Friday, June 29, 2012

Activist Judges Of The Conservative Sort - 2

"Once upon a time ..."
On this date in 2009 Dredd Blog reviewed the issue of judicial activism.

Yesterday's decisions at the Supreme Court, and many upcoming decisions, will bring that notion up again from time to time.

We review to remember the repetitive nature of some of the issues of government, that do not always just fade into the past.

Here is the text of that 2009 post:

We asked the question a while back whether the conservative judges, who have the majority on federal courts for the first time since 1937, would be what they claim to eschew, namely being activists. Today at the U.S. Supreme Court in Ricci v DeStefano, 557 US ___(2009), Case #07-1748, a case from the U.S. Court of Appeals, Second Circuit, in which Supreme Court nominee Sotomayor took part, the conservative Supremes got active.

They created some new law which did not previously exist, which was not enacted by congress, and which did not exist at the time Sotomayor and two other Judges of the Second Court of Appeals made their decision.

The Supremes did not reach any constitutional issue, nor had the Second Circuit in its decision earlier, based on the doctrine of avoiding constitutional decisions when statutory claims can be used to fashion a remedy instead, holding:
Thus, the Court adopts the strong-basis-in evidence standard as a matter of statutory construction in order to resolve any conflict between Title VII’s disparate-treatment and disparate-impact provisions.
(ibid, Section II(B) near end). That "strong-basis-in evidence standard" means that cities like New Haven, and other such defendants in these type cases, would have to show they would loose a case if sued, not simply that they could or would be sued.

Did the majority of the court think about what happens when you ask your lawyer if you are going to win a case or not?

"Nothing is guaranteed" is likely to be the answer, so one wonders how the city is going to be sure they will loose a case before they take certain actions to correct what would bring on that loss?

Anyway, the next time the Second Circuit, or any other Circuit Court of Appeals, deals with the issue they will have some new law to help them decide; which is something Sotomayor and the other two Second Circuit Judges did not have when they ruled in this case..

Take notice conservatives, judicial activism is not limited to "those activist liberals" you condemn all the time for being "activist judges", because sometimes even you conservatives in the majority have to make new law.

Conservatives in congress don't call it that of course, they call conservative decisions like this "strict constructionism".

Several journalists in the news media (e.g. Chuck Todd, White House Correspondent for MSNBC) have picked up on the activism in this decision, however, I have yet to notice anyone in the MSM picking up on the heart of the dissent.

Therefore here is a quote from the Ginsburg dissent, which was joined by 3 of the other Justices:
The Court’s recitation of the facts leaves out important parts of the story. Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow. In extending Title VII to state and local government employers in 1972, Congress took note of a U. S. Commission on Civil Rights (USCCR) report finding racial discrimination in municipal employment even “more pervasive than in the private sector.” H. R. Rep. No. 92–238, p. 17 (1971). According to the report, overt racism was partly to blame, but so too was a failure on the part of municipal employers to apply merit-based employment principles. In making hiring and promotion decisions, public employers often “rel[ied] on criteria unrelated to job performance,” including nepotism or political patronage. 118 Cong. Rec. 1817 (1972). Such flawed selection methods served to entrench preexisting racial hierarchies. The USCCR report singled out police and fire departments for having “[b]arriers to equal employment … greater … than in any other area of State or local government,” with African-Americans “hold[ing] almost no positions in the officer ranks.” Ibid. See also National Commission on Fire Prevention and Control, America Burning 5 (1973) (“Racial minorities are under-represented in the fire departments in nearly every community in which they live.”).

The city of New Haven (City) was no exception. In the early 1970’s, African-Americans and Hispanics composed 30 percent of New Haven’s population, but only 3.6 percent of the City’s 502 firefighters. The racial disparity in the officer ranks was even more pronounced: “[O]f the 107 officers in the Department only one was black, and he held the lowest rank above private.” Firebird Soc. of New Haven, Inc. v. New Haven Bd. of Fire Comm’rs, 66 F. R. D. 457, 460 (Conn. 1975).
(Ginsburg Dissent, emphasis added). Some people remember that the blacks did not make slaves of the whites or have power to discriminate against them as a matter of law for a hundred or so years.

Most historians realize that whites enslaved blacks. So the point of the statute was to push back against whites, not against blacks, since it was blacks that were horribly enslaved for generations.

None of us want whites, blacks, reds, yellows, or any other race to be discriminated against in the abstract. But we have not been able to get what we want in our history.

Instead we have had the most horrendous and long lasting slavery and racial discrimination imaginable (in the land of the free and the home of the brave).

Lets not forget that context as the Supreme Conservatives seem to have done.

Thursday, June 28, 2012

Supreme Court Decides The Health Care Law

The Supreme Five No More?
Today, will the Supreme Court side with the war corporations?

Or will the United States join the rest of its peer nations?

It is said that the Supreme Court will render their decision at about 10:00 AM Eastern Standard Time.

One wonders if the Supreme Court believes that health care is the number one threat to the military:
The Enemy the Pentagon Should Fear Most: Health Care

The U.S. military keeps searching the horizon for a peer competitor, the challenger that must be taken seriously. Is it China? What about an oil rich and resurgent Russia?

But the threat that is most likely to hobble U.S. military capabilities is not a peer competitor, rather it is health care.
(National Defense Magazine). There is little wonder, then, why the military gives little health care to its members:
This morning on Morning Joe, MSNBC, retired Admiral Mike Mullen pointed out that 18 of them commit suicide a day now, or 6,570 each year, and the rate is increasing (2nd video below; see also Washington Post).

Those numbers don't include the fact that about one third of them coming back from Iraq and Afghanistan, over 300,000 and growing, even if they do not commit suicide, murder, or other crimes, have other mental health problems to deal with.
(The Surge Of Snap Sergeants). Members and veterans of the military get such poor stress treatment that they kill more of themselves in one year than all their enemies have killed of them in all the wars in the past ten years (Iraq - 4,409; Afghanistan-1,892).

Wise up folks, it is a Pogo moment: "We have met the enemy and it is us."

The enemy is not health care.

UPDATE: The Supreme Court upholds the Affordable Health Care Law.

Wednesday, June 27, 2012

Have Courts Fallen For The Greatest Hoax?

If Ice Sheets All Melt
Regular readers know that recently Dredd Blog looked into the Navy's approach to global warming (Has The Navy Fallen For The Greatest Hoax?).

That post provided a video filmed at the Pentagon featuring an Admiral who was in command of the Navy's global warming response.

He pointed out that they understand global warming to be man made, and a serious consideration, especially the aspect of ocean level rise.

In today's post we look at a couple of court cases that: 1) mandated that the Environmental Protection Agency ("EPA") regulate greenhouse gases, and 2) that the regulations that the EPA thereafter enacted are valid, well done, and should be upheld.

The foundational case came from the Supreme Court:
A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species—the most important species—of a “greenhouse gas.”

Calling global warming “the most pressing environmental challenge of our time,” a group of States, local governments, and private organizations, alleged in a petition for certiorari that the Environmental Protection Agency (EPA) has abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide.
(Massachusetts v. EPA, 549 U.S. 497, 2007). The court held that the EPA must regulate greenhouse gases.

The EPA complied and drafted regulations pertaining to greenhouse gases, and was then sued for having done so.

The suit was filed in the federal district court in the District of Columbia, which upheld the EPA's regulations.

That decision was affirmed on appeal to the Federal Circuit Court of Appeals for the District of Columbia:
Following the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007)—which clarified that greenhouse gases are an “air pollutant” subject to regulation under the Clean Air Act (CAA)—the Environmental Protection Agency promulgated a series of greenhouse gas-related rules.
For the foregoing reasons, we dismiss all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions.
(Coalition For Responsible Regulation v. EPA, #09-1322, decided June 26, 2012). The court unanimously upheld the regulations and rules that the EPA set forth.

Thus, as a matter of law the climate change deniers are advocating disobedience to natural law as well as the law of the United States.

Tuesday, June 26, 2012

The Surge Of Neocon Mythology - 2

It is our practice from time to time to review an older post to show that, in politics at least, some things do not seem to change.

Take for example the post on this date in 2009 which concerned neoCon politics of the GOP.

 Here is that post from 2009:

The mantra of the neoCon republicans has been that America was and is made safer by their wars, torture, and economic prowess.

Their efforts led, among other things, to Senator Ted Kennedy being put on the terrorism no fly list, and for sure he could not get a pilots license after that or get on board an airliner.

However terrorists can keep their pilot's license:
At least six men suspected or convicted of crimes that threaten national security retained their federal aviation licenses, despite antiterrorism laws written after the attacks of Sept. 11, 2001, that required license revocation. Among them was a Libyan sentenced to 27 years in prison by a Scottish court for the 1988 bombing of Pan Am 103 over Lockerbie.
(NY Times). What is all this letting foreigners take over our ports, military factories, but call elderly Senators terrorists?

Rush Limbaugh is surging ahead, saying Governor Sanford was driven to adultery by democrats. What is next, the Iraq war was not for oil?

There is a surge in fantasy reasons for wars and torture, fantasy reasons to put Ted Kennedy on the no-fly-list, fantasy reasons for not revoking terrorists pilot licenses, and so on.

Is somebody a sicko in the heezy land?

Joe The Plumber says Senator Dodd should be hanged.

The right wing is the place for inciting hatred these daze.

Keep on Rockin' In The Free World ...