The U.S. Supreme CourtThis section is a catch-all for material about the U.S. Supreme Court that is general in nature or that does not fit into any other heading.
Newsweek, 5/15/95, George Will: In this column Will educates us about some "sophistry" the U.S. Supreme court has been engaging in since 1937. It is about the Constitution's grant of power to Congress (Article I Section 8):
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.Apparently, before 1937 the Court interpreted this with some limits. In 1937, the Court abandoned all limits, which meant that Congress and the Court itself could meddle with ANYTHING related to interstate commerce. Will doesn't give any examples of the resulting abuse of power, except to imply that much of Roosevelt's New Deal legislation was upheld by the new loose interpretation of the commerce clause.
The reason it's in the news now is because of a recent Court decision (Lopez case) that very slightly reverses the trend toward loose interpretation, and only by a 5-4 vote. The specific question is: Can Congress make a law that criminalizes the possession of firearms in or near schools? Congress did just that, in the Gun-Free School Zones Act of 1990. This law was recently struck down by the 5-4 decision just mentioned. The law is firmly supported by the Clinton administration and by the more liberal Justices. In the suit, the government justified the law by the commerce clause. Justice Breyer and others bought this argument, which is that (according to Will) "schools can be considered to be engaged in commercial activities, and that therefore the possession of a gun by an individual near a school can be regulated by Congress because --- take a deep breath --- the gun might produce violence which would affect the economy by spreading insurance costs throughout the population, and by reducing the willingness of individuals to travel, and by injuring the learning environment and thus resulting in a less productive citizenry. ... Breyer's rationale could classify child rearing as a commercial activity that Congress can regulate."
Or having a gun anywhere. Or, as Will says, requiring all students to eat their spinach and do their homework. Or staying up late on a work night. Or drinking alcoholic beverages. (These actions might reduce your productivity).
You can imagine the arguments raging about this. If someone is against the Gun-Free Schools Zones Act, the liberal will say, "What? You mean you WANT guns in or near our schools?" Of course not. 40 states already have similar laws, and we have no problem with that. We just want the Constitution interpreted reasonably. If you allow someone to stretch it in a way you favor today, tomorrow someone just might stretch it in a way that you don't like. We should be a nation of laws, not of men (and their transient opinions). Well, there are always exceptions, but it should be in only the most extreme situations that a judge should knowingly misinterpret or ignore the law. But the U.S. Supreme Court does it routinely.
By the way, the Constitution also says, in Amendment 10, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This should tone down one's interpretation of the commerce clause.
But the Tenth Amendment is given virtually no weight by the recent Supreme Court. It constitutes a restriction of federal power, reserving all things not covered to the states. But the liberals hate that idea. They think that a return to states rights will bring back slavery. Well, let's face it, it's largely abortion rights that they're really worried about.
National Review, 6/26/95: Here's some evidence that the Supreme Court is willing and able to find whatever it wants to find in the Constitution.
In Plessy v. Ferguson in 1896, the court found that the Constitution PERMITS the assignment of children to schools on the basis of race.
In Brown v. Board of Education in 1954, the Court found that the Constitution PROHIBITS the assignment of children to schools on the basis of race.
In Swann v. Charlotte-Mecklenburg in 1971, the Court found that the Constitution REQUIRES the assignment of children to schools on the basis of race.
During that time, the Constitution did not change in any relevant respect.
As said elsewhere, the Court's decisions on prayer in public schools, on state aid to religious schools, and on religious symbols in public places are worse than arbitrary. They are in direct violation of the provision on which they purport to the based. (The First Amendment says that matters involving religion are forbidden from federal control, being left to the states, but the Court uses the First Amendment to invoke federal control of religion).
The Constitution explicitly contemplates capital punishment in three places. Nevertheless, Justices William Brennan, Thurgood Marshall, and Harry Blackmun have insisted that capital punishment is constitutionally prohibited.
Rising Tide, July-August 1995: One of the items in the Republican's Contract With America was to enact Congressional term limits. They tried for a constitutional amendment. The House voted 227 to 204 in favor, but this is 63 votes short of the 2/3 majority needed for a constitutional amendment.
Term limits are very popular with the people, but 85% of Democratic politicians are opposed to them.
Anyway, shortly after this, the U.S. Supreme Court gave Americans a slap in the face by finding STATE term limits for U.S. Congressmen unconstitutional. At the time, 23 states had congressional term limits. How could they come to this decision?
The Constitution lists three requirements for a member of Congress: Senators must be at least 30 years old, and House members 25. They must be American citizens, and they must reside in the state that they represent. In this 5/4 decision, the majority held that this meant that there could be no other requirements. This seems rather specious in itself, but is particularly so in view of the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The Clinton Administration argued before the Supreme Court in this case, taking the side against term limits. They argued that the framers intended that there be no other qualifications than the three in the Constitution. (Referring to what the framers wanted is rather hypocritical for a Democrat, because they don't give a hoot what the framers intended. They want an "activist" court. They consistently dun Republicans for wanting a Court that goes by the intent of the framers as specified in the wording they chose).
If the framers intended that there be no other requirements, they surely would have added a statement that no state may impose additional requirements. This I am confident of because, as noted by Justice Thomas, at the time the Constitution was adopted many states had other requirements. Virginia required that all candidates be property owners. Some states required not only that candidates be residents, but that they had to be residents for a certain amount of time.
In this 5/4 decision, two of the majority votes were by Clinton appointees.
National Review, 9/11/95: The press usually classifies Justice David Souter as a conservative, perhaps because he was appointed by Bush, and he was chosen as an alternative to Bork. However, according to this article:
In one week in July 1992, Souter dispelled the illusions of his former backers by voting to reaffirm Roe (in Casey v. Planned Parenthood) and to prohibit prayer at high-school graduation ceremonies (in Lee v. Weisman). Since then he has voted consistently with the liberal wing of the Court --- as, this year, on federalism, term limits, affirmative action, racial gerrymandering, school desegregation, and religion. In cases that split Justices Thomas and Stevens, the right and left poles of the Court, Souter was much more likely to side with Stevens than any other Justice --- including Clinton appointees Stephen Breyer and Ruth Bader Ginsburg.This is quite amazing to me, because Breyer is VERY liberal.
Newsweek, 10/9/95: An article here mentions the Lopez case, and says it's been 60 years since the court threw out a federal law as exceeding congressional power. 60 years! I guess they do have a lot of trouble admitting that the Constitution doesn't cover certain things.
Post Gram from Mrs. Stacey Koon, 10/18/95: The Supreme Court has refused to hear the case on double jeopardy or whether the officers used excessive force when Rodney King resisted arrest. Is the Supreme Court gutless or are they just siding with the liberals? I think this double jeopardy issue need resolving. For example, O.J. Simpson was recently found innocent of murdering Nicole Brown Simpson and Ron Goldberg. MANY people feel that was an unjust decision. Should OJ now be charged by the federal government for violating the victims' civil rights? Seems as just to me as it was in the Rodney King case. [Subsequently, OJ was charged by the families of Ron Goldman and Nicole Simpson with violating the victims' civil rights. On Feb. 4, 1997, he was found liable for these offenses. The jury's vote was unanimously "liable" to all eight questions.]
On the other hand, the Clinton administration is now seeking to extend Stacey Koon's prison term for an additional five years, and the Supreme Court will hear this.
The Koons will of course fight this, and their cost is estimated at $256,000. Meanwhile Rodney King is enjoying his $3.8 million in taxpayers' money.
National Review, 12/11/95: Wm. F. Buckley, Jr., in commenting on the increased heavy hand of the Federal Government, and the attendant loss of self-government, says:
Up until the late 1940s, there was no impediment to a community's prescribing what role should be played in its public schools by religion, and no signs, anywhere, of any movement to unite church and state. The Supreme Court, in this situation as in many others, has asserted its own power and, in doing so, diminished self-government. It is by now a cliche that the enthusiasm for an activist Court shown by liberals in the past generation has to do with their recognition that they cannot activate their agenda by legislation. Accordingly, they rely on the Court to transform their program into law.In another article in the same issue, John O'Sullivan strengthens the point of how the U.S. Supreme Court determines our laws, rather than simply interpreting them by deciding how they apply to various situations. He points out that if the Court does not like a law that Congress passes, it simply finds it unconstitutional. In his words:
For instance, a dangerous trend of modern politics is the transfer of power from democratic bodies, such as Congress, to unaccountable ones such as the courts, the bureaucracy, and even international gatherings like the UN conferences on the environment and women. In general, this has meant a transfer of power from conservative-leaning institutions to firmly liberal ones. Judicial review is now the principal constitutional device for nullifying conservative victories in elections and referenda --- see federal court decisions on Proposition 187, Colorado's gay-rights referendum, Arizona's English-only law, and Congress's flag-burning legislation.Depressing. Somehow the liberals have gotten control of the courts, and they use this power to block the will of the people as expressed in referenda and by Congress's legislation. Any liberal reading this will say, "Well, maybe those things ARE unconstitutional." I have a little familiarity with the cited cases, and in my opinion they are not unconstitutional. For example, in Proposition 187, the citizens of California voted to not pay for the education of illegal immigrants --- a perfectly sensible decision and clearly, in my opinion, not covered by the Constitution. But the Supreme Court has no respect for states' rights, and this is just another case of their making up law whenever they feel like it.
National Review, 12/25/95: This issue has a long article on the infamous Miranda rule, which dates from the Warren Court of the 60's. This rule requires police officers to say to a suspect, when arresting him,
You have the right to remain silent; what you say may be used against you; you have a right to an attorney; and you have a right to a free attorney if you cannot afford one.Of course the rule is designed to ensure that confessions are not coerced. It had been presumed until Miranda that if a suspect voluntarily confesses, that may be used against him in court. As an earlier Supreme Court said, "the Constitution is not at all offended when a guilty man stubs his toe. On the contrary, it is decent to hope that he will." But this outlook is not shared by the Court since Chief Justice Earl Warren.
The main problem with Miranda is not that police officers forget to say it --- that seldom happens. The main problem is that it leads to a substantially reduced confession rate. If a suspect was questioned before the warning, any statements would be suppressed. If he was questioned after the warning and after he had requested an attorney, any statements that were made prior to the attorney's arrival would be suppressed. After the attorney's arrival, of course, there would be no statements.
The article includes a lot of statistics about the reduction in confession rate after Miranda, e.g., from 49% to 15% in New York City. Compared to countries that don't have something like Miranda, our confession rate is lower, e.g., our rate is about 40% and Great Britain's in recent years has been from 61% to 85%. It is estimated that overall, Miranda has reduced the confession rate by about 16%. It is also estimated that a confession is essential for conviction in about 24% of cases. Multiplying, it appears that Miranda has resulted in about a 4% loss in convictions.
The strange thing is that the Supreme Court never said that Miranda, precisely, had to be followed. What Warren said, in his opinion, is "The Constitution does not require any specific code of procedures for protecting the privilege against self-incrimination during custodial interrogation. Congress and the States are free to develop their own safeguards for the privilege, so long as they are fully as effective [as the Miranda rules]" However, the Justice Department ordered United States Attorneys not to defend confessions unless they satisfied the Miranda standards, and somehow this filtered down to the State level --- this is not explained in the article.
So, Miranda could be overturned if anyone cares to challenge it. Whether that will happen I don't know, but in my opinion the Supreme Court did a lot of damage --- caused a lot of crime by repeat offenders --- with it's silly, excessive, rule. Since the rule is not required by the Constitution (by the Supreme Court's own admission), what has happened in effect is that the Supreme Court has made up a new law, even though they may not have intended to do so. In my opinion, the Constitution also does not guarantee every citizen a free attorney. I really don't think the Supreme Court has the right to order that taxpayer's money be spent in this way.
Reporter Dispatch, 1/9/96, George Will's column:
In 1971, the Supreme Court concocted the idea of illegal discrimination by "disparate impact" --- discrimination without any intent to discriminate. A utility company was found guilty of violating the 1964 Civil Rights Act because the company's hiring policies required employees to have high school diplomas and a minimum score on a standardized intelligence test.Now in New York, the MTA wants to increase the subway fare from $1.25 to $1.50. But detractors are claiming that this has a disparate effect on the poor, and hence on minorities, and hence is illegal.
It was a ridiculous Court decision and its silliness is being felt again. Will closes with this:
The mere fact that the New York fare case is still alive, and may spawn emulative litigation, suggests that the nation is still slouching toward government by judiciary, which will just be anarchy in a stately setting.
National Review, 1/29/96:
Some time ago, North Miami passed a law, upheld by a Florida state court, disallowing applications for city jobs from anyone who had smoked in the past year. 52-year-old typist Arlene Kurtz challenged the ruling, but the Supreme Court has now declared that it was rational for North Miami to discriminate against her, because smokers get sick more often than non-smokers.Oh, boy! What a decision! I have observed that women are out sick more often than men. I haven't seen the results of a study on this, because to do one would be very un-PC. But I think it's obvious. So, it is now legal to disallow women from any job. And of course people with AIDS. And the obese. Heck, real skinny alcoholic-looking people too. And motorcyclists, skiers, spelunkers, scuba divers, mountain climbers, football players, etc.; they all have a high accident rate. And anyone over about 50.
How did we ever get a Supreme Court full of such ignoramuses?
Reporter Dispatch, 3/26/96: The Supreme Court agreed yesterday to review whether states can make English their official language and require its use for most government actions.
This seems to me to be so clearly a matter of states' rights, that the Supreme Court should not even bother reviewing it. I'll admit that if a state wanted to make Spanish its official language, and use it for most government actions, I would be against that. But it's not a Constitutional matter. If some state were to propose that, then I would hope that Congress would pass a federal law that forbids it. But in the absence of that, Spanish would be that state's official language.
Reporter Dispatch, 4/30/96, George Will's column: Supreme Court Justice Clarence Thomas drives a Corvette --- a 1990 ZR1 with 420 horsepower. Its license plate reads "Res Ipsa," or "It speaks for itself." Probably the other justices drive Japanese cars and Volvos.
National Review, 9/16/96: In Harlem, New York, a "respected educational institution" has produced a promising plan for an all-girl school. The school district favors it, and a philanthropist has offered to help fund it.
BUT, the ACLU says the plan cannot be implemented, no matter how promising it may be, because it's unconstitutional. If this is brought before the Supreme Court, they may very well side with the ACLU. After all, they recently found state-supported all-male schools unconstitutional (VMI; presumed to also apply to The Citadel). On the other hand, Harlem's action is intended to help black women, so it may be allowed --- application of our laws is not even-handed anymore. The current crop of justices is quite capable of finding some obscure reason why the Constitution decrees that we may not have an all-male military academy, but we may have an all-girl school in Harlem.
Be that as it may, the definite possibility that having an all-girl public school is unconstitutional illustrates a dangerous trend. From the article:
In a democracy, issues of public policy are decided by the people .... According to the ACLU, however, most questions of public policy have already been decided by the Constitution. This means as a practical matter that they are to be decided by judges and ultimately by the Supreme Court for the nation as a whole.
National Review, 9/16/96: This issue has a thoughtful four-page article by Robert H. Bork entitled, "Can Democratic Government Survive?" His point is that our courts have become so powerful and sweeping in their decisions that we are no longer governed by people we elect, but rather by unelected and tenured judges.
Here are a few quotes from his article.
Modern liberalism is fundamentally at odds with democratic government because it demands results that ordinary people would not freely choose. Liberals must govern, therefore, through institutions that are largely insulated from the popular will.What can we do about it? Bork says, "The only practical way of reining in the Supreme Court is a constitutional amendment making its rulings subject to democratic review." He doesn't elaborate. Would the review be done directly by the people by voting? Or by Congress? It seems to me there's another way: impeachment. We should have an organization, like the ACLU in some ways, that initiates impeachment proceedings against any justice who is obviously making up law. This would be almost all of the justices right now.
The article is accompanied by a sidebar by Linda Bridges in which she says:
... the legal establishment says quite openly that it cares not about the truth, but about "procedural safeguards." If the arresting policeman made the slightest slip in collecting evidence, the evidence is withheld from the jury: The fact-finder must be misled concerning the facts.