Of course, this plainly obvious truth is obscured by a media that refuses to call right-wing legislating “activism,” but consistently labels center-to-left-wing judges and nominees as radical extremists, who should be feared and condemned.
I missed the Kagan hearings this morning, but from what I’m gathering it was pretty much a high tech lynching of Justice Thurgood Marshall. Seriously. Evidently, he was one of those “activist” judges (and a community organizer too, I’m sure)and I think we all know what he was agitating for, don’t we?
Meanwhile, she is an “out of the mainstream” elitist, weirdo (lesbian, NY Jew) who worked for a you-know-what and liked it. Ever since Beauregard Sessions ascended to the ranking Republican position on the Judiciary Committee whatever uhm … subtlety the Republican strategy once had has evaporated into crude dogwhistling.
Right. See, Marshall was a lunatic leftist extremist, but Scalia and Thomas are ideologically consistent.
Jesus, take the wheel. SCOTUS recently handed down a decision — reenforcing an Obama administration policy — that is so dumb it rivals John Roberts’s “what is this ’email’ you speak of?” moment of shame.
The court, and Obama, broadly defined “material support” of so-called terrorist organizations.
While the relevant statute defines “material support” to include a long list of items that are clearly connected to the violent activities of terrorists, it also includes more ambiguous terms such as “any…service,…training, expert advice or assistance.”
Basically, this decision means peacekeepers like Jimmy Carter could be accused of offering “material support,” meaning any service, which could include counsel or mediation, to groups like the democratically elected Hamas.
Also, notice the term “terrorist group” is a completely arbitrary label. Hamas, though they came to power in a democratic election, is a terrorist group, while Israel, which receives billions of dollars in aid from the US, and uses illegal weapons like white phosphorous against a civilian population, and continues to exercise collective punishment unabated by western bystanders, is an “important ally.”
In 1957, the Cleveland police showed up at Dollree Mapp’s home looking for a bombing suspect. Ms. Mapp would not let them in without a search warrant, but they entered anyway. The police did not find the bomber, but they came across a trunk containing “lewd and lascivious” books and pictures.
Ms. Mapp was convicted of possessing obscene materials, even though the evidence was taken without a warrant. She was tried in state court, like the overwhelming majority of criminal defendants. So it did her no good that federal courts had applied the so-called “exclusionary rule” since 1914 to bar the use of illegally seized evidence.
In 1961, in Mapp v. Ohio, the Supreme Court reversed Ms. Mapp’s conviction and adopted the exclusionary rule as a national standard. The court acknowledged that the rule might let some criminals go free, but it underscored that it was more important to compel the nation’s police forces to obey the law.
The court carved out exceptions over the years, but the basic rule laid down in Mapp has endured for nearly five decades. Now, Chief Justice John Roberts’s conservative majority on the Supreme Court is working to undo the exclusionary rule in a more fundamental way. It’s been a longstanding interest of Mr. Roberts’s. As a young Reagan administration lawyer, he worked on what he described in a memo as a “campaign to amend or abolish” the rule.
The Mapp decision has had both effects that were predicted when it came down. Some criminals had convictions thrown out, or avoided being charged, because evidence was obtained illegally or found by relying on illegally obtained information. But Mapp also changed the incentives for the police. It gave them less reason to enter a home or tap a phone without a warrant.
The exclusionary rule has always had critics. Long before Mapp, Judge Benjamin Cardozo said it allowed the criminal to go free “because the constable has blundered.” In recent years, it has become Exhibit A for those who argue that defendants get off on technicalities.
In 2006, in Hudson v. Michigan, Chief Justice Roberts assigned the majority opinion to Justice Antonin Scalia, who wrote a sweeping assault on the rationale for excluding illegally obtained evidence. Justice Scalia argued that “the increasing professionalism of police forces,” the increased availability of civil rights lawsuits, and other checks on police wrongdoing have sharply reduced the need for such measures.
Last month, the court eroded the rule still further in Herring v. United States. Writing for the majority, Chief Justice Roberts declared that evidence need not necessarily be disqualified if it was illegally obtained because of errors in police databases. Isolated mistakes of this sort, he insisted, are not among the exclusionary rule’s “core concerns.”
Justice Ruth Ginsburg, in dissent, was right to point out that in the modern age database errors can lead to many people’s rights being denied. The harm to a citizen who is arrested and searched on the street because a bureaucrat has made a computer error, she noted, is just the sort of invasion the founders worried about when they drafted the Fourth Amendment.
After Hudson and Herring, critics of the exclusionary rule have high hopes that the Roberts court will take the ultimate step of overruling Mapp v. Ohio. That would be a great setback for the rule of law.
Despite Justice Scalia’s claims, police misconduct is rampant. In the last few years, the Atlanta and Oakland police departments have had major scandals over officers’ lying to obtain search warrants. In this same period, of course, the federal government engaged in an illegal domestic wiretapping program, the extent of which is still unknown.
The exclusionary rule does more than simply put a check on police misconduct. It protects the integrity of the judicial system. If courts put people like Ms. Mapp in prison based on the actions of lawless, marauding police officers, respect for the law suffers.
There is no denying that the exclusionary rule allows a small number of criminals to go free because the police have blundered — which is certainly no minor matter. But the more faithfully the rule is applied, the more likely the police are to collect evidence lawfully.
As important as it is to convict criminals, the Supreme Court in Mapp rightly insisted that the Constitution must not be trampled in the process. “Nothing can destroy a government more quickly,” the court noted, “than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”
The court unanimously overruled an Arizona appeals court that threw out evidence found during such an encounter.
The case involved a 2002 pat-down search of an Eloy, Ariz., man by an Oro Valley police officer, who found a gun and marijuana.
The justices accepted Arizona’s argument that traffic stops are inherently dangerous for police and that pat-downs are permissible when an officer has a reasonable suspicion that the passenger may be armed and dangerous.
The pat-down is allowed if the police “harbor reasonable suspicion that a person subjected to the frisk is armed, and therefore dangerous to the safety of the police and public,” Justice Ruth Bader Ginsburg said.
Some people claim that Barack Obama’s election has ushered in a “postracial” America, but the truth is that race, and racial discrimination, are still very much with us. The Supreme Court should keep this reality in mind when it considers a challenge to an important part of the Voting Rights Act that it recently agreed to hear. The act is constitutional — and clearly still needed.
Section 5, often called the heart of the Voting Rights Act, requires some states and smaller jurisdictions to “preclear” new voting rules with the Justice Department or a federal court. When they do, they have to show that the proposed change does not have the purpose or effect of discriminating against minority voters.
When Congress enacted Section 5 in 1965, officials in the South were creating all kinds of rules to stop blacks from voting or being elected to office. Discrimination against minority voters may not be as blatant as it was then, but it still exists. District lines are drawn to prevent minorities from winning; polling places are located in places hard for minority voters to get to; voter ID requirements are imposed with the purpose of suppressing the minority vote.
After holding lengthy hearings to document why the Voting Rights Act was still needed, Congress reauthorized it in 2006 with votes of 98 to 0 in the Senate and 390 to 33 in the House. Now, a municipal utility district in Texas that is covered by Section 5 is arguing that it is unconstitutional, and that it imposes too many burdens on jurisdictions covered by it.
If the Supreme Court — which is expected to hear arguments in the case this spring — strikes down Section 5, it would be breaking radically with its own precedents. The court has repeatedly upheld the Voting Rights Act against challenges, and as recently as 2006 it ruled that complying with Section 5 is a compelling state interest. It would also be an extreme case of conservative judicial activism, since the 14th and 15th Amendments expressly authorize Congress to enact laws of this sort to prevent discrimination in voting.
A perennial criticism of Section 5 is that it covers jurisdictions it should not, or fails to cover ones it should. There is no way to construct a perfect list, but Congress has done a reasonable job of drawing up the criteria, and it has built flexibility into the act. Jurisdictions are allowed to “bail out” if they can show that they no longer need to be covered, and courts can add new jurisdictions if they need to be covered.
In last fall’s election, despite his strong national margin of victory — and hefty campaign chest — Mr. Obama got only about one in five white votes in the Southern states wholly or partly covered by Section 5. And there is every reason to believe that minority voters will continue to face obstacles at the polls.
If Section 5 is struck down, states and localities would have far more freedom to erect barriers for minority voters — and there is little doubt that some would do just that. We have not arrived at the day when special protections like the Voting Rights Act are not needed.
Note from Allison: Great news, everyone! Racism is OVER!
The Supreme Court announced Friday that it will hear a challenge to the landmark 1965 voting rights act, paving the way for a major decision this term on federal power to oversee state election laws.
In the backdrop is the recent election of Barack Obama and the question of whether America still needs an expansive law protecting against discrimination in voting now that a black man has won the presidency.
A decision in the case from Texas, to be heard in April, could impact the U.S. government’s authority to ensure that racial minorities — who were subjected to literacy tests and other devices to keep them from the polls for most of the 20th Century — continue to have as much of a chance as whites to elect candidates of their choice.
In dispute is the 2006 renewal of the Voting Rights Act, which Congress passed overwhelmingly and President Bush signed.
Richard Hasen, an election-law expert at Loyola Law School in Los Angeles, said the dispute “has the potential to be the most important election case since Bush v. Gore.” That 2000 decision cut off Florida ballot recounts and ensured Bush the White House.
“The court has repeatedly upheld the constitutionality (of the disputed provision),” Hasen noted. “The question is whether the role of race in American politics has so changed in the last decade or two that remedies that were once constitutional are now considered impingements on state sovereignty.”
A Texas utility district says the provision known as Section 5, which gives the U.S. government authority to oversee state electoral-law changes, is no longer needed and is unconstitutional. The utility district uses the election of the first black president as evidence.
“The America that has elected Barack Obama as its first African-American president is far different than when Section 5 was first enacted in 1965,” say lawyers for the utility district.
Section 5 covers nine states and several counties and municipalities where, as Justice Department lawyers note, race discrimination “has been most flagrant.” Texas utility district lawyer Gregory Coleman says the continued use of that section attaches a “badge of shame … based on old data” and should be lifted.
Civil rights activists, backing the Justice Department’s defense of the renewed Voting Rights Act, have stressed that parts of the nation continue to vote along racial lines and argue that the law that opened the door to widespread black voting four decades ago is still needed.
“Obama’s election reflects an enormous advancement in race relations in the United States,” says Laughlin McDonald of the American Civil Liberties Union. “But voting, particularly in the southern states covered by the oversight provision, remains significantly polarized along racial lines.”
Exit polls from the Nov. 4 presidential election showed that whites in many southern states heavily favored John McCain to Obama. In Texas, 73% of whites favored McCain; in Georgia, 76%, and in Alabama, 88%. Nationally, the percentage of whites for McCain was 55%, exit poll data show.
Last May, a special lower court unanimously upheld the provision. U.S. Appeals Court Judge David Tatel wrote, “(G)iven the extensive legislative record documenting contemporary racial discrimination in voting in covered jurisdictions, Congress’s decision to extend Section 5 for another twenty-five years was rational and therefore constitutional.”
States covered by jurisdictions cannot make any changes to their electoral laws without getting approval from the Department of Justice or a federal district court in Washington. The requirement is designed to ensure that a local government does not draw new voting-district boundaries or enact rules that would dilute the votes of blacks or other minorities.
The law passed the Senate unanimously and the House by 390-33 in 2006.
U.S. Solicitor General Gregory Garre had emphasized in his filing to the court all the evidence Congress reviewed when it reauthorized the law, including “several instances of minority voters’ being threatened with arrest or prosecution for voting.” He said that significant gaps in registration rates between minorities and white citizens continue to exist and that the threat of Section 5 is a significant deterrent in states and municipalities where white majorities might want to adopt electoral plans that dilute the power of black voters.
The utility district, which conducts elections to select its board of directors, says its policies should not be subject to regular DOJ review. Coleman says federal law has sufficient protections for any voter racial bias that occurs.
The case is Northwest Austin Municipal Utility District Number One v. Mukasey.
Tomorrow evening we are hosting phonebanking in our New York City office to help the cause in South Dakota by encouraging voters to vote against a state abortion ban.
Please Join Us!
The votes cast on November 4th will have an enormous impact on reproductive rights in the 21st century. While most of the country and the world will be watching what states go red, and what states go blue, many of our colleagues and allies will also be watching South Dakota, as the state’s residents vote again on a near complete ban on all abortions.
A sweeping ban, like the one on the ballot, would be a direct challenge to Roe v. Wade and would be challenged — possibly all the way to the Supreme Court. As we saw with the Supreme Court’s decision upholding the federal ban on a certain method of performing abortions, we cannot rely on this court to protect women’s right to make fundamental decisions for ourselves and our families. We cannot sit by as the future of reproductive freedom nationwide is threatened in South Dakota.
We hope to see you tomorrow.
Background: New York Times
WASHINGTON — After a group of doctors challenged a South Dakota law forcing them to inform women that abortions “terminate the life of a whole, separate, unique living human being” — using exactly that language — President Bush’s appointees to the federal appeals courts took control.
A federal trial judge, stating that whether a fetus is human life is a matter of debate, had blocked the state from enforcing the 2005 law as a likely violation of doctors’ First Amendment rights. And an appeals court panel had upheld the injunction.
But this past June, the full United States Court of Appeals for the Eighth Circuit voted 7 to 4 to overrule those decisions and allow the statute to take immediate effect. The majority argued that it is objectively true that human life begins at conception, and that the state can force doctors to say so.
Mr. Bush had appointed six of the seven judges in the conservative majority. His administration has transformed the nation’s federal appeals courts, advancing a conservative legal revolution that began nearly three decades ago under President Ronald Reagan.
to Deny Troy Davis Petition
Failure to Consider the Evidence Is “Shocking,” Says Human Rights Organization
Contact: Wende Gozan at (212) 633-4247 or Jared Feuer at (404) 876-5561 x14
(Washington, D.C.) –Amnesty International USA (AIUSA) decried today’s U.S. Supreme Court decision to deny a new hearing for Georgia death-row inmate Troy Anthony Davis. The Court had granted Davis a stay of execution just hours before he was scheduled to be put to death while it decided whether to hear the case. In denying Davis’ petition for a writ of certiorari, the Court has effectively ended a longstanding battle to have new evidence in Davis’ favor heard in a court of law.
“The Supreme Court’s decision is truly shocking, given that significant evidence of Davis’ innocence will never have a chance to be examined,” said Larry Cox, executive director for AIUSA. “Faulty eyewitness identification is the leading cause of wrongful convictions, and the hallmark of Davis’ case. This was an opportunity for the Court to clarify the constitutionality of putting the innocent to death – and in Davis’ case, his innocence could only be determined with a new hearing or trial.”
“It is disgraceful that the highest court in the land could sink so low when doubts surrounding Davis’ guilt are so high,” Cox added.
The U.S. Supreme Court denied Davis’ petition for writ of certiorari that was submitted on constitutional grounds of due process and cruel and unusual punishment violations if an individual is put to death despite significant claims to innocence. Davis’ attorneys filed the petition after the Georgia Supreme Court’s narrow 4-3 ruling to deny Davis an evidentiary hearing last March; the ruling was based on technicalities rather than basic questions of guilt and innocence.
Davis was convicted in 1991 of killing Savannah police officer Mark Allen MacPhail. Authorities failed to produce a murder weapon or any physical evidence tying Davis to the crime. In addition, seven of the nine original state witnesses have since recanted or changed their initial testimonies in sworn affidavits. One of the remaining witnesses is alleged to be the actual perpetrator.
Since the launch of its February 2007 report, Where Is the Justice for Me? The Case of Troy Davis, Facing Execution in Georgia, Amnesty International has campaigned intensively for a new evidentiary hearing or trial and clemency for Davis, collecting well over 200,000 clemency petition signatures and letters from across the United States and around the world. To date, internationally known figures such as Pope Benedict XVI, Archbishop Desmond Tutu and former U.S. President Jimmy Carter have all joined the call for clemency, as well as lawmakers from within and outside of Georgia.
Amnesty International is a Nobel Peace Prize-winning grassroots activist organization with more than 2.2 million supporters, activists and volunteers who campaign for universal human rights from more than 150 countries. The organization investigates and exposes abuses, educates and mobilizes the public, and works to protect people wherever justice, freedom, truth and dignity are denied.
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For more information about the Troy Davis case, please visit: www.amnestyusa.org/troydavis.