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The Supreme Court constantly, CONSTANTLY is on the wrong side of history.

Dred Scott v. Sandford (ruling Dred Scott was property and not a human being and that americans of african descent were not citizens), Korematsu v. United States (ruling that the internment of American citizens of Japanese descent was constitutional).

Then there's the lifeterms and cloak of secrecy that allows them to essentially behave like these untouchable demigods, free from the scrutiny of public opinion.

Say what you will about bad Presidents and bad Congresses, but at least the public gets to vent against them once in a while. When's the last time the SCOTUS got picketed? It's laughable how they whined like babies when Obama called them out in that one State of the Union address.

I don't know and frankly don't care about the innane details of how judges, and law works. All I know is when I crack open my US history book, everytime the Supreme Court had the opportunity to do the RIGHT thing it failed. Blacks = Property, Japanese American interned? Constitutional.


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Comment Preferences

  •  Nonsense (17+ / 0-)

    You do not know what you are talking about. From Maubury through Brown they often were the vehicle for change in the face of a reactionary President and Congress.

  •  We need another Warren Court (4+ / 0-)
    Recommended by:
    DeadHead, Crazycab214, condorcet, avsp

    There was a time that when Congress got too conservative to function, the Supreme Court would step up.

  •  Roe v. Wade? (14+ / 0-)

    Your generalities are the worse branch.

    Somebody has to do something, and it's just incredibly pathetic that it has to be us.
    ~ Jerry Garcia

    by DeadHead on Tue Dec 11, 2012 at 02:37:44 AM PST

  •  For every Dred Scott and Korematsu (21+ / 0-)

    which you can cite, I can cite to a Brown or a Loving or the Reapportionment Cases,  which advanced the national dialogue on major issues and helped to turn the ship of state around.

    Is SCOTUS a flawed institution?  In the sense that it is populated by human beings, who are, by the nature, flawed, the answer is indubitably YES.  Nothwithstanding that, the Court has done both good and ill in the past 225 years, but, I would never even consider trading it for the alternative, which is no check on the other two branches.  As for lifetime tenure, HOORAY.  The Warren Court never could have accomplished what they did if they were not insulated from politics.

    Ultimately, the only thing that matters with respect to preserving choice is who will be nominating the next Supreme Court Justices.

    by Its the Supreme Court Stupid on Tue Dec 11, 2012 at 02:42:30 AM PST

  •  I think "Behind the times..." (4+ / 0-)

    Is more accurate than worst.

    Which probably isn't surprising.  Justices sit for a long time, outlasting the Presidents who appoint them by decades.  They are immune from both outside political pressure and any meaningful oversight.

    Dred Scott...Plessy v Ferguson...Bush v Gore...Citizens United.

    But there is the other side of the coin.  Brown v Board of Ed...Loving v Virginia.

    I think there is a need for more oversight.  Recusal is entirely at the Justice's own discretion, allowing for blatant conflict of interest.

    I would support replacing life tenure with something along the lines of a 10 year term.

    I understand the original reasons for life tenure but I think in modern times...with longer lifespans and President's deliberately choosing younger Justices to extend their legacies, the bad has come to outweigh the good.

    Right now on the Court you basically the same problem you have in the House.  An strongly unified bloc of corrupt ideologues that substitutes their own opinion for law and fact.

    "I don't give them Hell. I just tell the truth about them and they think it's Hell."

    by Notthemayor on Tue Dec 11, 2012 at 02:55:49 AM PST

  •  Well this is obvious: (14+ / 0-)
    I don't know and frankly don't care about the innane details of how judges, and law works
    Maybe you SHOULD spend some time caring about it and then you'd know how utterly ignorant this diary is.

    For the record, I am not a member of Courtesy Kos. Just so you know. Don't be stupid. It's election season. My patience is short.

    by mdmslle on Tue Dec 11, 2012 at 03:07:33 AM PST

  •  Diarist...Try this, for starters.... (6+ / 0-)


    Investigate the links, not necessarily the first posts you see.

    Somebody has to do something, and it's just incredibly pathetic that it has to be us.
    ~ Jerry Garcia

    by DeadHead on Tue Dec 11, 2012 at 03:44:40 AM PST

  •  When's the last time the SCOTUS got picketed? (7+ / 0-)

    Have you ever BEEN to the Supreme Court building?  There are people picketing there on a pretty regular basis...

    You mentioned Korematsu and Dred Scott.  What about Miranda v. Arizona, Brown v. Board, Brewer v. Williams, Griswold v. Connecticut, Church of the Lukumi, United States v. Virginia, Lee v. Weisman, Gideon v. Wainwright, Lawrence v. Texas, Romer v. Evans, etc?  (I just named those off the top of my head in 30 seconds...there are many many more.)

  •  A Bastion of Prejudice (1+ / 0-)
    Recommended by:

    That's because it is a bastion of prejudice.

    When at least 50% of the Supreme Court are women, then we might see some justice.

  •  Constantly, huh? (2+ / 0-)
    Recommended by:
    BachFan, maybeeso in michigan

    Then maybe you could find a couple examples more recent than, say, 68 and 155 years past.

    As far as the other branches... do you think either of those branches opposed either of those decisions at the time?

    Just a few examples:
    Abortion rights.
    Teaching evolution instead of creationism.
    Marriage rights.
    Privacy rights.

    What world do you live in where the USSC hasn't consistently running far ahead of the other two branches on these and many other fundamental rights?

  •  Dafuq? (5+ / 0-)

    Miranda v Arizona?
    Brown v Board of Ed?
    Loving v Virginia?
    Lawrence v Texas?
    Sweatt v Painer?
    Tinker v Des Moines?
    Mapp v Ohio?
    Roe v Wade?
    McLaurin v Oklahoma State Regents?
    Meritor Savings Bank v Vinson?
    Romer v Evans?
    Gideon v Wainwright?
    Bragdon v Abbott?

    I don't know and frankly don't care about the innane details of how judges, and law works.
    Yes, you've made that quite clear.  Don't let that stop your indignant rant though.

    Красота спасет мир --F. Dostoevsky

    by Wisper on Tue Dec 11, 2012 at 06:40:21 AM PST

  •  Free from Public Opinion BY DESIGN (3+ / 0-)
    Recommended by:
    Cinnamon, Gary Norton, BachFan

    There is a reason they are not elected.  Same for their lifetime appointments.  They are meant to be unswayable and not answerable to whims of public sentiment.

    Also realize that a lot of times their "bad rulings" are the exact message needed to send to Congress to formalize the law.

    For instance, in the 70's two cases came to the SCOTUS, Geduldig v Aiello and General Electric v Gilbert wherein the court ruled that under current law at the time, medical coverage discrimination against pregnant women was not illegal.  And they were right, technically.

    While Cleveland Board of Ed. v LaFleur was a step in the right direction about not forcing unpaid maternity leave, the law was still silent on other specific rights.

    What the SCOTUS was saying is not that discriminating against pregnant women is a Constitutional right, it was saying that the law of the United States, at the time of hearing, does not address this via statue.

    Their ruling was correct and two years after GE v Gilbert Congress finally got the message and we got the Pregnancy Discrimination Act of 1978, thus voiding the previous rulings and setting the statutory groundwork for all future cases to be decided.

    That is not a sign of a bigoted backward facing unaccountable SCOTUS deaf to the evolving norms of modern society... that is how the system is supposed to work.

    Красота спасет мир --F. Dostoevsky

    by Wisper on Tue Dec 11, 2012 at 06:50:50 AM PST

  •  As usual, the conversation here centers on (0+ / 0-)

    the wrong metrics. As usual we argue tit for tat. The argument is over how many good decisions versus how many bad decisions the court has made over the years. That kind of shorthand argument overlooks the most important metric: how long did the court allow injustice to reign? The Dred Scott was not the beginning of racial injustice, it was simply a continuation of it. The Loving decision which  ended the prohibition of mixed-race marriages is justly regarded as a good decision for the court, but there is no accounting for all the chances it had to take that decision years earlier.

    Same sex marriage could have been ended at any time over decades, but the court allowed, and still allows, injustice to be done.

    So the metric for measuring the "goodness" of court should be how many days it has allowed injustice to continue multiplied by the number of persons to whom that injustice was done.

    There are many situations in which the court could have, should have, stopped injustice but didn't. Justice delayed is justice denied, and by that metric the court is extremely corrupt and should be expunged and replaced by a system based on the court system of ancient Athens.

    Might and Right are always fighting, in our youth it seems exciting. Right is always nearly winning, Might can hardly keep from grinning. -- Clarence Day

    by hestal on Tue Dec 11, 2012 at 06:54:59 AM PST

    •  But your metric is only pertinent (1+ / 0-)
      Recommended by:
      Gary Norton

      if it is regarded comparatively because general perceptions of what is just and unjust evolve a great deal over time.  Take marriage equality for gays as an example. Nowadays it is a commonly held sentiment but at the time of the framing of the Constitution it is doubtful you could find even a single voice calling for LGBT rights of this sort. It would be woefully unfair to count all the time that has transpired since the founding as compounding against the Court.

      The only fair metric is one that looks comparatively at the rulings of the Supreme Court with respect to the state of Legislative, Presidential and public attitudes. In short, they should be graded on the curve and I think when that method is applied they do rather well over the years. (I would exclude the present court from that assessment because of its excessively conservative makeup, but tides come and go.)

      Having said this, I consider recent developments in the process of choosing justices to highlight flaws in the system and would be more than willing to entertain changes in the general way we determine the makeup of the Court. Therefore I, for one, would love to hear about the court system of Athens about which I have practically zero knowledge. It would be appreciated if you could offer some enlightenment and perhaps a few links to historical sources.

      The world is a den of thieves and night is falling. -Ingmar Bergman

      by Pirogue on Tue Dec 11, 2012 at 07:52:54 AM PST

      [ Parent ]

      •  No, the "pertinence" test is not appropriate. (0+ / 0-)

        From the beginning, justice was defined in our founding document, the Declaration of Independence: "all men are created equal." This idea, when applied to societies of any era is crystal clear. This fact, and it is a fact, is the reason that the Framers made concessions to the slavers in the South thereby giving them leave to continue an inhuman injustice. But once the new government was established the court then could have ruled against slavery in favor of "all men are created equal." In fact such a ruling was required if the court was to live up to its duty.

        To argue that the court should follow what people of some era believed irrespective of what the Declaration said is to say that the court is nothing more than an echo chamber, not a force for justice.

        And it has been an echo chamber for centuries. And each day it failed to act for justice it forever blackened its name. The Supreme Court should be an activist court in favor of justice. Once it rules, then it is up to the other branches to conform. So the court is, and always has been, corrupt, except for a few instances here and there and from to time.

        Yes, I am saying that the court should have ruled right away in favor of the Declaration of Independence and against the constitutional concessions to slavery.

        Might and Right are always fighting, in our youth it seems exciting. Right is always nearly winning, Might can hardly keep from grinning. -- Clarence Day

        by hestal on Tue Dec 11, 2012 at 08:28:44 AM PST

        [ Parent ]

        •  I did a little reading (0+ / 0-)

          and discovered that the Athenian system you commended would actually be worthy of condmenation under your standard given that it was only open to participation by male citizens (not to even mention seeming to have no problem with slavery). Now, of course you could easily argue that it should not be condemned by present day standards of justice and social equality but should be viewed in light of the social ideas current at the time. I would agree, but then you would be invoking the precise argument I used in suggesting a different emphasis for your metric. In short, failure of ancient Athenians to recognize the evil of gender bias is far less reprehensible than when such a lapse occurs today. The same could be said of the failure in the early days of our republic to recognize that gays should enjoy equal standing in society as compared to such a failure today. That was the entire thrust of my argument and I never indicated that "the court should follow what people of some era believed irrespective of what the Declaration said" as you characterized my remarks. All I am saying is that in judging the Court the decisions should be viewed in social-historical context.

          And even beyond that, it is not the members of the court that should be the focus of our discussions. It is really the institution itself which should be considered at large. This would include the powers of the court, the constitution of the court (numbers, terms, etc.) and the methods for deciding its makeup (appointment vs. election, etc.) I think so far we have been pretty lucky in having an institution that has managed to keep us on a fairly good track given the inevitable tension between the need for a court with final authority and the need to keep unbridled judicial power in check.  

          Of course the court has lagged in many areas historically but it has also had moments when it has championed causes that were just and did so well ahead of the body politic. But even a perfectly enlightened court cannot get too far ahead of its time because of the danger of an enlightened decision doing more harm than good. Consider what probably would have happened if such an enlightened court had made a sweeping ruling 40 years ago that gays should have equal marriage rights. Is there much doubt that an amendment would have quickly ensued and the injustice would have been enshrined in the Constitution placing a daunting obstruction on the path to reform, one that has so far been happily avoided leaving change as much more feasible aspiration in a time that it is a social possibility.

          Having said all this I also recognize the need for change because the balance on the court is way too precarious. If Romney had won we might well be facing a court with a Majority of Scalia-like justices who would wreak havoc on the civil rights won over course of the last century. IMHO it is time we start thinking about way to change the process of choosing justices, but we don't want to throw the baby out with the bath water.

          The world is a den of thieves and night is falling. -Ingmar Bergman

          by Pirogue on Tue Dec 11, 2012 at 10:38:47 AM PST

          [ Parent ]

          •  I appreciate your comment, but I am (0+ / 0-)

            traveling right now and don't have the time to respond in detail. You are in good company. The Framers expressly rejected Athenian democracy as a model for the new constitution for the very same reasons you gave. But by the middle of the next century new scholarship had rehabilitated Athenian democracy and invalidated the earlier consensus.

            The Framers are not to blame because they just didn't know any better. However the Framers were engaged in designing a system, and in such a situation ideas are key. I spent my working life designing systems and I learned that good ideas are where you find them. You can even find them in bad systems. So, by turning away from the Athenian system the Framers denied to themselves, and to us, many very good ideas that had actually been tested in the real world.

            The court system in ancient Athens was one of those good ideas. It incorporated the superior understanding that the Athenians had with respect to the distribution and management of power. They recognized the two kinds of governmental power and the Framers did not.

            In addition the Athenians had a wonderful way to make sure that all legislation was actually based on facts, which is also superior to our current system. Because of this there were no political parties, and therefore nonpartisanship ruled the day. Imagine how much better off we would be without parties and partisanship.

            There is a lot more to say about the superior ideas to be found in Athenian democracy. People have written books about them. For my part. I count nine superior ideas in Athenian democracy  that would make America a better place.

            Might and Right are always fighting, in our youth it seems exciting. Right is always nearly winning, Might can hardly keep from grinning. -- Clarence Day

            by hestal on Tue Dec 11, 2012 at 04:06:13 PM PST

            [ Parent ]

            •  I would like to make it clear that I (0+ / 0-)

              was not rejecting or condemning the Athenian system, only saying that from my limited reading it seemed to have had significant flaws and that any metric used to judge a particular institution is not complete if it fails to acknowledge the cultural standards prevalent at the times in question.  I was really making no point further than that and the idea that our Supreme Court system has fared reasonably well throughout its history. I do not believe this to be true if the judgment is made in comparison to an ideal, but does hold if made comparatively, that is, a grading on a curve.

              This is not to say I don't think there should be changes made. At present I am leaning toward a system where the Supreme Court is reempaneled periodically (perhaps every 12 years)  and all justices are retired and an entirely new group is chosen. This would be a process that occured in Congress and I think would lead to compromise and would assure a more balanced court avoiding the vagaries of incapacity and death leading to a court highly biased in favor of some extreme ideology such as what threatens us now with the predominance of Neo-Cons on the court.

              At the same time, anyone who wishes to undertake changing the fundamental institutions of governance has to recognize the perils in such a course of action. Anytime the waters are sufficiently stirred to facilitate sweeping changes there is always the danger of the process veering into unintended territory.

              The world is a den of thieves and night is falling. -Ingmar Bergman

              by Pirogue on Wed Dec 12, 2012 at 08:44:11 AM PST

              [ Parent ]

  •  didja miss Warren? (I did, but I wasn't (1+ / 0-)
    Recommended by:
    Gary Norton

    born yet :)

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