It's all over but the show trials.

[Requia ☣]

So, i guess Kagan won the 'indefinite detention' issue with the supremes....
comforting.

It's only a matter of time before sho[lifting becomes life in prison.

Ex post facto no less.

Apparently this isn't new, they already said states could do this years ago, this was about whether or not the feds could do it too, even the dissenting opinions find nothing wrong with the effects of the law  .

[Elder Iptuous]

So, i guess Kagan won the 'indefinite detention' issue with the supremes....
comforting.

It's only a matter of time before sho[lifting becomes life in prison.

Ex post facto no less.

Apparently this isn't new, they already said states could do this years ago, this was about whether or not the feds could do it too, even the dissenting opinions find nothing wrong with the effects of the law  .

Yeah, i noticed that when i heard them talking about Thomas' descent.  all they really said was that they were overstepping their constitutional limits, but they didn't mention him talking about the results of such a policy...

[Cain]

http://feeds.salon.com/~r/salon/greenwald/~3/-xqM5j9sz6I/kagan

Since Elena Kagan was confirmed as a Justice of the Supreme Court, the Court has not yet issued any written rulings on appeals it has accepted for review.  But there are two cases in which Kagan's actions shed some minimal light on how she is approaching her role -- minimal, though still worth noting, particularly in light of how much time and attention was devoted here to her being named as Justice Stevens' replacement.

On September 23, 41-year-old convicted murderer Teresa Lewis became the first woman executed in the United States in over five years, when the State of Virginia administered a lethal injection into her arm.  That occurred only because the Supreme Court, two days earlier refused, by a 7-2 vote, to stay her execution.  Lewis' lawyers argued that execution was unjust because "she is borderline mentally retarded, with the intellectual ability of about a 13-year-old," because she "had been used by a much smarter conspirator," because she had no prior history of violence and had been a model prisoner, and because "the two men who fired the shots received life terms."  The two "liberal" justices on the Court -- Ginsburg and Sotomayor -- voted to stay the execution, but Elena Kagan voted with Scalia, Thomas, Alito, Roberts, Kennedy, and Breyer to allow it to proceed. It's impossible to know for certain how Justice Stevens would have voted, but he did proclaim in a 2008 decision that he believes the death penalty to be unconstitutional pursuant to the Constitutional bar on "cruel and unusual punishment".

Yesterday, a similar pattern emerged.  In 2005, two Denver residents were removed from a Bush campaign event solely due to a bumper sticker on their car which read:  "No More Blood for Oil."  They sued, alleging their First Amendment rights had been violated, but the lower court dismissed the case and the appeals court upheld the dismissal.  The Supreme Court yesterday refused to review that dismissal, but in a fairly unusual written opinion dissenting from that refusal, Ginsburg -- joined by Sotomayor -- argued that these ejections constituted a clear violation of these citizens' First Amendment rights which the Court should adjudicate.  She wrote:  "ejecting them for holding discordant views could only have been a reprisal for the expression conveyed by the bumper sticker."  Kagan, again, refused to join those two Justices, siding instead with the conservative bloc and Breyer in voting to refuse the case.

Caution is warranted against reading too much into Kagan's actions, particularly the latter one.  There are multiple factors which the Court must consider in deciding which cases to take, and a refusal to review a case does not denote agreement with the outcome in the lower court (of the two decisions, Kagan's refusal to stay the execution is more revealing).  Moreover, in both cases, the outcome would not have changed had Kagan joined Ginsburg and Sotomayor, so it's possible that her joining with the majority was merely some sort of strategic calculation to curry favor early on.  Still, these two decisions not to join Ginsburg and Sotomayor are substantive ones, and are at least worth noting as very preliminary signs of Kagan's approach on the Court.

[AFK]

OMG, ACTIVIST!

[Bebek Sincap Ratatosk]

the death penalty to be unconstitutional pursuant to the Constitutional bar on "cruel and unusual punishment".

That term has been in use since the 1600's in England and late 1700's in the US... and during all that time the Death Penalty has been an accepted form of punishment. If the people writing the 8th Amendment interpreted the Death Penalty as Cruel and Unusual, you would think that they might have ended the practice then... rather than a couple centuries later. I don't disagree that the Death Penalty is a bad idea... but I think Stevens was really reaching with that interpretation.

Also, I'm not sure about the First Amendment one either. The government can't stop you from saying what you want to say... but does telling you to GTFO of a political rally mean that they are stopping you from saying what you want to say? Or, would the First Amendment only protect them if they got tossed in jail for having the bumper sticker?

I think its a shitty thing for the Bush campaign people to do... but I don't know that its a clear violation.

I think judging Kagan based on those two unclear situations would be a bad idea. Her vote wouldn't have changed anything, except that it might make her look like a liberal judge interpreting the Constitution from the bench *add GOP talking Point Crap here*.

Thoughts?

http://feeds.salon.com/~r/salon/greenwald/~3/-xqM5j9sz6I/kagan

Since Elena Kagan was confirmed as a Justice of the Supreme Court, the Court has not yet issued any written rulings on appeals it has accepted for review.  But there are two cases in which Kagan's actions shed some minimal light on how she is approaching her role -- minimal, though still worth noting, particularly in light of how much time and attention was devoted here to her being named as Justice Stevens' replacement.

On September 23, 41-year-old convicted murderer Teresa Lewis became the first woman executed in the United States in over five years, when the State of Virginia administered a lethal injection into her arm.  That occurred only because the Supreme Court, two days earlier refused, by a 7-2 vote, to stay her execution.  Lewis' lawyers argued that execution was unjust because "she is borderline mentally retarded, with the intellectual ability of about a 13-year-old," because she "had been used by a much smarter conspirator," because she had no prior history of violence and had been a model prisoner, and because "the two men who fired the shots received life terms."  The two "liberal" justices on the Court -- Ginsburg and Sotomayor -- voted to stay the execution, but Elena Kagan voted with Scalia, Thomas, Alito, Roberts, Kennedy, and Breyer to allow it to proceed. It's impossible to know for certain how Justice Stevens would have voted, but he did proclaim in a 2008 decision that he believes the death penalty to be unconstitutional pursuant to the Constitutional bar on "cruel and unusual punishment".

Yesterday, a similar pattern emerged.  In 2005, two Denver residents were removed from a Bush campaign event solely due to a bumper sticker on their car which read:  "No More Blood for Oil."  They sued, alleging their First Amendment rights had been violated, but the lower court dismissed the case and the appeals court upheld the dismissal.  The Supreme Court yesterday refused to review that dismissal, but in a fairly unusual written opinion dissenting from that refusal, Ginsburg -- joined by Sotomayor -- argued that these ejections constituted a clear violation of these citizens' First Amendment rights which the Court should adjudicate.  She wrote:  "ejecting them for holding discordant views could only have been a reprisal for the expression conveyed by the bumper sticker."  Kagan, again, refused to join those two Justices, siding instead with the conservative bloc and Breyer in voting to refuse the case.

Caution is warranted against reading too much into Kagan's actions, particularly the latter one.  There are multiple factors which the Court must consider in deciding which cases to take, and a refusal to review a case does not denote agreement with the outcome in the lower court (of the two decisions, Kagan's refusal to stay the execution is more revealing).  Moreover, in both cases, the outcome would not have changed had Kagan joined Ginsburg and Sotomayor, so it's possible that her joining with the majority was merely some sort of strategic calculation to curry favor early on.  Still, these two decisions not to join Ginsburg and Sotomayor are substantive ones, and are at least worth noting as very preliminary signs of Kagan's approach on the Court.

[Cain]

Well, I recall people saying similar things about Obama playing centrist in order to pull the biggest ratfuck of all time on the Republicans...and Kagan was picked by Obama, so I'm not holding out any hope of this being some kind of 11th dimensional Zen-chess strategic positioning.

Of course, it is early, and if I'm wrong then I'll be forced to eat humble pie.  But her comments on terrorism and the powers of the executive, in addition to this, suggest she's another "socially liberal" Dem party authoritarian, who doesn't care if you're gay or black or Muslim etc, just if you oppose unlimited state power.

[Bebek Sincap Ratatosk]

Thanks Cain... I like your summation.

[Cain]

No problem.  I agree with the need to be cautious...it's just I hear the theory about strategic positioning concerning Donkle politicians and allies so much, I automatically find it suspicious.  I also think the reasoning by Judge Stevens is suspect, even if I agree with the overall conclusion, or at least it's practical application.

[Cramulus]

and Kagan was picked by Obama, so I'm not holding out any hope of this being some kind of 11th dimensional Zen-chess strategic positioning.

I am stealing that phrase

[Cain]

Feel free, it's a variation on a phrase I picked up from Ian Welsh, a blogger who uses it to...well, ridicule Democratic partisans, basically.  So exactly in the way I do.

[Requia ☣]

the death penalty to be unconstitutional pursuant to the Constitutional bar on "cruel and unusual punishment".

That term has been in use since the 1600's in England and late 1700's in the US... and during all that time the Death Penalty has been an accepted form of punishment. If the people writing the 8th Amendment interpreted the Death Penalty as Cruel and Unusual, you would think that they might have ended the practice then... rather than a couple centuries later. I don't disagree that the Death Penalty is a bad idea... but I think Stevens was really reaching with that interpretation.

Also, I'm not sure about the First Amendment one either. The government can't stop you from saying what you want to say... but does telling you to GTFO of a political rally mean that they are stopping you from saying what you want to say? Or, would the First Amendment only protect them if they got tossed in jail for having the bumper sticker?

I think its a shitty thing for the Bush campaign people to do... but I don't know that its a clear violation.

I think judging Kagan based on those two unclear situations would be a bad idea. Her vote wouldn't have changed anything, except that it might make her look like a liberal judge interpreting the Constitution from the bench *add GOP talking Point Crap here*.

Thoughts?

Stevens isn't opposed to the death penalty in general, but rather the way it is used.

[Cain]

Interesting Kagan news

On May 4, 2009, Harvard Constitutional Law Professor Laurence Tribe wrote a private letter to his former student, President Barack Obama, urging Obama to select fellow Harvard Law Professor (and Dean) Elena Kagan rather than Sonia Sotomayor to replace Supreme Court Justice David Souter, who had just announced his retirement.  That letter was obtained and published yesterday by National Review's Ed Whelan.  Tribe argued, in essence, that Sotomayor is not particularly bright ("not nearly as smart as she seems to think she is") while Kagan is breathtakingly brilliant.  None of that is surprising:  many liberals in the legal community revealingly looked down in scorn upon the perceived lack of intellect of the highly accomplished and intelligent Sotomayor (as Jeffrey Rosen's dissemination of the smears of his anonymous, cowardly "liberal" friends proved), while many Harvard Law Professors instinctively serve as boosters for their fellow Harvard academics.  That's all par for the course.

What I think is most notable is the last paragraph of Tribe's letter:

For all these reasons, I hope you will reach the conclusion that Elena Kagan should be your first nominee to the Court.  And, if I might add a very brief personal note, I can hardly contain my enthusiasm at your first hundred days.  I don't underestimate the magnitude of the challenges that remain, and I continue to hope that I can before long come to play a more direct role in helping you to meet those challenges, perhaps in a newly created DOJ position dealing with the rule of law, but my main sentiment at the moment is one of enormous pride and pleasure in being an American at this extraordinary moment in our history.

By the time Tribe wrote that gushing fanboy paragraph, Obama had already asserted the Bush-replicating state secrets privilege in order to protect torture, rendition and warrantless eavesdropping from judicial review; had, as the NYT put it, "told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush's legal team"; The NYT's Charlie Savage had warned "of Obama's "continued support for [] major elements of its predecessor's approach to fighting Al Qaeda," including "continuing the C.I.A.'s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone"; Obama had demanded that there be no investigations of Bush crimes on the ground that we must Look Forward, Not Backward; and the administration had made clear that it intended to preserve and continue Bush's military commissions system (albeit with some revisions). 

Given that liberal opinion leaders like Tribe were falling all over themselves in praise of Obama even as he pursued such policies -- rather than speaking out against them as they did under Bush -- is it really any surprise that Obama continued on this path?  A mere three weeks after Tribe sent his reverent/employment-seeking letter, Obama announced that he would imprison some detainees at Guantanamo without any trials or tribunals at all  -- a policy Tribe had previously denounced as the epitome of tyranny when Bush did it:  "We can't put people in a dungeon forever without processing whether they deserve to be there."  If even the leading liberal Constitutional scholar was sending Obama unqualified love letters as he embraced the worst of the Bush/Cheney policies, why would the President possibly have thought there was any reason to stop?  He obviously didn't, and hasn't.

Not all was lost, though.  In February of this year, Tribe finally got a job with the Obama administration which he had been so eagerly seeking.  It wasn't the one he told the President he wanted -- a position overseeing the "rule of law" (no need for that) -- but rather a newly created position as DOJ adviser "focused on increasing legal access for the poor."  There's no question that's an urgently needed function, but a mere two months later, in April, The New York Times reported that Tribe -- like all of the handful of liberals appointed to the administration -- had been relegated to a position of powerlessness and irrelevance.

http://feeds.salon.com/~r/salon/greenwald/~3/xo84cZjK-bs/tribe