“Every redistricting is a partisan political exercise, but this is going to put it at a level we have never seen…That’s the gift that the Supreme Court and Tom DeLay have given us.” In other news, the Court votes 5-4 that DeLay’s Texas redistricting plan needs to be tweaked — namely, that one district needs to be redrawn to accommodate the Voting Rights Act — but is otherwise legal and constitutional. “[W]ith six justices producing 123 pages of opinions, without any five of them able to agree on how to define an unconstitutional gerrymander, politicians of both parties said that the ruling leaves the door wide open to attempts to copy the DeLay strategy in other states.”
Category: The Roberts Court
Passing the Buckley.
Boo hiss. The Supreme Court decides 6-3 to strike down a Vermont campaign finance law, which was conceived in part as a challenge to Buckley v. Valeo. “The result appears to doom any future efforts to impose spending limits on state or federal campaigns, legal analysts said.” And, in related news, Slate‘s Dahlia Lithwick and Walter Derringer discuss recent Supreme Court decisions, with special attention to the recent capital punishment case, Kansas vs Marsh.
Judge Dread.
“‘There’s been a quiet, silent revolution going on,’ Carp said in an interview. ‘If you’re a conservative, you’re going to say, “Thank God.” If you’re a liberal, you’re going to put your hands over your head and say it’s a nightmare.’” By way of my friend Mark, CQ’s Kenneth Jost laments the Dubya judiciary.
Roberts: Go Along to Get Along.
“If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case. Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds.” In a Georgetown commencement address, new Chief Justice John Roberts expounds on his view of the job after eight months. Well, we’ll see when those next few decisions come in.
Robbing for Roberts?
Did White House officials steal a file on John Roberts’ affirmative action record from the National Archives last year? “This investigation is unresolved and the file is still missing,” says a new report by the Archives Inspector General, which Tim Noah dissects over at Slate. (Hmmm…was it reclassified, perhaps?) Still, according to the report, a White House staffer was the last person known to have the file, and “[t]he report’s findings contradicted the assertions of Archives officials, who said last August that an attendant had been in the room at all times and that the lawyers had been separated from their bags.” The mystery deepens…
Goodbye Gulag?
“The most important aspect of the president’s comment isn’t just that he acknowledged, at least tacitly, that Gitmo is a disaster and must be closed; or even that he acknowledged that detainees have a basic right to some adjudicatory process. These two concessions are momentous, but they pale next to his admission that he is in any way bound by the decision of the high court — that the court will have the last word on anything to do with the war on terror.” Slate‘s Dahlia Lithwick dissects some surprising recent comments by Dubya on Guantanamo Bay, and ponders the future of the Gitmo Gulag. “[Recent] silent mass releases do suggest that Donald Rumsfeld’s famous 2002 claim, that the then-760 prisoners at Guantanamo were ‘the worst of the worst,’ was something of an overstatement. They were probably closer to ‘the best of the worst,’ or as I’ve suggested, ‘the least lucky of the middling.’ The actual worst of the worst have been relegated to a whole other secret prison system that actually makes Guantanamo look rather attractive.”
Jose, can you see?
“‘Even if the Court were to rule in Padilla’s favor,’ Kennedy went on, ‘his present custody status would be unaffected. Padilla is scheduled to be tried on criminal charges. Any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect, at this stage of the proceedings.” By a margin of 6-3 (Ginsburg, Breyer, and Souter dissenting), the Supreme Court punts on Padilla, on the grounds that Padilla’s dilemma has been rendered “hypothetical” now that he’s been transferrred into the normal justice system.
Justice Ginsburg disagrees: “This case…raises a question of profound importance to the Nation. 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. Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.“
Flip you for real.
“Leave it to Justice Antonin Scalia to trigger a nationwide debate about the hermeneutics of chin flips.” From an “empaneled jury” of Sopranos actors to Justice Scalia’s uncharacteristic appeal to foreign precedent, Slate‘s Dahlia Lithwick muses on the sideshow surrounding the Justice’s recent Sicilian kiss-off.
Hearing Hamdan.
“The president’s consistent refusal to try the Guantanamo detainees before criminal courts or courts-martial leads a reasonable observer to conclude that the government’s case would fail if it were subjected to scrutiny by an impartial adjudicator. And if that is the only justification for military tribunals, it must be rejected. No one denies that the war on terror presents new challenges to the rule of law. But prosecuting someone with a crime that does not exist, before a commission that does not have rules, simply does not constitute justice under any set of circumstances.” Slate files several dispatches on the important case of Hamdan v. Rumsfeld, which the Supreme Court (without Chief Justice Roberts, who has recused himself…as should probably Scalia) will hear today. Emily Bazelon finds that GOP Senators Kyl and Graham seem to have tried to deceive the Court about the legislative history of their Detainee Treatment Act, while Ariel Lavinbuk suggests a compromise solution: the Supreme Court could “find that ‘conspiracy’ — the only charge against Hamdan — does not violate the law of war.“
Update: The Court hears the case, and it seems a majority — Scalia and Alito notwithstanding — are not amused with the Dubya administration: “Without Chief Justice John Roberts…the argument seemed lopsided against the government.” Still, as was expected to be the norm on the Roberts Court,”the outcome of the case will likely turn on moderate Justice Anthony M. Kennedy.”
Sandra Seethes.
“It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings.” Former Justice Sandra Day O’Connor goes after judge-bashers on the right, quoting very intemperate remarks by Boss DeLay and Sen. John Cornyn. Kudos to her, although, as Ed ranted earlier today, this is all coming a bit late, isn’t it? I mean, where were Justice O’Connor’s concerns about avoiding such ends when she became the swing vote on Bush v. Gore (arguably for dubious personal reasons)? Like her fellow Arizonan John McCain, Justice O’Connor talks nice about standing up to right-wing power-grabs. But, also like McCain, when it was her turn to face them down, she didn’t walk the walk.