Tag: supreme court

Are the Courts Progressive?

by on Aug.09, 2010, under Politics

There’s a temptation for liberals, especially when confronted with demagogic initiatives like California’s Prop 187 and Prop 8 and Arizona’s SB1070 to look to the courts and the function of judicial review as the locus of minority protection in U.S. democracy. In its ugliest form, this takes the form of an anti-populist snobbery: “thank god we have the courts to protect us from yahoos.”

An old Scott Lemieux post provides a good summary of why, although this may be the case from time to time, progressive outcomes are rarely due to judicial review. Long excerpt below the fold.

(continue reading…)

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A Change Is Gonna Come

by on Aug.07, 2010, under Politics

[M]arriage has always been understood, with very few exceptions, as the union of a man and a woman. This is true across time, across cultures, across religious traditions, etc. Does it really seem likely that this remarkable consensus is nothing but a nasty desire of one group to flaunt its privileged position over a minority? Is it really feasible that the world’s cultures all consulted about how to put down gay people and came up with marriage as the solution?

William Duncan, director of the Marriage Law Foundation, in National Review‘s The Corner

It is a rather amazing fact that, of the very many dimensions along which the genital activity of one person can be differentiated from that of another (dimensions that include preference for certain acts, certain zones or sensations, certain physical types, a certain frequency, certain symbolic investments, certain relations of age or power, a certain species, a certain number of participants, etc. etc. etc.), precisely one, the gender of object choice, emerged from the turn of the century, and has remained, as the dimension denoted by the now ubiquitous category of “sexual orientation.” The is not a development that would have been foreseen from the viewpoint of the fin de siècle itself[…].

Eve Kosofsky Sedgwick, Epistemology of the Closet

42. Same-sex love and intimacy are well-documented in human history. The concept of an identity based on object desire; that is, whether an individual desires a relationship with someone of the opposite sex (heterosexual), same sex (homosexual) or either sex (bisexual), developed in the late nineteenth century.

a.    Tr 531:25-533:24 (Chauncey: The categories of heterosexual and homosexual emerged in the late nineteenth century, although there were people at all time periods in American history whose primary erotic and emotional attractions were to people of the same sex.);

Judge Vaughn Walker in Perry vs. Schwarzenegger

This is a court ruling, not an academic seminar at Berkeley.

Kathryn Jean Lopez at The Corner

One of the most impressive and least discussed aspect of the ruling that has overturned Proposition 8 is its sense of history. The standard right-wing dismissal of gay marriage is that marriage has for millennia been an institution that joins a man and a woman, and that same-sex marriage hasn’t even been on the agenda of gay rights groups for very long. Even sympathetic critics see the place of marriage on the gay agenda as emerging “as if out of nowhere over just the past few years”, and not without reason.

The excerpt I pulled from the ruling is slightly misleading; for all the attention Perry vs. Schwarzenegger gives to the historical contingency of homosexuality, it gives much more to the evolving qualities of marriage. Racial restrictions and divorce laws loosen over time. Historian Nancy Cott testified about the laws of coverture and the ways in which “the wife was covered, in effect, by her husband’s legal and economic identity.”

“Chauncey” cited above refers to George Chauncey, who authored the amicus Historian’s Brief in Lawrence vs. Texas. There’s been much discussion about how the legal framework of Walker’s decision is aimed directly at Justice Kennedy, seen as the swing Supreme Court vote. Less has been made about the importance of the historical grounding to Kennedy; as Rick Perlstein wrote in an article about Chauncey, “the heart of Justice Anthony Kennedy’s new legal doctrine in the 6–3 decision [of Lawrence vs. Texas], ranging over some dozen paragraphs, is a virtual recapitulation of the Historian’s Brief arguments.”

It would be hard for the Supreme Court to allow a radical challenge to an eternal truth, and right-wing rhetoric like the reductio ad absurdum in the William Duncan quote depends on this. But the case has been carefully made that a century-long shift has led to an incontrovertible conclusion. The challenge no longer looks like a radical upset, but as a mostly typical (and slightly queer) American pattern of expansion of justice and liberty.

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Wise Latina

by on Sep.18, 2009, under Politics

During arguments in a campaign-finance case, the court’s majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled.

But Justice Sotomayor suggested the majority might have it all wrong — and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.

Judges “created corporations as persons, gave birth to corporations as persons,” she said. “There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.”

Sotomayor Issues Challenge to a Century of Corporate Law, Jess Bravin in the Wall Street Journal, 9/17/2009

It would be easy to make too much of this. So why not do the easy thing? Disappointment is clearly going to be the fighting liberal’s default mode for the duration of the Obamallenium, but you can’t have real disappointment without hope. You can’t have low results without high expectations. Under the beach, the paving stones!

In 1996, Ralph Nader ran for president on the Green Party ticket. The relationship, and Ralph in general, would curdle, but speaking in Yale’s Battell Chapel a few days before Clinton’s reelection, Ralph made a very strong case that the only means by which democracy could be meaningfully restored was by curbing the corporation’s outsize role in American civic life. It was a clarifying and totalizing critique that made the sand-the-edges interventions of Clintonism comprehensible and wan. A week later, in Ward One, Nader outpolled Bob Dole by four votes. (As I remember it, Clinton had around 700 votes and Ralph and Bob were each in the high 300’s.)

The problem of corporate personhood was one that Nader had been flogging for a decade; “Corporations Are Not Persons” ran in the New York Times in 1988. As Nader’s stature as a left critic has been dwarfed by his ego-outburst electioneering, critiques of corporate power that address this originary judicial interpellation have become harder to find.

Meanwhile, the trend in liberal jurisprudence is to accommodate the corporation. Last year, Jeffrey Rosen’s New York Times Magazine piece “Supreme Court, Inc.” demonstrated at length the comfort level that the U.S. Chamber of Commerce has with the supposedly liberal wing of the Supreme Court:

In opinions last term, Ruth Bader Ginsburg, Stephen Breyer and David Souter each went out of his or her way to question the use of lawsuits to challenge corporate wrongdoing — a strategy championed by progressive groups like Public Citizen but routinely denounced by conservatives as “regulation by litigation.” Conrad [from the USCOC] reeled off some of her favorite moments: “Justice Ginsburg talked about how ‘private-securities fraud actions, if not adequately contained, can be employed abusively.’ Justice Breyer had a wonderful quote about how Congress was trying to ‘weed out unmeritorious securities lawsuits.’ Justice Souter talked about how the threat of litigation ‘will push cost-conscious defendants to settle.’ ”

Sotomayor’s question above came in questioning for Citizens United v. FEC, the outcome of which depends on whether campaign finance law steps on the First Amendment rights of corporations. The Roberts court is quickly getting a reputation for narrow-bore decisions that don’t upset the apple cart too much, and liberals are strategizing around the best ways to lose there.  Meanwhile, the Obama administration has gotten off to a slow start with judicial appointments; in the New Yorker, Jeffrey Toobin suggests that it will be long time before the Republican judiciary faces any challenge in numbers, let alone in ideology. But if pragmatic, non-ideological judges like Sotomayor can smuggle in a healthy skepticism for corporate personhood, I’ll suspend my disappointment for a little while longer.

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