The Rehnquist Trio

Jack Mercer (some random guy who apparently stumbled across my blog) writes in the comments section of this post:

Hey Herm, put your money where your mouth is--here's a challenge. Name ONE incorrect decision made by Scalia, Thomas or Rehnquist. And PLEASE don't give me that kook conspiracy crap from the 2000 election.

Any man who is under 30, and is not a liberal, has not heart; and any man who is over 30, and is not a conservative, has no brains. - Winston Churchill

Well, if I had a very large readership (like, say, that of Atrios or Kevin Drum’s blog) I would just let the trolls be trolls. But I don’t, and so engage I will!

(Note: I wrote most of this post while I was in South Dakota, and I had meant to fine-tune it a bit prior to posting, but due to time crunches I thought I would just get it out in its current form, so sorry about the length.)

Obviously the question here revolves around the definition of the word “wrong.” By what standards do we determine that a judicial vote is “wrong?” There are several options we could choose from, such as:

1) A decision resulting in an outcome that was/is/would be obviously to the country’s detriment.

2) A decision that flies in the face of the particular justice’s constitutional theories and previous voting record or established precedent.

3) A decision that is an obvious misinterpretation of the constitution, SC decisions, etc.

Even with the “obvious” caveats, these standards are still open to interpretation and individuals’ perceptions and beliefs about what is and should be in this country and how the Supreme Court should arrive at their decisions. However, it is what I will try to limit myself to (if I went with my own political beliefs and vision, we could be here all day).

For Rehnquist, I will note in general that his judicial record has revolved around two themes: the limitation of federal powers, and the limitation of civil liberties and rights. The former is one that I personally disagree with in general, but not in any strict sense; it depends on the issue in question. The latter is something that is fairly abhorrent to me as well as a large chunk of Americans.

For Scalia, I will note that, with some exceptions (one very distinct in the Bush v. Gore case), his voting record has been pretty consistent; he appears to stick to his philosophy. I respect that he does so, but I don’t agree with his philosophy, which revolves around federalism, conservative notions of sex and morality, and murky notions of original intent.

For Thomas… what is there really to say? Similar to Dubya and the office of the president, there probably hasn’t been a SC justice who was more unqualified to hold the position. And he certainly hasn’t made any strides in proving anyone wrong on this point. Alarmingly, he accepted the claim of inherent authority in the Hamdi v. Bush case (fortunately, he was the only one). Hell, he often falls asleep during arguments and almost never comments or makes any questions, and his written opinions are pithy at best and lack much in the way of achievement. While a guy like Scalia might be a bright (if misguided) person, Clarence is simply a waste of space.

Anyway, in terms of specific decisions, I will go ahead and list a few without much distinction between the three justices since they pretty much vote as one unit (exceptions are usually from periods when they were not all on the bench together):

1) The Rehnquist Trio voted in the majority to affirm California’s right to the “Three Strikes Law.” If I remember correctly, this law was created as the result of a brutal rape and murder of a child at the hands of a multiple felon out on parole, and the resulting outcry led to its creation (by proposition, which is another retarded component of CA law that I could spend a lot of time on).

However, the law was created with brushstrokes that were far too broad, and as a result there were what would reasonably be called quite unintended consequences. For instance, would you lock up a guy convicted three times of petty non-violent theft? Such was the case in Lochyer v. Andrade; Andrade was sentenced to life in prison without the possibility of parole for at least 50 years for his third strike of stealing $153 worth of videotapes (petty theft can be elevated to a felony in the California penal code).

The Three Strikes Law, when applied in this manner, violates the constitution in not one but two ways: it is most certainly cruel and inhumane punishment, and is also a form of double jeopardy (since upon the third strike the defendant is effectively being sentenced a second time for the previous two strikes). Using the standards delineated above, this violates #1 and #3.

2) The Rehnquist Trio has been staunch supporters of capital punishment, particularly Rehnquist. I have all manner of bad things to say about the death penalty ranging from moral to systematic to pragmatic, but all that aside, it is difficult to think of any form of sentencing outside of outright torture which better conforms to the definition of cruel and inhumane punishment. Rehnquist has gone so far as to write an opinion essentially stating that the constitution is not violated when a state executes an innocent man (Collins v. Herrera). Their actions in the case of Robert Alton Harris are particularly alarming (and wrong based on the law). The fact that we stand only with Japan as the only industrialized western nations with that form of punishment is embarrassing. And it doesn’t work anyway. Violates #1, #2 (in some cases), and #3.

3) The Rehnquist Trio weakened the Free Exercise clause that requires an exacting scrutiny if a particular law happens to inhibit religious exercise (Oregon Employment Division v. Smith). Ironically, they did it in a way that could negative impact many Judeo-Christian religions as well as religions that are more obscure in this country. Essentially, the SC refused to apply the proper test to a Free Exercise case (which probably would have sufficiently settled things) and invented their own test. This drastic change lead to Congress passing the Religious Freedom Restoration Act, but that was also struck down (City of Boerne v. Florida); the SC felt that religious discrimination was not widespread enough to allow Congress the latitude to protect religious freedom in this fashion despite prior SC conclusions (Katzenbach v. Morgan) that empowers Congress to do so as long as rights are being expanded and not contracted.

The purpose of these federal acts was to safeguard freedom of religious exercise in this country (note that this is not a case of “separation of church and state,” but is something even more basic and fundamental to our country). Furthermore, this vote also violated established precedent (by applying a radically new test), and weakened other important acts of Congress such as the Americans with Disabilities Act and the Voting Rights Act due to the weakening of the prior Katzenbach decision. Violates #1, #2, and #3.

4) The Rehnquist Trio voted in the majority regarding the Florida election case (Bush v. Gore) in 2000. Now Jack referred to opposition of this decision as “conspiracy crap;” however, regardless of what politics you hold, the decision made in this case was wrong by ideologically neutral constitutional standards.

Simply put, the SC decision was a flat violation of states’ rights. The states decide how they send their electoral votes to Congress. Period. All they have to do by federal standards is get them there in time for the electoral vote count, and if they failed to do so, there were multiple mechanisms in place to ensure that the election would be decided. Pundits during this event often referred to this as a “constitutional crisis,” which is really sad since the remarkable beauty of the situation was that the framers of the constitution had already anticipated possible problems like this and thus installed rules for how to proceed.

Anyway, this was one period resulted in the highest and lowest points of my respect for the SC. I was certainly wary of many of the justices’ ability to keep their political ideology in check, and when they arrived at the (proper) decision to kick the matter back to the state, I was overjoyed and was given hope regarding the wisdom and neutrality of the SC. However, as the situation continued, they lose their nerve and broke with their former decision (and in the case of the Rehnquist Trio, their constitutional philosophy and previous voting records) in the second case, deciding against letting Florida handle the matter itself. Regardless of who legitimately won the recounts (Gore would have won if a statewide count had been made, Bush won in other more county-specific scenarios), it should have been Florida, not the SC, that decided which electors to send to Congress. It is one of the most clear-cut cases of a violation of states’ rights, obviously and egregiously violates standards #2 and #3, and subjectively violates #1.

5) The Rehnquist Trio often shows disdain for the First Amendment. In one case, a porn shop owner was found guilty of having seven items that violated obscenity laws (Alexander v. United States). He was served with a stiff fine and jail sentence, but under the guise of the RICO acts, the feds destroyed the contents of all his stores, the total worth of which was between $9 million (federal estimate) and $25 million (storeowner estimate). This appears to be an obvious case of prior restraint since not only the 7 items were destroyed, but also his entire inventory (Prior Restraint is an attempt to prevent publication or broadcast of a statement and is a violation of the first amendment with a few exceptions). Rehnquist marginalized the first amendment by stating that prior restraint only applies when there are administrative or judicial orders applied prior to the time that the communications are to occur.

One can imagine countless scenarios where one might thus be restricted in their speech without legal recourse (if the restraint was not prior to the communication and/or was not a result of an injunction or restraining order). Kennedy lit into his colleagues in the majority by reading his dissenting opinion from the bench and signing it with “I dissent” rather than “I respectfully dissent.” (An aside: Ginsberg also took this route of signing her dissent in Bush v. Gore). His opinion noted that an innocuous publication or bookstore could thus have its entire inventories destroyed for a prior speech offense, and further explains that the threat of federal intervention of this kind inhibits free expression as much as the intervention itself. However, the SC found in favor of the feds… violates #2 and #3, and subjectively #1.

I am getting a little tired at this point, and the post is already quite long, so I am going to make three more quick notes before I conclude:

6) The Rehnquist Trio has gutted the 4th amendment in ruling in favor of programs like randomized drug testing and profiling (Von Rahb v. National Treasury Employee’s Union). Violates #3 and subjectively #1.

7) The Rehnquist Trio has gone against SC precedent and striped the fundamental right of visitation and custody of many parents (particularly unmarried fathers; Michael H. v. Gerald D.). Violates #1 and #2.

8) The Rehnquist Trio has gone against acts ending discrimination such as repealing anti-sodomy laws, desegregation, and affirmative action. Violates #1 and #2.

I could go on with more esoteric cases (there is a passel which violate #2 but would take a long time to explain), and as I said before I could certainly continue with more on their voting record using a more loose set of standards (such as what I find personally abhorrent, examples being their acts against the Brady Bill, anti-sodomy laws, and affirmative action, the latter which also violates #2 in some ways). The court as a whole has also run yellow of late as they have weakly punted on the California Pledge of Allegiance case and Cheney’s secret Energy Task Force.

But as bad as these decisions are, I agree with those who say that the real impact of the Rehnquist Court will not be felt until the next court is assembled. Who will take Rehnquist’s place (both on the bench and as Chief Justice)? Scalia’s? Kennedy’s? Stevens’? O’Conner’s? So many of these decisions were 5-4, and if the court is able to conclude such actions with that composition then even a little shift farther to the right will send us tumbling… Roe v. Wade might end up being a minor concern in such a case.(*)

Anyway… Mr. Mercer: Challenge met.

P.S. I am always amused when folks invoke the age/political ideology quote from Churchill in the manner that Mercer used. As Robert Rubin once observed, all three of the major parties in Great Britain (Liberal, Labor, Tory) have several tenants that fit within the Democratic Party in the United States. In other words, the notions of “liberal” and “conservative” are very different on the other side of the Atlantic. Churchill himself employed a modern version of “one nation” conservatism in which he worked with liberals on social capital items like health care and other issues. Liberal conservatives (often termed “New Conservatives) like Dwight Eisenhower and conservative liberals like Arthur Schlesinger Jr. come from similar molds and traditions begun by Lincoln and Teddy Roosevelt. As such, I certainly don’t take this as a repudiation of my political ideology. Besides, I am not 30 years old anyways (yet… it’s getting damn close).

Update: Here’s a little item on Rehnquist… and another. They have nothing to do about his judicial decisions, but I thought I would include it nonetheless.

Update: And more, this time on his role as a clerk on Plessy v. Ferguson (a little summary of his civil rights record can be found here)

Update: Just prior to posting this, I found a nice little bit on Thomas and Scalia from the Center for American Progress. I haven’t researched all their arguments yet, but I thought I would include it.

*Note that I while I haven’t provided links in my arguments, they are based on my own knowledge, the writings of Erwin Chemerinsky (author of The Wife’s constitutional law text and legal counsel of Andrade in the Lockyer case), LA Times court observer David Savage, Mark Tushnet of Georgetown Law, various law school and general law information websites, and small bits from random AP articles. They were tempered in the fires of opposing viewpoints provided via examination of opinions of such organizations as the Federalist Society (which Rehnquist co-founded).