August 2009

  • August 6, 2009
    BookTalk
    The Supreme Court and the American Elite
    1789-2008
    By: 
    Lucas A. Powe, Jr., Anne Green Regents Chair, University of Texas Law School and Government Department

    In a sense, The Supreme Court and the American Elite, 1789-2008 is a history of the United States seen through the lens of the Supreme Court. The book's title asserts its thesis, and among elites national politicians rank at the top. Mr. Dooley got it right: the Supreme Court does follow the election returns - especially if the president is lucky enough to get several quick vacancies (like Warren Harding's four in his twenty-nine month presidency). By following the election returns, the Court functions as part of a national political regime and typically issues decisions that advance the constitutional visions of that regime. Thus at the height of the Warren Court, President Lyndon Johnson told historian William Leuchtenburg "that never before have the three independent branches been so productive."

    To be sure, there are counter examples to the Court aiding the dominant regime. We all know that John Marshall was not advancing Thomas Jefferson's agenda. However, while Marshall may have lectured Jefferson in Marbury v. Madison, he never denied Jefferson anything the president wanted - except Jefferson's first-term vice president Aaron Burr's head in a noose. More recently, the New Deal was eviscerated, with ten statutes being held unconstitutional by a bare majority of the Court, in 1935 and 1936. But this was aberrational, and after the 1936 landslide election and the Court-packing plan, the Court never offered further resistance to the New Deal. Of course the rapid turn-over beginning with Willis Van Devanter's retirement did not hurt. There is an essential fact about elections. Whenever the same political party has won three consecutive presidential elections, that party has also placed a majority of justices on the Court. Elections and vacancies explain why the Court is staffed by men and women who for the most part are in tune with their times.

  • August 5, 2009
    Guest Post

     


    By David Kairys, a law professor at Temple University, is the author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer. Kairys' other books include a leading progressive critique of the law, The Politics of Law. Kairys' post also appeared as an oped in today's Philadelphia Inquirer.

     

    In our polarized fascination with Sgt. Crowley and Professor Gates, there's been a lot of talk about teachable moments, but little effort to understand how two decent guys doing their jobs and living their lives could have such different perceptions of their encounter.

    The central problem is how we think about race or, really, about racism.

    The idea that racism is wrong is very new in our culture, history, and law. Before World War II, racial stereotypes were common in everyday life. Racial epithets, slurs, jokes, and put-downs were uneventful ingredients of discussion across ethnic, religious, and class lines. The Supreme Court embraced segregation and slavery, and it approved of the imprisonment of all Japanese-Americans on the West Coast during World War II.

    The change in our values reached its peak when legally sanctioned segregation was ended in the 1960s. The immorality and evil of racism became so accepted that even factions of the Ku Klux Klan declared themselves non-racists who just happened to "like white people." In mainstream culture, racism grew to be so socially forbidden that it was just about the worst thing one could be accused of. Labeling a white person racist was to put him or her in the company of lynching, church-bombing, slaveholding monsters. It became common for some to deny that they even notice race.

    This has made it very difficult to talk about the obvious reality that when we encounter each other - on the street, in the workplace, or in our homes - we do notice race, and it has meaning for us. This is not wrong or a personal failing, and we won't be able to understand or do anything about race issues if we insist that racism is restricted to villains.

  • August 5, 2009
    The Washington Post editorial board today urged the Senate to act on several of the Obama administration's nominations, including Indiana law school professor and former ACS Board of Directors member Dawn Johnsen to head the Office of Legal Counsel (OLC). The Post in "Nominations Roadblock," noted that Johnsen's nomination was approved by the Senate Judiciary Committee almost five months ago, but remains mired in the Senate.

    The Post wrote:

    This is unconscionable. Ms. Johnsen is highly qualified for the OLC post: She served for several years as a top assistant in the office during the Clinton administration and has earned the respect of top OLC lawyers who worked for Republican and Democratic presidents. She should be confirmed, but her nomination has been held hostage mainly by Republicans who are using her strong pro-choice views as political fodder. It has not helped matters that Senate Majority Leader Harry M. Reid (D-Nev.) has been less than assertive in pushing for a vote.

    The newspaper's editorial also noted that the Senate has stalled on confirming three of the administration's federal appeals court nominees.

  • August 5, 2009
    Guest Post

    By Erin Louise Palmer, Clerk, D.C. Court of Appeals & 2009 ACS Public Interest Fellow

    Few individuals are familiar with the story of the U.S. and U.K. expulsion of the inhabitants of the Chagos Islands: "between 1968 and 1973, in a plot carefully hidden from the world, the United States and Great Britain exiled all 1,500-2,000 islanders to create a major U.S. military base on the Chagossians' island Diego Garcia." In Island of Shame: The Secret History of the U.S. Military Base on Diego Garcia, David Vine provides historical insight into collusive U.S. and U.K. actions to establish the Diego Garcia military base, details the devastating consequences for the Chagossians that resulted from their removal, and pleads urgently for the Chagossians' right to return.

    Island of Shame reveals U.S. motivations to establish a military base on Diego Garcia. Vine notes that "by the late 1950s ... the power of the United States had diminished relative to that of its Cold War opponents." It is within this Cold War context that Stuart Barber, a civilian naval planner, devised the Strategic Island Concept. "The premise of the plan was [Barber's] recognition that in the age of decolonization, local peoples and the governments of newly independent nations were increasingly endangering the viability of many of the Navy's overseas bases." Establishing military bases on minimally populated and isolated islands was the heart of Barber's Strategic Island Concept.

  • August 4, 2009

    The kerfuffle over President Obama's birth certificate earned an originalist analysis of the issue by Chris Kelly, writer for Real Time with Bill Maher. Writing tongue-in-cheek, Kelly says, "If the Constitution says Barack Obama is ineligible to be president, he's ineligible to be president." 

    The Constitution is always right because the Framers were infallible, even about slavery and not letting women and Indians vote. The Constitution means what it says and says what it means, not unlike Horton Hatches an Egg, if it had been written 230 years ago by 55 guys.

    The Constitution says:

    "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

    And that's what it means.

    I'm sorry, but I don't think we can get Obama on the "natural born" part. I don't know what it means and neither do you, and neither did the Founding Fathers. I think it had something to do with not letting Louis XVI be president or black people vote, but your guess is as good as mine. And guesses don't count.

    The only person I'm absolutely certain is a natural born man is Bo Diddley.