This Dishonorable Court

June 11, 2019

Last week we talked about ways to block appointments that could make this Court even worse. Is it worth it?

First, if allowed to fester, patterns of Court decisions can last for long periods.

In 1876, the Court denied any federal jurisdiction to prosecute racially motivated violence intended to change political control of government, setting the stage for segregation and intimidation which the Court finally began to address 64 years later. In 1883 the Supreme Court held that Congress had no power to ban racial discrimination in public accommodations. That remained the law until Congress and President Johnson took the Court on in 1964, a reign of discrimination and violence which continues to corrupt race relations.

Later in the nineteenth century, the Court set itself against the economic ideas of the Populists, Progressives and many state governments. That finally changed in 1937, after almost half a century, by which time President Roosevelt was on his way to appointing the entire membership of the Supreme Court.

Republicans like to blame the Warren Court for everything they don’t like but it was the Burger Court, with four Nixon appointees, that decided Roe v. Wade. Abortion foes still struggle to reverse it after nearly half a century.

In other words, patterns of judicial decisions can last for long periods despite concerted efforts to reverse them.

Second, what the Court has been doing under Chief Justice Roberts is very damaging to American decency and democracy.

In an infamous case, Chief Justice Rehnquist wrote that even if evidence turns up after a defendant had been convicted and shows that the defendant was probably innocent, the conviction was still final and no hearing to consider the new evidence is required.  So the petitioner, Leonel Herrera, was executed. We call the members of the Supreme Court “justices.” But justice had no sway in their thinking. The Court has revisited the issue several times, but it has not changed the law.

Instead the Court keeps getting worse, moving political power away from ordinary Americans. They let states monkey with election arrangements to prevent opposition supporters from voting. They protect partisan gerrymandering of legislative districts in order to protect incumbent parties.

While eviscerating ordinary voters’ rights, they protect the use of corporate cash to control the political process while attacking the political voice of American workers by shredding their unions’ economic base. That combination of support for corporate power and decimation of everyone else’s has been catastrophic for the electoral strength of ordinary Americans.

Beyond its blatant political partisanship, the Court repeatedly attacks the pocket books of ordinary Americans, protecting corporations from responsibility for the harms they do to customers and workers, protecting them from antitrust laws, undercutting employee wages and hours laws, and making us responsible for contract provisions that we may never have seen much less read or understood or had any realistic choice to decline.

The conservative majority has not been friendly to environmental protections that affect our air, water and warm our globe. Heaven forbid corporations should be responsible for the damage they do.

Past experience indicates that these decisions and the damage they are doing to American democracy and the economic system can fester for a very long time. But these problems are time bombs, so the nation can’t wait.


To Protect the Court

June 4, 2019

There’s a lot going on this week. I’ve put on my blog some information about funding legal services for the asylum-seeking immigrants at the Mexican-American border and on the struggle for marijuana legalization in New York.

Now let me turn to the Court. Donald Trump and Mitch McConnell are making noises about approving new Supreme Court judges as soon as possible, regardless of whether it is an election year, the Republican excuse for not taking up the Garland nomination.

By the way, the Constitution does not call them “justices.” That strikes me as a title that should be earned and too many members of this Court have not earned the right to claim that they do justice. The difference between judging and doing justice matters. So the issue is whether we can stop appointing people to perpetrate injustice under the robes of Supreme Court judges?

Democrats do not control the Senate. According to Art. II, sec. 2, the U.S. Senate has the constitutional power to reject the president’s appointment of “Judges of the Supreme Court” because they must be made “by and with the Advice and Consent of the Senate.” The House does not have that power.

Case closed? Is the House out of the game? Absolutely not because it does not have to fund new appointments. Once a judge is approved, the House loses its power to eliminate or diminish the salary of Supreme Court judges. Article III, sec. 1 reads in relevant part that “The Judges … shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.”

But the constitutional provision refers to judges after they have been confirmed and are holding their offices as judges. Before that happens, many changes can take place, in the number of judges on the Court and in the terms of their compensation. The Constitution does not specify the number of judges, and the Supreme Court has varied from five to ten. Nor does the Constitution specify the compensation of judges except that it may not be diminished during their term in office.

The House of Representatives actually gets regular cracks at those apples. Aside from proposing changes in the laws, perhaps the most significant is in the budget process. Another clause of the Constitution, Article I, section 9, par. 7, reads in part, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

So in any new appropriations bill, the House would have to go along to provide for any compensation whatever for a new Supreme Court judge. Beyond that, of course, there is the possibility of all kinds of negotiations in which the House might condition appropriations on having its will with respect to the size of the Court.

The real issues are whether the House is willing to play hardball, and whether the public which has been offended by the treatment of Supreme Court nominations by McConnell, the Senate and the president, would back them up. That is a political judgment and advantages might go either way, but it is not a constitutional issue. The House is not a rug to be stepped on; it is a necessary player in judicial politics.



Conspiracy Theorists and Ginsburg’s Illness

June 3, 2019

Stumbled on a case study of conspiracy theorists who claimed Ginsburg had died, Jon Levitan and Andrew Hamm, Case study on the Ginsburg conspiracy theories in action, SCOTUSblog (Mar. 15, 2019, 11:37 AM).  Have a good laugh and then a good cry. The story is funny so long as you forget how sad and dangerous these fabricators are. Need I add that the study of these conspiracy theories was conducted by SCOTUSblog, a well respected source for news on the Court.

Marijuana Justice

June 3, 2019

On a recent NYCLU lobby day, I had the privilege of speaking with several members of the NY legislature including my own representatives in both the State Senate and Assembly. I know that there is a lot of feeling in the legislature that it is time to stop criminalizing generations of minorities for sales of marijuana.

There are perfectly appropriate ways to regulate sales without condemning and criminalizing people for sales that are purely harmless. There is a market for perfectly decent uses of marijuana. It is absolutely appropriate that this be done in a way that takes account of racial justice and provides pathways for people in the minority communities to participate instead of saying marijuana is good now and then excluding the minority community from the benefits. The history of regulation of marijuana has been a history of discrimination. It’s time to undo as much of that as possible.

Let me suggest typing “” into your computer. Of course search engines are masters at taking precise requests and giving you a list of choices that don’t include what you asked for. I tried many formulas and this one worked. Make sure you get Start Smart New York but don’t type that – type “” or the search engines will fight you – that of course is another battle.

And when you get, you might take a look at their suggestions and consider calling your representatives. I don’t know how many of you have done that, but it should not surprise you that your representatives are happy to hear from you. They want to know what you think. Give them that pleasure.

Funding Legal Work at the Mexican-American Border

June 2, 2019

At the NYCLU Annual Meeting a couple of weeks ago, we had an excellent discussion of the problems at the U.S. borders. Two of the attorneys who are actively working at the Mexican-American border in Texas came to talk with us: Lorelei Williams, Director of Immigration & LGBTQ/HIV Advocacy at Staten Island Legal Services, and Claire Thomas, the Director of the Asylum Clinic at New York Law School. Zach Ahmad came up from the main office of NYCLU and spoke about problems on the New York border. (We were supposed to hear from Albany Law’s Sarah Rogerson but, unfortunately, she was ill and couldn’t come.)

What Claire Thomas and Lorilei Williams described was harrowing and painful to hear. I had conversations with both women, but Lorilei and I got into a conversation about how the work is being funded. Programs on immigration law are not necessarily supporting lawyers to head for the border. The absence of counsel for the thousands stranded at the border is a major problem. I was particularly impressed by the fact that many of the attorneys are going down there on their own dime. Because of that, I asked Lorilei to send me some info about which organizations are supporting lawyers at the border and could use help for this humanitarian work. This is what she sent me:

Hi Stephen,

Thanks so much for reaching out, and for your kind words. The draft post looks great- thank you for sharing. Here are two great resources with more articles and places to donate/volunteer:

A few other additions would be to donate to Annunciation House or Santa Fe Dreamers Project as well.

Thanks so much for your support. Every little bit helps!


Lorilei A. Williams,

Director, Immigration & LGBTQ/HIV Advocacy,
Staten Island Legal Services

After hearing from Lorilei, my friend, Henry Freedman, who ran the National Center for Law and Economic Justice for some forty years, wrote to suggest another, the Immigration Justice Campaign,, For novices in the immigration field, it provides CLE, written and visual training materials and resources, plus mentoring from an experienced immigration lawyer, and insurance coverage can be provided for retired attorneys. Henry wrote me that he and his wife, a former NY State appellate judge, have used the program very successfully in Immigration Court asylum cases.


No Time for Moderates

May 27, 2019

We’re suffering a worldwide attack on tolerance, the brotherhood and sisterhood of all peoples, and the principles of democracy and equality that make it possible to share the country and much of the globe in peace. The results, from Brexit to White Nationalism, the resurgence of Nazism in Europe, intolerance in India and China and ethnic warfare over the scraps of economic failure endanger us all. America, founded on tolerance, equality and democracy, should be leading the world out of this dangerous morass instead of smoothing the path to hell.

Commentators have long seen and feared the separation of national politics from the needs of the great mass of working people. Both national parties partook of that separation. Republicans revere Reagan but he crippled the unions, the organizations of working men and women. And claiming that government is the problem, not the solution, Reagan crippled efforts to address their problems. Democrats followed national economic trends without paying enough attention to the dislocations among working people. That combination made white working people feel left out, instead of uniting us in pursuit of a better world for everybody.

That’s recent history. Much further back, Alexis de Tocqueville, famous French nobleman, toured the U.S. in the 1830s and had the genius to see far into this country’s future. Tocqueville told us that democracy required widespread economic well-being.  The very first paragraph of the U.S. Constitution talks about the “general welfare” but many poo-poo it as merely precatory language, not authorizing government to take care of the people. Those who poo-poo that language think the Constitution is merely about freedom from government rather than the creation of a government capable of providing for the people. Their misreading of history is perverse and dangerous.

Seymour Martin Lipset, one of the twentieth century’s great political scientists, pointed to the world-wide connection between democracy and economic welfare. Germany, which had been a great economic power, lost its illustrious and democratic Weimar Constitution after going through economic hell between the world wars.

President Franklin Delano Roosevelt told America that he was saving capitalism by protecting the great mass of Americans from the ways capitalism went awry. The big shots of industry couldn’t understand that their behavior wasn’t sacrosanct. They couldn’t understand that capitalism too has to operate by standards of ethics and principles of sharing. Roosevelt was the architect of American economic success for the next half century precisely because he put in place the rules by which it could operate for the benefit of the entire country, not merely the captains of industry and finance. We have forgotten and dishonored Roosevelt’s legacy of making government serve the people. He rescued this country from the Great Depression, “promote[d] the general Welfare,” as the Constitution provided, and set the country on a sound economic keel, a legacy that would honor any leader.  Fools now sneeze at his accomplishment so they can promote something new – poverty for all.

There’ve been plenty of warnings. Now we have a chance. It’s not enough to beat Trump. We need a victory for the principle that everyone counts and everyone needs to be protected. It doesn’t matter whether it’s called “socialism” or something else. The idea that it’s a bad idea to take care of each other has got to go – permanently – and all the conservative nonsense about the damage of helping each other. Either we care for each other or we will suffer a war of all against all regardless of what you call it – fascism, communism, totalitarianism – the results won’t be good for anyone except the oligarchs.

Forget “moderate” Democrats. If “radical” describes the philosophy of taking care of each other, we need it NOW. Bless all the people with the decency and humanity to care about their neighbors, fellow citizens and fellow human beings. The blessed are those who care.

– This commentary was broadcast on WAMC Northeast Report, May 28, 2019.

For Elizabeth Warren

May 21, 2019

We’ve all been told the story of John Smith and Pocahontas, and pass it on with pride and pleasure. Although the actual events probably differed in some respects from the story we’re told, it speaks well of us that we remember her bravery and the love and marriage of Pocahontas and John Rolfe. They had a son, Thomas, who was brought up by English relatives after Pocahontas died there. I’ve often wondered how they described his heritage and hope they remembered his Native American mother with pride and pleasure. Children were born from similar marriages through much of the American frontier. I hope their descendants think of their native ancestors with the same warmth. In that vein, I was happy to discover that Senator Warren’s family took pleasure in knowing that a native union was blended into their family story, and that Senator Warren grew up thinking about it with pleasure. Some have pummeled her for it, but I think her attitude says more about her kindness and decency.

I met Warren years ago when she came to Albany Law to give a pair of talks, one over lunch to the faculty and another to the wider law school community. Many of us got to talk with her informally. She was fighting changes to the bankruptcy code that would make it even harsher and crueler.

I will never forget the way that she showed us all how legal rules were compounding the damage to people who had just suffered unforeseen events, like an illness. She showed us with great clarity that they weren’t deadbeats. They’d had a piece of bad luck and the rules made things worse, not better. Many women filed for bankruptcy after a divorce. Many tried to go to work, finish schooling or start a business but were squeezed too tightly to make it work. The bankruptcy code was supposed to give people a second chance. But the changes being proposed, and passed about a decade later, made it even harder for people, other than the president and his friends, to get that second chance.

The woman I met that day was a warm human being, who cared about people with ordinary incomes. That’s what I want to see in a representative for any office – someone whose heart is in the right place, whose head gives them the tools to straighten things out, and who is prepared to devote her energy toward getting things right. It couldn’t be clearer to me that that’s Elizabeth Warren.

On the national stage since I had the pleasure of meeting and breaking bread with her, she has fought for rules that would protect the great majority of us, and she has fought against those who have raped the rest of us of our savings, our homes and our livelihoods. Some people, with the resources to take the rest of us for a ride, opposed letting her run anything in Washington, but that only confirmed my judgment that she is the right person to lead us to a stronger, better, more just, America. I would feel blessed and honored to have Elizabeth Warren as my president.

Let me add that her being a woman has never made any difference to me. I’ve worked for men and women, people of color and people whose skin looks like mine. I’ve worked for wonderful, memorable people in every category. Elizabeth Warren is one of the wonderful ones.

Incidentally, I didn’t realize it at the time, but her daughter and I both gave talks a year or so ago at a meeting run by an organization her daughter heads. Senator Warren obviously passed her values and intelligence on to the next generation. I also happen to know Senator Warren’s husband, Bruce Mann. He’s been active in a professional association of legal historians of which I am also a member. Bruce and I have chatted occasionally. In this case, I should make it clear, and whatever your feelings about puns, I’m not only rooting for Elizabeth Warren to become our president, I’m also rooting for her husband, Bruce Mann, to be first Mann in the White House.

— This commentary was broadcast on WAMC Northeast Report, May 21, 2019.


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