SocraticGadfly: The duopoly, lesser evilism and the Supreme Court

May 29, 2020

The duopoly, lesser evilism and the Supreme Court

Last month, when Bernie Sanders was on the verge of dropping out, but hadn't yet, "Clarence Thomas and Anita Hill" started trending on Twitter, and I knew why.

Anybody who remembers Senate Judiciary Committee Chairman Joe Biden's cave-in to committee Republicans remembers.

Of course, many a Democrat was ready to counter with "Oh the SCOTUS," Clarence Thomas being enabled aside.

The reality, as Tweeted in a thread? Just as Democratic presidents have been "lesser evilism" compared to Republicans, so, too have their Supreme Court appointments. Democratic appointments, including Antonin Scalia lover Ruth Bader Ginsburg, aka "The Notorious RGB," have had various degrees of lack of enthusiasm for the First, Fourth and Sixth Amendments.

(Insert: After I first got this done, but before it hit its publish date, as I had other more time sensitive stuff in the hopper, Justice Kagan gave more more ammunition. She hated on criminals in the Ramos case, voting with Alito and Roberts to still allow non-unanimous criminal jury verdicts.)

Let’s refresh ourselves.
The First Amendment. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Our fundamental “speech acts,” worship — and freedom FROM worship for we secularists — freedom of the press (though misinterpreted by the media at times as a license to stand above the general public), freedom to strike (though severely curtailed by the feds), protest, boycott and many other things, and finally, to ask our gummint to fix things, and tell them to fuck off in the process.

The Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 
A biggie in today’s world, of the Internet, electronic surveillance and GPS systems. Governments at all levels and private businesses both abuse it. (Suits against businesses have rarely been tested, and the courts, unless something is truly egregious, usually grant even more carte blanche here than to government officials.)

The Sixth Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
This is perhaps less assaulted than the Fourth, but it’s still assaulted. Let’s dig in.

I last visited this issue in a general way when Tony the Pony Kennedy retired. The one handclap lauding of him made it clear that Democrat-type liberals appreciated him on gay rights and were glad he did not go further right than a middle ground breach on abortion. They didn't care about First Amendment nuances, like the muddled and awful but not horrible Town of Greece decision Kennedy foisted on us, because the New York or San Francisco city councils never have invocatioms. Worse yet, they ignore that Obama's DOJ filed an amicus, not on behalf of Galloway, but on the behalf of Town of Greece. Why? Dem-type liberals generally aren't irreligious. Worse, they halfway believe in the Christian nation mythos, as long as it's baptized into the civic religion that Scalia and Rehnquist, especially, liked to cite.

This guzzling of the civic religion Kool-Aid has been done the most Clinton squish Stephen Breyer and Obama squish Elena Kagan. Their being Jewish, to be honest, may be a factor. They may think the "Judeo fig leaf" half of the "Judeo-Christian tradition" is necessary to uphold, under the guise of civic religion, for Jewish protection. Or maybe not. In whatever case, they were wrong.

And more wrong when they indulged warmongering by connecting Christian crosses and military burials with evading the First Amendkment. Their ruling on American Legion vs American Humanist Association, commonly known as Bladensburg Cross, was godawful, pun intended. And, contra Hemant Mehta, Breyer's old Van Orton ruling which he used as precedent was almost as godawful.

Breyer, pulled out as a separate link from one of my blog posts, earlier hated the First Amendment's free speech protections whenever a cop might get butt-hurt you were exercising your free speech against him.

Wise Latina Sonia Sotomayor? Before nomination, on the appellate bench? A squish on Freedom of Information Act requests (First), churches freedom from labor laws (First) and minors' free speech rights (First).

Sotomayor, since getting on the court, has joined Breyer in being a Fourth Amendment squish.

Notorious RGB? Not come up in court cases, but Kaepernick-hater Ginsburg is a personal squish on symbolic speech acts such as flag burning. As a Hillz friend, this isn't surprising. Pulled from that blog post, The Nation talks about her as a squish in general. Hypocrisy alert, though. The Nation will never say a word outside the duopoly because it never has before.

Before that, ALL justices were squishes against the freedom of assembly clause of the First Amendment (told you it gets disrespected) when they ruled that Shrub Bush's Secret Service (a practice followed when allegedly protecting candidate Obama, then by President Obama) was OK in creating "cattle pens" of protestors way, way away from the president. Having been at multiple Bush protests, and in Denver the day before the start of the 2008 Democratic National Convention, I've seen this stuff firsthand.

Related? ALL justices have been Voting Rights Act squishes whenever the issue of voting rights isn't ethnic minorities but third parties.

Pre-SCOTUS, Elena Kagan was a political squish on drug laws, namely the Slickster's crack vs powder cocaine punishment difference.

Before this time, back in the 1990s, Slick Willie appointees Ginsburg and Breyer both voted to uphold capital punishment, restric habeas corpus, and even to allow Boston's St. Pat's parade, which was not church-organized, to ban gay groups. That one, even with less enlightenment nationally on gay rights 25 years ago, was disgusting enough then. Today? It's totally repulsive, and it's also totally repulsive that, when Tony the Pony was still on the court, nobody ever found occasion to overturn it.

Hell, within his own race to some extent, Thurgood Marshall was a Fourth Amendment squish. The Terry case is the blackest mark on his record. The case's language is full of loopholes that subsequent local, state and federal law enforcement have driven Mack Trucks through. True, it passed 8-1, or 6-1-1-1 if one wants to count concurrences by White and Harlin (both joined the main ruling as well). But Marshall, as an African-American, by joining the opinion without even a concurrence to nuance it.

The big takeaway, setting aside the Marshall footnote? Democratic Justices care little more about criminal rights, by and large, than Republican ones. They care no more about third-party voting rights. (Besides the link I offered, the fact that SCOTUS has consistently allowed, even required, state government elections officials to act as tools of the duopoly parties has shown this antipathy to run deep.) And, Democratic justices care not a lot more about expansion of executive branch powers than Republican ones.


Underscoring this, with the killing of George Floyd in Minneapolis, is SCOTUS' ongoing refusal to deal with the legal doctrine of qualified immunity, which has let many killer cops avoid even going to trial. Remember, it only takes four judges to grant cert. So, unless four librulz were highly worried that they'd spoil future cases on qualified immunity by granting cert to a less than perfect case, they're full of shit.

As USA Today explains, qualified immunity as a legal doctrine didn't exist until 1982. The court then had two definite liberals, Marshall and Bill Brennan. Harry Blackmun had by that time become a moderate liberal. Stevens was a moderate conservative. (He later became a moderate but never was a liberal, myth aside.) Powell and White were all definite conservatives, but not Rehnquist-type wingnut. Burger was a pompous conservative squish.  O'Connor was new, a conservative, but not Rehnquist.

Know what the vote was in Harlow v. Fitzgerald, the 1982 determinative case? 8-1. Burger the one dissent. Marshall among those supporting qualified immunity, as was Brennan. In Pierson v. Ray, both also signed off on the precursor to today's qualified immunity; Bill Douglas the only no vote there.

Per Wiki's page on qualified immunity, the eight justices, many of whom would go on two years later to bend backward for cops on the first phases of good-faith exceptions to the exclusionary rule, now said it would be unfair for them and others to go on trial to distinguish a state of mind when they were acting.  Wiki's page is good at bottom in noting an attorney defending a killer cop will always claim there isn't an EXACT precedent, and that qualified immunity has no obvious root in common law.

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