The Supreme Court looms over our political landscape like a giant, immovable object. Americans have traditionally respected the court's purview, believing that it serves justice, dispassionately. Yet the most controversial decision of the last twenty five years -- Bush v. Gore -- has profoundly shaken that sentiment. And other decisions, like the Citizens United ruling that prevented restrictions on corporation and labor outside expenditures in elections, are inviting further skepticism. Just who does the Court serve? Is this another case of Platinum Citizens getting one set of rules, and everyone else getting another set of rules? And is the Court dominated, like the rest of our government, by money? Do we have a bought Supreme Court?
This is a difficult, and troubling, question. And it doesn't have an obvious answer. One place to look is at the Citizens United decision itself. The most remarkable aspects of the court's decision-making in Citizens United is the Court's attitude towards corruption. The traditional rationale behind campaign finance restrictions is that campaign money can corrupt or create the appearance of corruption. The court found that, unless there was an explicit quid pro quo and donations were coordinated with candidates, money was not a corrupting force. If there ever were a rationale to restrict free speech in the form of campaign spending, corruption was it. But since campaign money doesn't corrupt, the Court found, the Constitution prohibits the government from regulating money in politics.
Most people believe in common sense, that if you give someone money, or spend money on someone's behalf, you will have influence over them. Excessive influence over a politician leads to corruption. Yet the Supreme Court doesn't see it this way. How did the Court come to have such odd ideas on corruption?
This goes back to the subtlety of money in our politics, and in particular, the purchase of ideas. In the 1970s, a think tank called the John Olin Foundation began promoting something called law and economics, a school of thought started at the University of Chicago that linked the incentive-based thinking of economics to legal rule-making. At the time, the ideas that led to the massive deregulatory impulses of the next three decades were first taking shape; the law and economics school was simply the legal offshoot of this well-funded pro-corporate trend. This new legal theory asserted that traditional legal concepts like equity and fairness were not as important as efficiency and incentives. And it expanded its influence quickly over law schools and courts very quickly through, well, gobs of money. According to conservative journalist John Miller, "the foundation sank more than $68 million into law and economics, and because of this it had a big impact on legal scholarship, the training of lawyers, and judicial behavior."
Over the next four decades, the Supreme Court, and the judiciary in general, became far more amenable to analyses that left out concepts like fairness. And this was not simply due to the conservatives on the courts, though they led the charge. The Supreme Court helped get rid of usury caps for credit cards, and then struck down state laws capping penalty fees. These two significant decisions -- the Marquette decision in 1978 and Smiley v. Citibank in 1996 -- were unanimous. Bankruptcy filings have naturally spiraled upwards. It wasn't just Congress, the regulators, or the President that deregulated our financial system, it was the Supreme Court as well. And if you want to know why bankers haven't been prosecuted for the financial crisis, well just before the crisis, the court upheld a ruling that investment bankers who knowingly structured sham transactions they knew would be used to falsify Enron's financial statements hadn't committed fraud. Last year, the court ruled for Enron ex-CEO Jeff Skilling.
Today, this concept is so embedded in the judiciary that imposing rules to allow shareholders power over corporate management is now being struck down on the grounds that it would prevent "efficiency, competition, and capital formation." Law schools now churn out lawyers who understand and believe in law and economics, who can be the Supreme Court clerks and legal functionaries to embed these arguments in every nook and cranny of our legal system. Questions of justice are now becoming questions of how to make the law serve the interests of corporations, rather than fundamental issues of liberty. Powerful groups like investment bankers and CEOs can commit unethical acts with no consequence, but more than one in every hundred American men is now incarcerated, most for low level petty violations.
Some people chalk up the Court's problems to a conservative influence on the judiciary. These people point to both Justice Sam Alito and Justice John Roberts, who both argued they would treasure Court precedent during their nomination hearings. It would be hard to find a more outrageous case of not following precedent than Citizens United; corporate money had been restricted for a century. Even more egregious is the case of Justice Clarence Thomas, whose wife took $680,000 of money from the conservative Heritage Foundation, even as he did not disclose the money as required by law on his Federal disclosure forms. Thomas has also helped raise money for the Heritage Foundation. As businessman and ethical advocate Landon Rowland observed, the greatly admired scholar Alexis de Tocqueville distinguished America from corrupt European states by its willingness to subject "the state and its rulers to ordinary courts and the common law." This is no longer the case if a Supreme Court Justice can receive family income from a conservative ideological institution, break the law and not disclose it, and then rule on issues on which that institution has weighed in.
But I think the problem is more fundamental. The bank-friendly cases occurred before these conservatives were on the Court, and they were unanimous decisions. Moreover, just looking at how Democrats responded to these Supreme Court decisions shows that the problem is bipartisan. In response to the Lily Ledbetter decision from the Court on gender-based pay discrimination, Congress passed a statute reversing the Court's mandate. This is good as far as it goes, but where is the grand theory of bringing equity and fairness back to the judicial system? Congress can't, and indeed doesn't, respond every time the court system fails to act in pursuit of justice. The breakdown is becoming so severe that banks can commit rampant foreclosure fraud against debtors and the court system, without consequence. What good is a system of justice that protects the property rights of banks, but not the property rights of anyone else?
Fundamentally, what we need is a new legal theory for the 99%, a new way of looking at corruption. The law and economics school takes a limited approach to the question of justice, but there are seeds of new ways of thinking. Another way of modeling the problem has been pioneered by law professor Zephyr Teachout, who argues there is a structural anti-corruption principle embedded in the Constitution itself in the form of a separation-of-powers. She explores how the founders drafted the Constitution as a response to corruption, and argues that judges need to consider questions of corruption as a Constitutional principle. Other young scholars are remaking our intellectual landscape- telecommunications and cyberdefense specialist Marvin Ammori argues that the First Amendment is a design principle. Public space, he says, is essential for the First Amendment to operate, and judges need to consider that concept. As we see protesters camped out around the country and tussling with public officials over how they can showcase grievances, this seems far more important than more mundane First Amendment questions that typically deal with questions of flag-burning.
The question of money and the courts is not a simple one. Money does corrupt, but in the case of the courts, it isn't illegal to fund intellectual research, nor should it be. What are needed are new ideas and new legal theories to counter the ones that failed. As we watch the torrents of money pour into our politics, it's becoming increasingly impossible to believe that our national institutions are designed to do anything but protect the interest of a very narrow slice of the population. The Supreme Court's power rests on a tradition of integrity and a belief that it will be just in its use of its power to interpret the law. It's based on a belief that the Court's interests are aligned with the rest of us, that we get the choice of pursuing justice when harmed. As this frays, the Court's power will fray as well. This is in no one's interest. We need a system of justice, but a system of justice that serves all of us.
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We need to get the bribe money out. Supporting the Fair Elections Now bill would be a good first step. Perhaps the 99% OWS movement needs to ask candidates to sign a pledge to support this bill?
How can anyone maintain faith in a system like that?
Justice has been bought and paid for by the shadow elite and their lackeys.
http://en.m.wikipedia.org/wiki/Bush_v._Palm_Beach_County_Canvassing_Board
Then the supreme court ruled 8 to 1 that :
"Florida Supreme Court had violated Article II, § 1, cl. 2 of the Constitution, by misinterpreting Florida election law that had been enacted by the Florida Legislature."
The only part that was controversial was the ruling that all BS aside was a logical consiquence of the first two rulings, that the Florida secretary of state was free to certify the results as counted to that date.
Ignoring the unanimous and 8 to 1 earlier decisions that paved the way to the final outcome is being at least as partisan as you accuse SCOTUS of being.
http://en.m.wikipedia.org/wiki/Bush_v._Gore
Put as simply as possible, when the margin in vote difference is less than 1/2 of 1 percent in Florida (which it was) that automatically triggers a machine recount of the ballots. If the machine recount finds errors in the ballot count (which it did) then the candidates are allowed to request a manual recount of specific counties; however, all of this needs to be done within a limited time frame - 7 days.
What the statute doesn't specify is how quickly each part of the process should happen, so when Katherine Harris (a Republican) took her sweet time in performing the first machine recount she used all but 2 days of the 7 day time limit. She then decided that she wouldn't accept any manual recounts posted after the 7 day time limit (even though there are other statutes which allow (and possibly require) this). The Florida Supreme Court ruled that the time limit should be extended since the Florida state constitution contains a "right to vote" clause guaranteeing that each vote will be counted.
That said once this was made clear by the earlier rulings, the final ruling giving the election to Bush split on party lines. My next point is that given the earlier two rulings, to me it makes the Democrat Justices look far more partisan to me. The final ruling was a necessary consiquence of the first two for the sake of consistancy.
What it comes down to is simple: Kathrine Harris used her power as Secretary of State to certify the election of a candidate in her political party while ignoring the actual votes of the people in her State. It is quite possible that Bush actually won the election in Florida, unfortunately we'll never really know since the votes where never properly counted.
Our so-called justice system is, in many cases, so messed up that one court says one thing and another says another and then the supremes get into the act and in many cases makes it worse.
When so many "Justice" courts have such lax requirements for the justices (some just require that a person be over 18 and able to read and write and not convicted of a felony) and that person is not knowledgable in the laws of the county, it leads to disastrous results.
We need a system that upholds the law. The law has never provided justice for all. That would the goal, but the goal is impossible. Part of the problem is that now whenever a decision is made that is not popular, the court is bought. SC justices vote, they belong to political parties, their political leanings are evident through out their life. Justice Thomas, Justice Sotamayor, and others have obvious political leanings, we have to trust that they can put these aside when they make their decisions. Interstingly enough the article addresses concerns over what would be considered popular conservative decisions. It is framed to make it look like the court allows corruption, when that is not the case at all. The eternal question would be which justices are bought, and which are not...the answer always changes depending on the outcome of any given case.
When members of the Supreme Court openly go to all-expenses-paid Koch Brothers events, “forget” how to fill out income disclosure forms, and go on hunting trips with Vice President Cheney while adjudicating a case involving him…. Well, I don’t think it’s a difficult question at all. Actually, I think the answer is rather obvious indeed. It always comes down to 5-4…
The SC's only real authority comes from the acquiescence of the other two branches of government to their decisions. That acquiescence has lasted for 250 years in part because the other branches trusted that the SC was upholding the constitution and working for the benefit of the country and its people.
The SC with the Bush v Gore and Citizens rulings have shaken that trust. In the case of Scalia and Thomas they have openly accepted bribes to vote in a partisan manner, and shown their disdain for the American people.
They have shaken the efficacy of the courts to their roots.
Economic analysis is a tool to be used to understand better how to get the results you want. You pretending it is somehow immoral to carefully analyze ALL the impact of a proposed
"Concepts like fairness"! Does that exist?
I challenge everyone who reads this to give examples of every day life that show fairness. I don't believe it exists in Corporate America, where all those on the fast track are getting ahead on the "backs of others". Every manager is given direction to "make choices" that aren't necessarily fair, but they have to do it!!!!
Post examples of how you show fairness in every day life!
Also
The problem is that our court system, and especially the SC no longer treats people as equal under the law. They create exceptions. Exceptions that were specifically prohibited by the Bill of Rights. The Bill of Rights does not include an exception for national security. The 4th, 5th and 6th Amendments were created as a reaction to the tactics used by the British before and during the war for independence. Yet we now have hundreds of opinions in direct contradiction of those Amendments to protect the president and congress during war. We have just spent the last ten years creating exceptions to the law to protect banks, big oil, big pharma, etc. We protect the wealthy, the well known, and the politicians. When was the last time you heard of a regular person being given re-dos like Lindsay Lohan?
Fair means equal treatment under the law. We have lost our way in this regard, and it is very likely going to destroy the efficacy of the courts.