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How the U.S. Judicial System Has Become Politics By Other Means

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Fooloso4
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How the U.S. Judicial System Has Become Politics By Other Means

Post by Fooloso4 » October 23rd, 2018, 8:50 pm

While most of us take it for granted that judges, like everyone else, have their biases, a few days ago it came to light that there is a training camp for clerkship with federal judges run by the conservative Heritage Foundation with the backing of wealthy donors who remain anonymous. Just what goes on is a closely held and guarded secret with members required to sign a strict nondisclosure agreement swearing that you won’t reveal who teaches the academy or what they say, and vow that you will not use any information you receive “for any purpose contrary to the mission or interest of The Heritage Foundation.”

Both Neil Gorsuch and Brett Kavanaugh were selected by Trump from a list provided by the Federalist Society, another heavily funded conservative group.

According to Slate:
Heritage has dropped that pretense [of non-bias]: It demands that all participants in its “academy” use what they learn to advance the group’s mission, which corresponds almost perfectly with the current GOP platform. As NYU School of Law professor Melissa Murray noted, the Heritage academy is another phase in Republicans’ weaponization of the courts. It is designed to indoctrinate a new class of clerks with reactionary views that they are expected to implement through their work in the judiciary.
https://slate.com/news-and-politics/201 ... gkpQQd5qXs

For some updates: https://www.nytimes.com/2018/10/18/us/p ... ining.html

Despite the conservative rhetoric of upholding the Constitution they are destroying the balance of power, with McConnell refusing to consider Obama’s nominee Merrick Garland, who by most estimates is a moderate, pushing through Kavanaugh, Trump appointing a record number of federal judges from a list provided by the conservative Federalist Society, and many more to fill - McConnell declared confirming Trump’s nominees is his “top priority”. The conservative majority Supreme Court consistently voting in favor of corporations and conservative big money interests (Citizens United), questionable interpretations of “originalism” (Scalia’s majority decision on gun rights - Columbia v. Hiller). The Trump party is pushing back on gender and reproductive rights, and environmental protection has become secondary to wealth protection. There is no indication that increasingly stacked conservative courts are going to oppose the new Trump party. Winning comes first and truth and decency have become a liability. There are areas of hope for liberals and moderates (an endangered species), the midterm elections and the Mueller investigation, but the outcome of both are unknown for now.

Fooloso4
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Re: How the U.S. Judicial System Has Become Politics By Other Means

Post by Fooloso4 » October 24th, 2018, 1:08 pm

An opinion piece by Eric Posner, professor at the University of Chicago Law School, entitled “The Far-Reaching Threats of a Conservative Court” was published yesterday.
https://www.nytimes.com/2018/10/23/opin ... e=Homepage

At issue is the “administrative state”. Steve Bannon openly declared that the Trump administration would dismantle it. Whatever else “make America great again” might mean, it is a return to a “golden age” before the New Deal, an age without consumer or environmental protection. The conservative argument is that the administrative state acts as an unconstitutional fourth branch of government, both making and enforcing laws.

I have highlighted a few points for those who might not want to read the whole thing.
With the start of the Supreme Court’s new term, many people are wondering whether the conservative majority, which has taken a further step to the right with the appointment of Brett Kavanaugh, will overturn Roe v. Wade.

But that’s not where the action is. As two cases argued before the court this month illustrate, the real question is whether it will undermine the system of government that has protected the public from abusive business practices since the New Deal.

The two cases might seem esoteric, and far removed from government protection of workers and consumers. Gundy v. United States involved a challenge to the attorney general’s extension of sex-crime-registration law to offenders convicted before the law was enacted. Nielsen v. Preap involved a government policy that deprived certain unauthorized immigrants of some procedural protections against deportation.

Liberals might root against the government — the immigration and sex offender policies are harsh. But they should be careful what they wish for. The conservative majority can, and most likely will, rule against the government using broad theories that would also eat away at the constitutional foundations of the New Deal system, which is essential for protecting health and safety, the environment and much else.

Since the New Deal, Congress has authorized regulatory agencies to make policy by issuing regulations. These agencies are now a familiar part of our government. They include the Environmental Protection Agency, the National Labor Relations Board and the Federal Emergency Management Agency, which is currently aiding hurricane victims in Florida. Agency regulation became necessary as the problems of a modern industrialized nation overwhelmed the regulatory capacities of states, local governments and Congress itself.

The New Deal agencies initially encountered resistance from the Supreme Court, which was then, like now, a reactionary institution that frowned on novelty. For one thing, when agencies issue regulations, they make law, which was the traditional prerogative of Congress. Moreover, the agencies were mostly overseen by the White House, which is not supposed to make law. And Congress also gave many regulatory agencies some autonomy — protecting staff from removal, for example — that seemed to infringe on the president’s authority to supervise the executive branch.

Eventually, common sense prevailed over these legalistic objections. Congress itself lacked the capacity to engage in the detailed regulation that is necessary to keep a modern economy humming while protecting workers and consumers. Agencies were needed. The executive branch was the sensible place to house agencies because the agencies combined both policymaking and enforcement functions. And agencies need some protection from political meddling.

By the 1980s, half a century after the New Deal, a political and legal consensus in favor of the administrative state had solidified. Left and right argued about how much regulation was needed, of course, but no one doubted the constitutional foundations of the administrative state — not even Justice Antonin Scalia, the leading conservative lawyer of the past half century and an academic expert on administrative law before he ascended to the bench.

But Brett Kavanaugh is a skeptic. And so are Neil Gorsuch, Donald Trump’s first appointment to the Supreme Court, and Clarence Thomas, who was appointed back in 1991. The views of Chief Justice John Roberts and Justice Samuel Alito are less clear, but their judicial opinions point in the same direction.


The conservative assault on the administrative state has four elements.

First, Justices Gorsuch and Thomas want to revive a discredited legal rule that was invoked by the Supreme Court in 1935 and then abandoned. The “nondelegation doctrine” says that Congress may not “delegate” its legislative power to administrative agencies — in other words, authorize agencies to make policy through regulation. That doctrine is at issue again in the Gundy case, where the challengers argue that Congress gave the attorney general too much discretion to set the rules for sex offenders.

Second, Justices Gorsuch, Kavanaugh and Thomas want to undermine a rule called the Chevron doctrine, after a 1984 Supreme Court case. That rule says that when an agency regulation is based on a reasonable interpretation of a statute, courts should “defer” to the agency. The Chevron rule codified existing judicial recognition of the core idea of the administrative state. Specialists — in environmental hazards, in credit markets, in workplace safety — should regulate. Generalist judges, who end up disagreeing with one another and causing administrative confusion, should keep their hands off. The Chevron doctrine is at issue in the Nielsen case, where the challengers have urged the court not to defer to the government’s interpretation of the immigration statute.

Third, the conservative justices dislike the principle of agency autonomy and have looked askance at job protections for agency officials.

Fourth, the conservative justices have endorsed a novel interpretation of the First Amendment that protects businesses from regulation — from campaign finance regulation, labor regulation and even regulations that require them to disclose information to consumers.

What is the basis for this radical change in the law? Justices Kavanaugh, Gorsuch and Thomas claim to be “originalists,” who believe that the court should strike down laws that violate the original understanding of the Constitution. But the founders did not bar Congress from creating administrative agencies or think that the First Amendment protected businesses from commercial regulation.

Many liberals think that the conservative justices are cat’s paws of business. But their claims to the contrary, businesses do not oppose regulation. Businesses constantly beseech the agencies to regulate — not themselves, but the other businesses that they compete with or depend on, and are harmed by. The new conservative jurisprudence may help some businesses in the short run but ultimately will undermine the legal structure in which they flourish.

The answer is both obvious and depressing. The modern conservative jurisprudence is an exercise in nostalgia, a yearning for pre-New Deal America when, supposedly, government was less oppressive and people were freer than they are today. You can see this nostalgia in the homilies to olden times in Justices Gorsuch’s and Kavanaugh’s lectures — and their insistence that answers to today’s challenges can be found in a theory of government invented in the 18th century by men wearing breeches and powdered wigs.

This jurisprudence appeals to many people in a populist era that distrusts experts, chafes at bureaucracy, fears change and longs for a simpler past. But like so much being peddled by ideologues and partisans these days, it’s a sham.

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LuckyR
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Re: How the U.S. Judicial System Has Become Politics By Other Means

Post by LuckyR » October 25th, 2018, 2:49 am

What does "has become" mean?
"As usual... it depends."

Dark Matter
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Re: How the U.S. Judicial System Has Become Politics By Other Means

Post by Dark Matter » October 25th, 2018, 3:18 am

Fooloso4 wrote:
October 23rd, 2018, 8:50 pm
While most of us take it for granted that judges, like everyone else, have their biases, a few days ago it came to light that there is a training camp for clerkship with federal judges run by the conservative Heritage Foundation with the backing of wealthy donors who remain anonymous. Just what goes on is a closely held and guarded secret with members required to sign a strict nondisclosure agreement swearing that you won’t reveal who teaches the academy or what they say, and vow that you will not use any information you receive “for any purpose contrary to the mission or interest of The Heritage Foundation.”

Both Neil Gorsuch and Brett Kavanaugh were selected by Trump from a list provided by the Federalist Society, another heavily funded conservative group.

According to Slate:
Heritage has dropped that pretense [of non-bias]: It demands that all participants in its “academy” use what they learn to advance the group’s mission, which corresponds almost perfectly with the current GOP platform. As NYU School of Law professor Melissa Murray noted, the Heritage academy is another phase in Republicans’ weaponization of the courts. It is designed to indoctrinate a new class of clerks with reactionary views that they are expected to implement through their work in the judiciary.
https://slate.com/news-and-politics/201 ... gkpQQd5qXs

For some updates: https://www.nytimes.com/2018/10/18/us/p ... ining.html

Despite the conservative rhetoric of upholding the Constitution they are destroying the balance of power, with McConnell refusing to consider Obama’s nominee Merrick Garland, who by most estimates is a moderate, pushing through Kavanaugh, Trump appointing a record number of federal judges from a list provided by the conservative Federalist Society, and many more to fill - McConnell declared confirming Trump’s nominees is his “top priority”. The conservative majority Supreme Court consistently voting in favor of corporations and conservative big money interests (Citizens United), questionable interpretations of “originalism” (Scalia’s majority decision on gun rights - Columbia v. Hiller). The Trump party is pushing back on gender and reproductive rights, and environmental protection has become secondary to wealth protection. There is no indication that increasingly stacked conservative courts are going to oppose the new Trump party. Winning comes first and truth and decency have become a liability. There are areas of hope for liberals and moderates (an endangered species), the midterm elections and the Mueller investigation, but the outcome of both are unknown for now.
A clear case of the pot calling the kettle black. Never mind the politics and the “balance of power.” What does the Constitution say? What does it say about abortion, marriage or the separation of church and state, for example? Answer: nothing. Liberal activist judges usurped the power to legislate, setting a pattern leading to what Thomas Jefferson warned against: judicial tyranny.

Fooloso4
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Re: How the U.S. Judicial System Has Become Politics By Other Means

Post by Fooloso4 » October 25th, 2018, 11:15 am

DM:
Never mind the politics and the “balance of power.” What does the Constitution say?
How can one forget about the balance of power and at the same time point to the Constitution? The first three Articles of the Constitution establish the three branches and the balance of power.
What does it say about abortion, marriage or the separation of church and state, for example? Answer: nothing.
The Constitution cannot cover every issue that comes before the court. The Constitution must be interpreted and decisions made in accord with it. The majority in Roe v. Wade cited the right to privacy in their decision. In his minority opinion Rehnquist cited “history and tradition”, but it is abortion and not its prohibition that rooted in history and tradition. When the Constitution was written, abortion was practiced and not prohibited.

Since the Constitution is silent on same-sex marriage the question becomes whether one’s rights are being violated by prohibiting it. The Supreme Court determined that they were. Kennedy wrote for the majority:
The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.
The First Amendment address the separation of Church and State. Conservative judges who favor an originalist interpretation look to the writings of Thomas Jefferson.
Liberal activist judges usurped the power to legislate, setting a pattern leading to what Thomas Jefferson warned against: judicial tyranny.
There is nothing in Jefferson’s writings to suggest that abortion should be illegal. Under English law abortion was legal in the American colonies until the time of “quickening” in the fetus.

It is not judicial tyranny to uphold the principle that all men are created equal and have an unalienable right to life, liberty and the pursuit of happiness, and, following Locke’s formulation, the right to property.

To claim that Jefferson would see the court’s upholding the principle of the separation of church and state as judicial tyranny is contrary to the evident facts.

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