What IS at stake: A Win by McCain Could Push a Split Court to Right

Discussion in 'Politics' started by sargon20, Jun 29, 2008.

  1. sargon20

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    A Win by McCain Could Push a Split Court to Right


    [SIZE=-1]By Robert Barnes[/SIZE]
    [SIZE=-1]Washington Post Staff Writer[/SIZE]
    [SIZE=-1]Sunday, June 29, 2008; A01[/SIZE]

    For much of its term, the Supreme Court muted last year's noisy dissents, warmed to Chief Justice John G. Roberts Jr.'s vision of narrow, incremental decisions and continued a slow but hardly steady move to the right.

    But as justices finished their work last week, two overarching truths about the court remained unchanged: It is sharply divided ideologically on some of the most fundamental constitutional questions, and the coming presidential election will determine its future path.

    A victory by the presumptive Democratic nominee, Barack Obama, would probably mean preserving the uneasy but roughly balanced status quo, since the justices who are considered most likely to retire are liberal. A win for his Republican counterpart, John McCain, could mean a fundamental shift to a consistently conservative majority ready to take on past court rulings on abortion rights, affirmative action and other issues important to the right.

    "If there's one thing you can see about this court, it is that it still sits on a knife's edge," said Jeffrey L. Fisher, a Stanford University law professor who argued three cases before the justices this year.
    That was readily apparent in the court's closing days, as it whipsawed from left to right and back again on the constitutional rights of terrorism suspects, individual gun ownership and the ability of government to restrict it, and the increasingly narrow view of who is eligible for the death penalty.

    Each case pitted the court's four consistent conservatives against its four slightly less consistent liberals, with Justice Anthony M. Kennedy returning to his role of last term as the deciding vote.

    "The blockbuster cases, the really big cases, have now brought into very sharp focus how closely divided the court is on the really large and philosophically charged issues before the court," said Charles J. Cooper, a Washington lawyer who was an official in President Ronald Reagan's office of legal counsel.

    It has cast "the sharpest possible focus how important the court is going to be, I should think and should hope, in the upcoming election debate," Cooper added.

    The next appointment to the court will almost surely fill the seat now held by one of the court's liberals, whose average age at the beginning of next October's term will be 75. For Obama, any initial appointment would likely replace one liberal with another, albeit with a younger and perhaps more outgoing advocate for his views of the court's role.

    But a McCain victory could give the conservative bloc a clear-cut majority for years to come. President Bush has provided the model with his nominations of Roberts, to continue the conservative legacy of former chief justice William H. Rehnquist, and Samuel A. Alito Jr., to replace the former justice found most frequently in the middle, Sandra Day O'Connor.

    "I think on any measure one would have to agree this is a more conservative court than was the court a couple of years ago, because on any measure Justice Alito is a more conservative justice than was Justice O'Connor," said R. Ted Cruz, a former Rehnquist clerk who argued before the court several times this year as Texas's solicitor general.

    "But that being said, this is very much an almost exquisitely balanced court, with Justice Kennedy remaining at the fulcrum of most -- if not practically all -- close decisions."

    It is telling that Kennedy, currently the court's most influential justice, is never mentioned as a model by either McCain or Obama. Kennedy's iconoclastic views -- conservative on some constitutional questions, more liberal on others -- would not appeal to either candidate's base.
    Kennedy's record this year is not as auspicious as last year's, in which he was in the majority of every one of the court's 5 to 4 decisions.

    But his role at the end of the term cannot be overstated.

    He wrote the court's decisions declaring that terrorism detainees held at Guantanamo Bay, Cuba, have a constitutional right to take their cases to U.S. courts, and that it is unconstitutional for states to impose the death penalty on child rapists. That broad decision established that capital punishment is appropriate only for the most violent of those who take another human life, and perhaps for crimes against the state such as treason and espionage.

    Kennedy provided the fifth vote for the court's decision to strike the District ban on handguns and to find in the Second Amendment the right of private gun ownership. He joined the conservative majority in striking as unconstitutional the "Millionaire's Amendment" in the McCain-Feingold campaign finance reform act, which increased contribution limits for candidates with wealthy, self-financed opponents.

    (McCain's endorsement of Roberts and Alito as his models for judicial appointments is somewhat ironic, since each has authored an opinion dismantling part of the senator's most notable legislative achievement.)

    The addition of a conservative in the mold of Roberts or Alito to replace the court's longest-serving justice, 88-year-old John Paul Stevens, would make Kennedy's role less pivotal. For instance, it would not be hard to imagine the court's jurisprudence on the death penalty changing dramatically without Stevens, who this year announced that his 30 years on the bench had convinced him that capital punishment cannot be fairly administered.

    Likewise, O'Connor had often been a pragmatic ally for the liberals on issues such as abortion rights, affirmative action and the separation of religion and government. Some of those issues already have been affected by Alito's appointment, and additional changes in those areas would seem likely.

    The rush of one-vote constitutional rulings at the end of the term overshadowed the court's earlier ability to resolve equally controversial issues by larger margins. The court voted 6 to 3 on a complicated separation-of-powers case to deny the president's ability to tell courts to rehear a case. By the same margin, it said that requiring voters to present photo identification before casting a ballot was not an unconstitutional burden, an issue that starkly divides Democrats and Republicans.

    It voted 7 to 2 to uphold lethal injection against a challenge that the process could sometimes cause pain that constitutes cruel and unusual punishment, and to approve a congressional rewrite of child pornography law that some said could violate First Amendment rights.
    In all of those cases, the lopsided majorities were formed by members of the usually liberal wing joining conservatives.

    Conservative commentators credit Roberts. "I think those [cases] reflect the success of Chief Justice Roberts's stated intent to promote what he's characterized as judicial minimalism," Cruz said. "I think it's a theme one sees heavily his term."

    By that, he means Roberts wants to focus on the specific facts of the case, and demands proof that the law has caused harm, rather than finding it unconstitutional on its face.

    Critics such as Steven R. Shapiro, national legal director of the American Civil Liberties Union, said such a "wait-and-see attitude" means voters' rights must be demonstrably abridged, or an inmate inhumanely executed, before the court takes action.

    Roberts has also made strategic use of the one real power the chief justice has over this colleagues: the ability to decide who writes the opinion when he is in the majority. He assigned the voter identification case, for instance, to Stevens, and has reportedly urged others to forgo broad pronouncements in the interest of attracting more votes.

    Cooper said the narrow opinions "really don't establish far-reaching constitutional principles that will be readily and easily applied in cases down the line."

    And that may be fine for the core of the conservative wing, which could be revisiting them for years. Roberts is 53, Alito 58, and even Justice Clarence Thomas, who has been on the court for nearly 17 years, turned only 60 last week.
     
    #1 sargon20, Jun 29, 2008
    Last edited: Jun 29, 2008
  2. sargon20

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    Further..............all big key wins for business.

    From 2007:

    Several key cases on affirmative action, abortion and free speech underscored how President Bush's nominees, Chief Justice John Roberts and Justice Samuel Alito, have solidified a five-vote conservative majority. The growing number of 5-4 decisions also illustrates the challenges facing the Chief Justice in his push for greater unanimity, which he hopes will allow the court's decisions to carry greater weight.

    Business cases often showed greater consensus among the justices. While the court heard fewer cases than in past years, it considered a greater share of business cases. The U.S. Chamber of Commerce claimed victory in 13 of the cases it supported before the court, losing in just two.

    Here's a closer look at some of the decisions:

    Antitrust law: A series of rulings have shielded businesses from antitrust charges. In a split decision on Thursday, the court abandoned a 96-year-old law that prohibited manufacturers from setting minimum prices, allowing them to force retailers to sell goods at minimum prices as long as they promote competition.
    In an 8-1 decision, the court made it harder for shareholders to file securities-fraud lawsuits against companies. That followed a 7-1 decision that dismissed an investor lawsuit that alleged an "epic Wall Street conspiracy" by firms to drive up the price of initial public offerings during the 1990s tech boom.

    The court also made it easier for companies to win a speedy dismissal of certain antitrust claims by raising the standard required to prove that companies were colluding to raise prices. And it ruled unanimously in protecting the right of companies to bid up supply prices, overturning a $79 million award against timber giant Weyerhaeuser Co. brought by a smaller rival.

    Punitive damages: The court set new limits on punitive damages when it voided an $80 million verdict against cigarette maker Philip Morris, ruling that juries couldn't use a single victim's lawsuit to punish a defendant for harm caused to hundreds of individuals. It also set aside a $55 million jury award against Ford Motor Co.
    POINT OF VIEW

    "This clearly was our best Supreme Court term in the 30-year history of the NCLC."
    --Robin Conrad, executive vice president, National Chamber Litigation Center​


    Employers won a 5-4 decision that said that businesses couldn't be sued for years-old pay discrimination by requiring employees to file a discrimination lawsuit no more than 180 days after their pay was set. Critics say the decision hampers employees' ability to pursue pay-discrimination suits because they often don't discover for years that other colleagues are being paid more for the same work.

    The court also protected the insurance industry from millions in damages when ruling that insurers Safeco Corp. and Geico Corp. didn't have to notify customers that it had checked their credit reports.
    Another ruling could make it harder for government whistle-blowers to win a share of damages in suits that claim that the government was defrauded. The court sided with Boeing Co. in ruling that whistle-blowers must have direct knowledge, not mere suspicion, of fraud.

    Environment: One big defeat for business came in a split decision where the court ruled that states and environmental groups can sue the Environmental Protection Agency over its refusal to regulate car emissions that produce greenhouse gases, pressuring the government to regulate greenhouse-gas emissions.

    The court sided with the EPA in requiring the electric-power industry to upgrade technology to reduce pollution when making improvements that increase power generation. A third case sided with developers and the EPA in a dispute with environmentalists about protecting endangered species.

    Social issues: One of the court's most divisive decisions came on Thursday when it invalidated two public-school systems' use of race in assigning students to schools. Earlier this year, another 5-4 decision upheld a nationwide ban passed in 2003 on partial-birth abortions.

    Free speech: In two closely watched cases, the court restricted a key portion of a landmark 2002 federal campaign-finance law by allowing corporations and unions to sponsor issue advertisements in the final days before a federal election. It also tightened limits on student speech by allowing schools to prohibit expression that might be construed as advocating drug use.

    Roberts Court Unites on Business - WSJ.com
     
    #2 sargon20, Jun 29, 2008
    Last edited: Jun 29, 2008
  3. Industrialsize

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    'll play TRINITY. Millions of democrats are not voting for Obama because,and I quote one of them, "He's an inadequate black man". It is FAR more important to punish the DNC and Senator Obama for stealing the election from Senator Clinton. GO PUMA PARTY! :cool:
     
  4. sargon20

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    Bingo!! I was thinking as I wrote it up she will still think it's January and Hillary was a chance. :rolleyes: Most people realize when your team loses it's time to sack the coach and sack everyone associated with the teams failed strategy....not Trinity. No it's time to attack the WINNING team as inadequate....DUHHH....they won!! You didn't.
     
  5. B_jacknapier

    B_jacknapier New Member

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    lol you guys really like to talk about trinity to each other when she isn't around
     
  6. sargon20

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    Don't you worry at ALL. She's out there. The Matrix is everywhere, it is all around us, even now in this very room. You can see it when you look out your window, or you turn on your television. You can feel it when you go to work, when you go to church, when you pay your taxes. It is the world that has been pulled over your eyes to blind you from the truth. The truth that Hillary is the world's ONLY hope.
     
    #6 sargon20, Jun 29, 2008
    Last edited: Jun 29, 2008
  7. midlifebear

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    Point of fact, MaCain has one of the smallest penises in the US Senate. It's about 3 inches and poorly circumcised. Plus, he's a bit short. But these are not the reasons I'm voting for Obama. The teeny weeny crowd, in my experience, tends to find solace in hiding among conservatives. He doesn't strike me as a man of great confidence. Rather, he's just another Republican who cannot be trusted with a box of safety matches.
     
  8. sargon20

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    What's interesting is Obama threads on LPSG are beating McCain threads 3:1. It's like McCain is being graded on a curve. And Palin is now being graded on a curve too. A month ago she said in an interview she didn't know what the Vice-President does. And that story gets zero traction.

    Talking Points Memo | What About the Curve?
     
    #8 sargon20, Sep 3, 2008
    Last edited: Sep 3, 2008
  9. Domisoldo

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    I see you have amigos in high places...:biggrin1:
     
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