pazienza on April 02, 2014
“Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties.”
— Chief Justice John Roberts in the Supreme Court’s official ruling in McCutcheon v. FEC, which strikes down overall limits on individual campaign contributions
Go back and read that quote a couple of times and really let it sink in. Yes, the naïveté on display — either from Roberts himself or in what he expects from us, the docile masses — truly is that staggering.
What he’s saying here is that a giant barrel of money given to a candidate doesn’t, in and of itself, represent “buying” that candidate — that unless it’s somehow explicitly stated that a campaign donation comes with expectations from the donor, it’s not a form of corruption. This of course completely ignores the reality that a plutocrat drowning his favorite candidates in cash to get them elected makes it entirely unnecessary to have to enter into a verbal or written agreement with those candidates in exchange for all that largesse. The quid pro quo is implied — and that’s what makes the whole deal so fucking insidious.
What the Supreme Court did today further eroded our nation’s practically non-existence campaign finance laws, making it even easier for the super-wealthy to purchase political and legislative authority the same way they’d purchase a new mansion or another yacht. The court has decided that money is a form of speech, that it truly does “talk,” and that it should be afforded all the Constitutional protection you or I do in voicing our (increasingly worthless) opinions on who should lead our country and ostensibly represent us. We still have a say, but with McCutcheon and Citizens United before that, those with outrageous amounts of money now have a much larger say, and if you think those people will be funneling funds toward candidates who want to work for us, the tragic assholes in Steerage Class, you’re out of your mind.
If there was any kind of balance between the wealthy and the poor in this country, or even a robust and expansive middle-class to speak of anymore, today’s sharply divided partisan decision by the high court would still be a devastating blow to a good 97% of America. Considering the state we’re already in when it comes to income and wealth inequality, though, the blow is just about fatal. When money can buy elections with legal sanction from the highest court in the land, nobody’s going to be looking out for you and me because our wants and needs simply don’t fucking matter and we don’t have the cash to pay to get them anyway.
If America wasn’t officially a plutocracy before, it damn sure is now.
we were concerned about corruption in the political system, but thanks to the supreme court, corruption is the political system...
by Vincent Bugliosi
Submitted by The Dubya Report on Wed, 06/20/2001 - 00:00
Reviewed by The Dubya Report staff.
Five Justices of the Supreme Court guilty of treason? This is one of the central assertions of Vincent Bugliosi's provocative commentary on the U.S. Supreme Court's unprecedented intrusion into politics that handed George Bush the presidency. The book is an expansion of an article first written for The Nation magazine. While he admits "No technical crime was committed by the five conservative Justices," he continues that that is "only because no Congress ever dreamed of enacting a statute making it a crime to steal a presidential election." He goes on to argue that while not guilty of treason in the strict sense defined in the Constitution -- the only crime defined there, by the way -- there is little difference between giving aid and comfort to an enemy in time of war, and doing grave and unjustifiable damage to the nation "which the Justices surely did by stealing the office of the presidency for the candidate of their choice."
Bugliosi, the former Los Angeles deputy District Attorney who first came to public attention during his successful prosecution of Charles Manson, has written a scathing critique of the actions of the conservative Supreme Court Justices, O'Connor, Thomas, Rehnquist, Scalia, and Kennedy, in connection with the controversial 2000 election in Florida. He argues essentially that from the moment there was a possibility of Supreme Court involvement in determining the results of the election, the conservative Justices simply resolved to do whatever was necessary to anoint George W. Bush president.
Bugliosi details the significant history of several Justices in the Republican party. Clarence Thomas was a legislative assistant to Republican Senator John Danforth, who sponsored his nomination to the court. Justice O'Connor served three terms as a Republican member of the Arizona legislature and was co-chair of the Arizona committee to elect Richard Nixon president. Justice Kennedy was one of the highest-paid lobbyists in California during the time Ronald Reagan was governor, and worked actively to promote Reagan's anti-tax initiative.
Special vitriol is reserved for Chief Justice Rehnquist, who, Bugliosi points out, at Bush's inauguration was swearing in someone he "made sure would be president," -- an historic, if dubious, first. Bugliosi makes the case that Rehnquist committed perjury during his confirmation hearings in 1971. At the time of the hearings, Newsweek published a 1952 memo from Rehnquist to Justice Robert Jackson, concerning segregation. The memo was written at the time that the court was hearing arguments on the Brown vs. Board of Education case. Brown vs. Board of Education was the landmark civil rights case in which the Supreme Court ultimately ruled that 'separate but equal' facilities were illegal, and that schools should be integrated. Rehnquist's 1952 memo read,
I fully realize that it is an unpopular and unhumanitarian position for which I have been excoriated by liberal colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed.
Plessy v. Ferguson was an 1896 case in which the court held that segregation was legal as long as 'equal' facilities were provided. When Newsweekpublished the Rehnquist memo, Rehnquist wrote Senate Judiciary Committee chairman James Eastland, claiming that the memo held Jackson's views.
Rehnquist was questioned about the memo again in 1986 during his confirmation hearings for Chief Justice. Senator Ted Kennedy asked him, "Do the 'I's' refer to you?" Rehnquist answered, "No, I do not think they do." "You maintain the 'I's' refer, then, to Justice Jackson?" Kennedy continued. "Yes. Obviously something for him to say," Rehnquist said.
Bugliosi argues that Rehnquist knew that being associated with a segregationist position in 1971 would have prevented his appointment to the Supreme Court, so he lied in his letter to Eastland, and committed perjury in 1986. He backs up his assertion by citing
- Language in the memo that indicates Rehnquist was writing his own brief.
- Jackson was a moderate Democrat with no history of racist-leaning positions
- Jackson was known as an orator and writer, so it was unlikely he would have asked Rehnquist (then a first-year law clerk) to write a brief for him.
- Jackson's longtime personal secretary responded to Rehnquist's assertion in 1971 with "shock" saying he had "smeared the reputation of a great justice...."
- A draft of a concurring opinion on Brown v. Board of Education written by Jackson in 1954 was discovered in 1989. In it Jackson writes, "I am convinced that present day conditions require us to strike from our books the doctrine of separate but equal facilities."
- Jackson left his hospital bed on May 17, 1954 against his doctors' orders, to vote with his colleagues on the court to overturn Plessy in the Brown v. Board of Ed. case.
Interestingly, Bugliosi does not make much of the several immediate conflicts of interest on the Court with respect to Bush V. Gore. Justice O'Connor had made public statements that she wanted to retire, but only if a Republican would appoint her successor. Justice Thomas's wife was working on the Bush transition committee. Two of Justice Scalia's sons were working for the Bush campaign. In Bugliosi's view these facts are merely circumstantial evidence of motive, and are overshadowed by the evidence of the court's actions.
The conservative justices' "felonious conduct and state of mind," Bugliosi asserts, are primarily evident in (1) the lack of legal basis for their decision, and (2) the fact that it is, as he says "inconceivable" that they would have ruled in favor of Gore. Much of the book consists in providing supporting arguments for these assertions, including:
- The Florida State Constitution grants the Florida State Supreme Court the power to "provide any relief appropriate" when it finds that a challenge to an election is justified. It was under this provision of law that it had ordered a recount of rejected "undervotes" in disputed counties in Florida. The U.S. Supreme Court, according to its own rules, should only issue a "stay" if an applicant (here Bush) can show that in its absence he will suffer "irreparable harm." In granting the stay of the vote count Justice Scalia wrote that counting the votes would "threaten irreparable harm to petitioner ... by casting a cloud upon what he claims to be the legitimacy of his election." In so doing, Bugliosi argues, Scalia was implying that Bush either had won the election, or had a right to win it, even though the outcome was not then known, and that any vote count showing that Gore had won would "cloud" Bush's presidency.
- The decision reversing the Florida Supreme Court's ordered recount of undervotes was issued as an anonymous per curiam opinion. Per curiamopinions, Bugliosi points out, are usually reserved for unanimous opinions on relatively unimportant matters, or where the court wants to be very brief. Neither condition applied in this instance. Bugliosi writes that perhaps the five justices felt that by not attaching their names to a decision that robbed 50 million citizens of their votes they would some how mitigate their guilt.
- On November 22 Bush lawyers petitioned the U.S. Supreme Court to stop the limited recount that the Florida Supreme Court had permitted to continue beyond the deadline Florida Secretary of State Katherine Harris had originally tried to enforce -- November 17. At that time the court rejected one of their assertions, namely that the lack of a uniform standard of voter intent violated the equal protection clause of the Fourteenth Amendment of the U.S. Constitution. When it finally ruled in favor of Bush on December 12, albeit with regard to a different and more comprehensive recount, the decision was justified on the premise that it violated the equal protection clause of the Fourteenth Amendment. (!)
- Even if one accepts the equal protection argument, what was to prevent the court, as Justices Stevens, Souter, Ginsburg, and Breyer argued in dissenting briefs, from handing the case back to the Florida Supreme Court with instructions to define a uniform standard for determining voter intent? The conservative justices found a solution in a narrow interpretation of a Section 5 of the U.S. Code (3 USC 5) that says that controversy over electors should be resolved "six days prior to the meeting of the Electoral College" The Electoral College was scheduled to meet December 18, and the court was deliberating on December 12 -- therefore, they argued there was no time. Justice Stevens dissenting opinion argues that 3 USC 5 applies to Congress choosing among competing slates of electors, not to state vote recounts. Stevens wrote, "Indeed, in 1960 Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, 1961, well after Title 3 deadlines...." Bugliosi agrees with the comments of Thomas Friedman of the New York Times who wrote, "The five conservative Justices essentially ruled that the sanctity of dates, even meaningless ones, mattered more than the sanctity of votes, even meaningful ones. The Rehnquist Court now has its legacy: In calendars we trust."
- The decision to intervene in internal Florida state affairs runs against the federalist principles that Scalia, Thomas, and Rehnquist would undoubtedly have applied in nearly any other case imaginable. For Bugliosi this is "persuasive circumstantial evidence of their criminal state of mind."
- If absence of uniform standards for determining voter intent truly violated the equal protection provision of the Fourteenth Amendment, nearly every election in the country would be invalid. Recognizing that their decision could not possibly embody a constitutional principle that could be used as a precedent, Bugliosi suggests, the court wrote that its ruling was "limited to the present circumstances." All other cases should rely on prior decisions of the court. This perhaps more than any other action, for Bugliosi, demonstrated that the "felonious five" were interested in granting relief to George W. Bush and no one else.
I told my daughter, Wendy, that what these Justices ended up doing was so monumentally base, so extraordinarily wrong and dishonorable that I wasn't gifted enough as a writer to describe it....I told her that in view of the immense measureless consequence of their act, and the greatness of their sin, it would take a Tolstoy, a Shakespeare, a Hemingway, to give people an illuminating glimpse into the interior of the soul and marrow of these five Justices.
But until the next Shakespeare writes The Tragical History of George II we have Bugliosi's impassioned and thorough chronicle.