Archive for the ‘SCOTUS’ Category

by Pete Talbot

Voting the same way they did on Citizens United (5-4), U.S. Supreme Court Justices overturned Montana’s century-old ban on corporate contributions to campaigns.

So, corporations are still people and money still equals free speech: the more money you have the more free speech you get.

The Copper Kings were the reason Montanans voted to ban corporate political spending in 1912.  Since my writing skills aren’t quite up to Mark Twain’s, here’s a quote of his from the Washington Post article:

… Twain wrote of one such mining giant in 1907, Sen. William Clark, “He is said to have bought legislatures and judges as other men buy food and raiment. By his example he has so excused and so sweetened corruption that in Montana it no longer has an offensive smell.”

This ruling is depressing but not surprising.  I could go on-and-on but since it’s Monday and I have a lot on my plate, consider this an open thread.

by Pete Talbot

Pearls Before Swine by Stephan Pastis

Pearls Before Swine

This is in response to the Polish Wolf’s post over at Intelligent Discontent.  While some of his stats are interesting, his premise is flawed.  Basically he says that the 99% are responsible for their economic plight by shopping at WalMart, buying imported clothing and purchasing gasoline.  There’s a grain of truth to this, I suppose, but I’m thinking that the policies of the last few decades have more to do with wealth inequalities: economic policies that favor Wall Street over Main Street, Free Trade agreements that benefit corporations more than workers, and energy policies that promote carbon-based fuels over renewables and conservation.

Montana Supreme Court rules

Or maybe I should say the Montana Supreme Court rocks!  I certainly have more respect for the majority of Montana Supremes than the majority of SCOTUS justices.  In a 5-2 vote, the justices ruled against the kooky triumvirate of Western Tradition Partnership, Champion Painting Inc. and Gary Marbut’s Montana Shooting Sports Association Inc.  Unlike the U.S. Supreme Court, Montana justices don’t believe corporations should be able to buy and sell elections.

Look up pompous ass in the dictionary

And you’ll see a picture of George Will.  In his latest column, he promotes the Keystone XL pipeline, the Canadian tar sands and fracking in general.  He pooh-poohs climate change, the EPA, the National Labor Relations Board and student loans.  He believes “conservatives should stride confidently into 2012” … “because progressivism exists to justify a few people bossing around most people … ”  He has that backwards, of course, but because he uses a lot of two-dollar words, people think he’s smart.  He’s not.

And locally

Usually reliable reporter Gwen Florio reports on a woman who’s attempting to disqualify Justice of the Peace John Odlin.  This stems from two misdemeanor charges against the woman for “community decay.”  What the hell does that mean?  Did she beat up on some curbs and gutters?  Forget to paint her porch?  Dump raw sewage into a neighborhood park?  I’m dying to know.  Anyway, the Montana Supremes call her case against Odlin “frivolous.”


(Note: starting after this article’s note, I will no longer be linking to Lee Enterprises online newspaper articles, as they have instituted a paywall that prevents readers here from accessing those articles unless they have paid the subscription fee. Beings as I have not, and will not pay the fee, I will be linking to information from alternative sources).

“… A tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law.”

“… A talisman that ipso facto sweeps aside Separation of Powers concerns.”

“Policy changes of questionable political viability, such as occurred here, can be forced using insider tactics without debate by attaching riders…”
— Federal District Court Judge Don Molloy

In a stunning decision with a scathing commentary, Federal District Court Judge Don Molloy declared that Senator Jon Tester’s wolf rider supporting delisting of wolves in Montana and Idaho, in his opinion, is unconstitutional. He also found that a 9th Circuit Court precedent prevented him from ruling against the rider, and was forced to let Tester’s controversial rider stand.

Kieran Suckling, executive director of the Center For Biological Diversity, one of the groups that challenged the rider, was quoted in the Lewiston Tribune article:

“I’ve never seen anything like it,” he said. “He is not only intimating the wolf rider is unconstitutional and the 9th Circuit is wrong but he is laying out a road map on how to appeal his own ruling and take it all the way to the Supreme Court. He does everything but buy us a bus ticket to Washington, D.C.”

Judge Molloy expounds on the role that the doctrine of Separation of Powers played in his decisions, and is must reading for any who would critique the power of Congress. And his analysis sets the framework for the inevitable appeal to the 9th Circuit.

I’ve had much to say here and elsewhere about Senator Tester’s use of riders to pass policy and this court case, so I needn’t go there again. You can read the Judge’s Final Order for yourself to get a sense of how upset he was that he was constrained from upholding the plaintiff’s case against the constitutionality of Tester’s rider process.

Here are some pertinent statements from the Judge about Senator Tester’s wolf rider:

“This case presents difficult questions for me. The way in which Congress acted in trying to achieve a debatable policy change by attaching a rider to the Department of Defense and Full-Year Continuing Appropriations Act of 2011 is a tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law. The principle behind the rule of law is to provide a mechanism and process to guide and constrain the government’s exercise of power. Political decisions derive their legitimacy from the proper function of the political process within the constraints of limited government, guided by a constitutional structure that acknowledges the importance of the doctrine of Separation of Powers. That legitimacy is enhanced by a meaningful, predictable, and transparent process.

In this case Defendants argue—unpersuasively—that Congress balanced the conflicting public interests and policies to resolve a difficult issue. I do not see what Congress did in the same light. Inserting environmental policy changes into appropriations bills may be politically expedient, but it transgresses the process envisioned by the Constitution by avoiding the very debate on issues of political importance said to provide legitimacy. Policy changes of questionable political viability, such as occurred here, can be forced using insider tactics without debate by attaching riders to legislation that must be passed.

You can read more excerpts from the Judge’s Order below the fold:
Continue Reading »

by Pete Talbot

Hey! Since corporations can now give unlimited amounts to federal campaigns, why not allow political parties the same latitude? At least that’s the Republican Party’s take on the recent Citizens United decision by the Supreme Court.

Special interests don’t have enough influence in national elections and policy, the GOP’s thinking goes. Now, not just corporations, but political parties can raise and spend unlimited dollars on federal campaigns. That is, if the Supremes rule in favor of the GOP request, and there’s no reason to think they won’t.

It’s called ‘soft money’ and the Republicans want to raise and spend big bucks to, “help elect GOP candidates to state offices, finance congressional redistricting efforts following the 2010 census, and fund lobbying efforts on federal legislation.”

As the AP reports, Democrats have opposed the Republican effort, even though they, too, would be allowed to collect unlimited contributions.

This is going to make for one long, sickening political season. You can now look forward to even bigger campaign war chests and more independent expenditures on TV, radio, direct mail, et al. Look for even more lobbying on behalf of corporations and parties, too, which is almost impossible to fathom.

by Pete Talbot

By giving corporations the same rights as citizens, the U.S. Supreme Court guarantees a less-than-level playing field in upcoming elections. A majority on the court (this would be mainly your Reagan/Bush/Bush appointees) overturned much of the McCain-Feingold campaign finance act.

Here’s the story, and how each justice voted.

Of course, labor unions have also contributed vast sums to candidates and campaigns but weren’t happy with the ruling. SEIU denounced the court decision, saying it opened the door for corporations to outspend unions:

“I don’t think working people would ever have as much to spend as corporations. For us, being able to spend a few extra dollars isn’t worth allowing decisions to be made from boardrooms instead of the polling booth,” said union spokeswoman Lori Lodes.

In my inbox this morning was a timely request from David Sirota. He called the SCOTUS decision a “a radical ruling that threatens the most basic fundamentals of American democracy.” I agree. And Sirota offers up a petition to amend the Constitution to declare that corporations are NOT people. Please sign it.

by jhwygirl

Chief Justice John Roberts will be speaking at UM tomorrow, 2 p.m., as part of its School of Law lecture series. The lecture is free and open to the public.

In anticipation of an overflow audience, UM will also open the Music Recital Hall.

Both Montana Public Radio and Yellowstone Public Radio will broadcast live. They are also doing a rebroadcast at 7 p.m.

Both stations do web broadcasting as well – good news for those who have to work.

It’s a shame the Missoulian doesn’t have this story up on its website like both the Billings Gazette and the Great Falls Tribune do.  But I’m sure they will add it after reading this.

Support public radio. Donate to MPR. Donate to YPR.

by Jay Stevens 

There’s a crucial matter about climate control up before the SCOTUS right now: several states are suing the government to regulate carbon dioxide emissions from motor vehicles. It’s a pretty simple case: the states are arguing that CO2 is a pollutant under the Clean Air Act, and EPA says it can do whatever the hell it wants.

Outlook doesn’t look that good, to be honest. Based on Dahlia Lithwick’s description of the proceeding, the SCOTUS justices seem to be sympathizing with the government’s “toddler” defense:

Now, maybe it’s because I have a toddler at home, but the EPA’s argument, presented by Deputy Solicitor General Gregory Garre, quickly sounds very familiar. 1) I can’t clean it up; 2) Even if I could, I don’t want to clean it up; 3) You can’t make me clean it up; and 4) China is making an even bigger mess. How come China never has to clean it up? When and if all that fails, the EPA, like my son, just puts its hands over its eyes and says there is no mess in the first place.

One of the dangers of the decisions is that, if the SCOTUS rules against the states, it could keep the states themselves from regulating emissions and effectively set back the battle against climate change a dozen years. (Once again big corporations’ profits would trump states’ rights with “conservatives.”)

On the other hand, if the SCOTUS rejects the case, the Democratic-led Congress might actually introduce legislation that allows the government to regulate carbon-dioxide emissions. Which the President probably would veto and make the issue one of the hot topics for 2008.

Still, what’s not to under-emphasize is that, if the SCOTUS does rule against the case, it would do so on the basis that the harmful effect of carbon dioxide on the environment can’t be proved beyond a doubt. Unfortunately the same can be said for most pollutants, as well. That is, if the SCOTUS rules against the regulation of CO2, it might mean the end of the Clean Air and Clean Water Acts.

And you thought Bush’s SCOTUS appointments were about abortion!

Some folks defend Bush’s recent legal power grabs – the signing statements, the use of “enemy combatant” status, illegal wiretapping, and so forth – by saying there’s some legal arguments that support his moves.

Um, yes. There are probably legal arguments for every hare-brained scheme imaginable. Kind of like claiming the Constitution’s Fifth Amendment (“Nor shall private property be taken for public use, without just compensation”) supports regulatory takings bills (like, say, CI-154).

Recently, Presidential legal contortionist – er, legal advisor, John YWoo, wrote a guest editorial in the LA Times decrying the Supreme Court’s smackdown of the administration in the recent Hamdan decision. You can see from reading this tripe – er, opinion – that this guy is a piece of work and is living in fantasyland – er, Berkeley. I’m no legal scholar, but…

First, YWoo compares Bush to…heh heh…Lincoln and…no, I’m serious!…FDR during their wartime activities. Woo claims that, like those previous Presidents, Bush needs to act decisively and quickly to war situations:

Long-standing U.S. practice recognizes that the president, as commander in chief, plays the leading role in wartime. Presidents have started wars without congressional authorization, and they have exercised complete control over military strategy and tactics. They can act with a speed, unity and secrecy that the other branches of government cannot match.

Of course, FDR was working within an actual war, as declared by Congress, not a battle against an emotion, as declared by, well, Bush. It is true that both Lincoln and FDR pursued Constitutionally questionable policies – Lincoln’s suspension of habeus corpus for suspected Confederate spies, FDR’s Japanese internment camps – but in those cases the actions were approved of by Congress and later stopped because of their questionable legality. (In the case of the internment camps, the government was later forced to compensate the internees for the illegal seizing of property and their forced displacement.)

Lincoln’s Emancipation Proclamation is trickier and deserves its own post, but let’s just say it was pretty much just for show. And it was a Constitutional Amendment that outlawed slavery, not the EP. (Does Woo really want to compare the Bush administration’s policies of torture and illegal detainment to freeing slaves?)

The Sept. 11 attacks succeeded in part because our government was mired in a terrorism-as-crime approach that worried less about preventing attacks than about hypothetical threats to civil liberties — hence the “wall” preventing our law enforcement and intelligence agencies from sharing information. Our laws considered war as conflict only between nations and failed to anticipate the rise of non-state terrorist organizations that could kill 3,000 Americans, destroy the World Trade Center and damage the Pentagon in a single day.Bush invoked his constitutional authority to fight this shadowy enemy that does not wear uniforms, targets civilians and violates every rule of civilized warfare.

This is where Bush administration fantasy really kicks in. The best way to fight terrorism is, of course, using terror-as-crime techniques. Israel has demonstrated this for decades. Whenever it uses conventional armies to weed out terrorists groups – like, say, in Lebanon – it seems like the actions only exacerbate tension and create more terror. We see this in Iraq – a previously secular dictatorship that now spawns over 100 terror victims every day.

No, the best way to defeat terror is to cut off terrorist funding, use intelligence-gathering and police techniques to find and identify terrorists, then use special forces to go in and arrest or kill the b*stards. These actions should accompany efforts to eradicate the roots of terror with vigorous economic packages and investment in areas that breed terrorism. It may not be foolproof, but it’d be about a million times more successful — and cheaper –than, say, invading Iraq.

The point is that the administration is creating from terrorist groups a mysterious and powerful boogeyman to scare us into giving up power to the executive. Terrorist groups are neither. With a little more effort, the Bush administration could probably have thwarted 9/11. A competent federal crime agency can fight terror while obeying the rule of law. (Key word: “competent.”)

YWoo concludes with an attack on the Supreme Court for “interfering” in the Hamdan case:

What makes this war different is not that the president acted while Congress watched but that the Supreme Court interfered while fighting was ongoing. Given its seizure of control over some of society’s most contentious issues, such as abortion, affirmative action and religion, maybe the court’s intervention should come as no surprise.

Uh…? Did he read Hamdan? The SCOTUS basically said that courts should decide legal cases of detainees, not the military. That is, the courts should rule on the law. That’s…well…what courts do. But YWoo knows the law better than the SCOTUS! Courts are for keeping their mouths shut while Presidents do! (Seems to me this is a good way to p*ss off the judiciary…)

Now another area of the administration’s power grab is under attack. The American Bar issued a one-of-kind direct challenge to the President challenging his use of signing statements, which finally goads Arlen Specter into action.

I’m sure YWoo thinks the ABA doesn’t know what it’s talking about, either.

It’s time to face facts: Woo and Gonzalez and the rest of the administration’s legal staff are hired, not to advise the President on the rule of law, but to distort and twist the interpretation of law so that lil’ Dinky can do whatever the h*ll he wants.

Update: Oops! I wrote “Woo” instead of “Yoo” yesterday. John Woo is, of course, the action filmmaker. My apologies to Woo.

Hooray for the rule of law! Hooray for the judiciary, which has successfully fulfilled its duty! Hooray for checks and balances! Hooray for the Constitution!

SCOTUS has “delivered a stunning rebuke to the Bush administration” and ruled that the military tribunals that try Guantanamo detainees are unconstitutional.

The case of Salim Ahmed Hamdan, a 36-year-old Yemeni with links to al-Qaeda, was considered a key test of the judiciary’s power during wartime and carried the potential to make a lasting impact on American law. It challenged the very legality of the military commissions established by President Bush to try terrorism suspects.The case raised core constitutional principles of separation of powers as well as fundamental issues of individual rights. Specifically, the questions concerned:

• The power of Congress and the executive to strip the federal courts and the Supreme Court of jurisdiction.

• The authority of the executive to lock up individuals under claims of wartime power, without benefit of traditional protections such as a jury trial, the right to cross-examine one’s accusers and the right to judicial appeal.

• The applicability of international treaties — specifically the Geneva Conventions on the treatment of prisoners of war — to the government’s treatment of those it deems “enemy combatants.”

The ruling was 5-3. SCOTUSblog has the syllabus. Justices Stevens, Breyer, Bader Ginsburg, Souter, and Kennedy in the majority. Dissenting were Thomas, Scalia, and Alito. Roberts had to recuse himself because he participated in the federal appeals court decision upholding the administration’s position.

Surprise! Roberts and Alito are gung-ho on executive privilege! What a shocker! Actually you probably won’t be surprised, but I wrote on this topic some months ago:

These Supreme Court nominations aren’t about abortion. They aren’t about prayer in school or the posting the Ten Commandments in school, outlawing sodomy (i.e., fags), protecting the Pledge of Allegiance, or prohibiting flag burning. No. These nominations are about vesting authoritative powers in executive branch.

Luckily for this country these executive-backers haven’t achieved a majority on the bench. Yet. But this case also shows how negligent Senate Democrats were to allow the Alito nomination to sail through Congress. You remember, right? Democratic leaders wanted to filibuster Alito’s nomination. Only the usual gang of tepid lawmakers voted for cloture in order to avoid the stigma of divisiveness.

Let’s remember those Senators who did the right thing and voted for the United State Constitution and against cloture:

Bayh (D-IN)
Biden (D-DE)
Boxer (D-CA)
Clinton (D-NY)
Dayton (D-MN)
Dodd (D-CT)
Durbin (D-IL)
Feingold (D-WI)
Feinstein (D-CA)
Jeffords (I-VT)
Kennedy (D-MA)
Kerry (D-MA)
Lautenberg (D-NJ)
Leahy (D-VT)
Levin (D-MI)
Menendez (D-NJ)
Mikulski (D-MD)
Murray (D-WA)
Obama (D-IL)
Reed (D-RI)
Reid (D-NV)
Sarbanes (D-MD)
Schumer (D-NY)
Stabenow (D-MI)
Wyden (D-OR)

You can figure out for yourself who’s not on this list.

You’ll also notice there aren’t many “Rs” in the list. When the jackbooted thugs knock down your door, you’ll know who to thank.

Remember civil liberties and the rule of law aren’t just for those people we agree with or like, they’re also meant to apply to people we don’t like or we distrust.

Today the SCOTUS backed down over a possible showdown with the Bush administration by refusing to hear "dirty bomber" Jose Padilla's challenge that he was detained without charges for too long. The court refused to hear the case because Padilla was finally charged with a crime, just days before the government would have been forced to present a brief to the justices about his detention.

The refusal to hear the case is important because, in effect, the court is dodging whether the Bush administration's "war" tactics are legal.

Or, as Justice Ruth Bader Ginsberg wrote, in dissent:

"This case . . . raises a question of profound importance to the Nation," Ginsburg wrote. "Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an 'enemy combatant' "?"It is a question the Court heard, and should have decided, two years ago," she said. "Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.

"Although the Government has recently lodged charges against Padilla in a civilian court, nothing prevents the Executive from returning to the road it earlier constructed and defended," she wrote. "A party's voluntary cessation does not make a case less capable of repetition or less evasive of review."

I wrote about this case some months ago on another site (now defunct), but I thought it was worth posting again. Here it is:

The "Dirty Conspirer" just doesn't have the same ring (November 23, 2005)

Yesterday, the Bush administration indicted “dirty bomber” Jose Padilla on charges of conspiracy to commit acts of terror abroad. Not only are the charges different than what the administration originally accused him of, but also allow the administration to avoid presenting a brief to the U.S. Supreme Court, due Monday, arguing that the court does not need to see Padilla’s challenge to his detention.

Still, the real news is that the Bush administration is desperate to avoid legal challenges to its self-proclaimed authority to hold terror suspects indefinitely without a trial. The New York Times notes:

The Supreme Court has already accepted one case this month concerning the scope of the president's power to fight terror. That one involves whether he has the authority to try detainees held at Guantánamo Bay, Cuba, for terrorist offenses before military commissions there. The administration had vigorously urged the court not to hear the case.

The Times articles also points out,

The government could redesignate Mr. Padilla as an enemy combatant if he was found not guilty at his criminal trial. As long as the government does not disclaim that right…the case is, in the legal jargon, "capable of repetition yet evading review"…

Get it? The administration can slap the “enemy combatant” status back on Padilla and keep him in jail until they’re forced to legally defend their actions before the Supreme Court, then they can charge him with something else, and so on. A Times editorial sees light at the end of the tunnel in the Padilla case:

The Padilla case was supposed to be an example of why the administration needs to suspend prisoners' rights when it comes to the war on terror. It turned out to be the opposite. If Mr. Padilla was seriously planning a "dirty bomb" attack, he can never be held accountable for it in court because the illegal conditions under which he has been held will make it impossible to do that. If he was only an inept fellow traveler in the terrorist community, he is excellent proof that the government is fallible and needs the normal checks of the judicial system. And, of course, if he is innocent, he was the victim of a terrible injustice.

First, this administration will never, ever admit it was wrong. This is a president who still claims the war in Iraq is going well. This is a vice president who says that all who question the adminstration's manipulation of intelligence before the war are irresponsible and unpatriotic.

Second, while Padilla is no sweetheart and should see some serious jail-time, does anyone believe that the administration is fighting to keep him locked up because he’s a threat? No way! They’re not abandoning their dream to have unlimited powers of detention over U.S. citizens.

So why the game?

Two words: Samuel Alito.

Recently confirmed Supreme Court Justice Roberts is a known supporter of executive authority. Or, as Save the Court concludes from Roberts’ case history:

…it appears that Roberts views the Constitution as creating a supreme executive, and also that he would support the “federalist” revolution that seeks to interpret the Constitution in a manner that would undercut the authority of Congress to enact and enforce laws protecting the important rights and interests of all Americans.

A recent Boston Globe article notes that Alito, too, has backed executive authority in his judicial past.

These Supreme Court nominations aren’t about abortion. They aren’t about prayer in school or the posting the Ten Commandments in school, outlawing sodomy (i.e., fags), protecting the Pledge of Allegiance, or prohibiting flag burning. No. These nominations are about vesting authoritative powers in executive branch.

And that’s why the Bush administration is playing games with Padilla. They’ll charge him and un-charge him until Alito’s in place, and then they’ll bring the case to court where the dutiful, newly-established presidential *ss-kissers will grant Bush the power to jail anyone he (dis)likes.


Maybe now we'll get a break from these mining corporations trying to force Montanans to suffer health consequences to boost their profits. Maybe.

Soon we’ll see which end of the political spectrum truly has “activist” judges. The twice-successful Montana state ban on cyanide “heap-leach” gold mines may be considered by the Supreme Court:

Canyon Resources Corp. is hoping the Supreme Court will take the case, and ultimately find that the ban constituted an illegal taking of property. The company estimates its loss from roughly $80 million it sunk into the McDonald project near Lincoln to as much as $550 million for the value of the minerals it could have mined.


The mine operators say their property rights were denied when the state passed the ban on the use of cyanide in new gold mines. The company needed to use the banned process, which separates precious metals from ore, to profitably mine gold at the proposed Lincoln and should be compensated for the loss.

Basically the mining company is asking for special privileges that you or I, as private citizens, would never see. No one has a right to recoup losses on property for business activities that might have happened before those activities were banned, especially if those activities put human lives at risk.

(Could you imagine a remote trailer-home owner suing the state over the illegalization of crystal meth because of the income his property lost as a potential meth lab?)

In effect, this lawsuit, if considered and favored by the SCOTUS, will mean an end to state initiatives to better the environmental quality of their communities and endanger any such initiative – federal or state – in the future. If the state and federal government had to pay all companies whose profits were affected by environmental regulations, our governments would be bankrupt.

So we’ll see whether the SCOTUS, despite its new corporate- and executive-friendly members, will uphold the existing decision and the democratically-realized will of the citizens of Montana, or will favor its big-money benefactors at the cost of our health.

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