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Is It Time for the Supreme Court to Have an Evangelical Justice?

Is It Time for the Supreme Court to Have an Evangelical Justice?

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Photo via Wikipedia Commons When the last Protestant on the U.S. Supreme Court, Justice John Paul Stevens, announced his retirement in 2009, the politics of the president’s choice for the vacancy was more than a left/right/liberal/conservative showdown. (more…)

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Read this on CNN today...

And I’m posting it…

“The justices did probe that broader legal question, including an exchange between pro-Proposition 8 attorney Charles Cooper and Justice Elena Kagan.
‘The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will … refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires … of adult couples,'Cooper argued.

To which Kagan said: 'Mr. Cooper, suppose a state said that, because 'we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55.’ Would that be constitutional?’

'No, your honor, it would not be constitutional,’ Cooper replied.”

 

……. because EXACTLY.

 

Or how bout heterosexual couples who can’t (or choose not to) conceive? Should we deny them the right to marry? No? No takers on that idea? Didn’t think so.

salon.com
Justice Kagan sides with the Right on Miranda | Glenn Greenwald

[…] Notably, the last significant Supreme Court case on Miranda came in the 2010 case of Berghuis, Warden v. Thompkins. There, the conservative faction also prevailed in significantly limiting the scope of Miranda protections. Except there, the vote was 5-4, not 6-3. That’s because Justice Stevens joined with Ginsburg, Breyer and Sotomayor in defense of robust Miranda protections; this time, the vote was 6-3 because Stevens’ replacement — Justice Kagan — joined with the conservative majority. That’s what many of us who were concerned about Kagan’s nomination meant when we argued that, even if she often votes with the liberal wing, there is a high risk that, as the replacement for Justice Stevens, she will move an already right-wing court further to the Right, particularly in areas of executive authority and state police power.

Native Americans Law

Native Americans rarely win at the Court. But win they did today … at least on this issue and for now. In Michigan v. Bay Mills Indian Community, the Court divided five to four in an unusual line-up to hold that Michigan’s lawsuit against the tribe, seeking to block the tribe’s establishment of a casino on non-Indian lands, is barred by sovereign immunity. But the majority left open the possibility that the state could still accomplish its goal – shutting down the casino – through other means.

In a five-to-four opinion by Justice Elena Kagan that was joined by the Chief Justice and Justices Kennedy, Breyer, and Sotomayor, the Court began with a survey of Court’s case law dealing with immunity for tribes. “The upshot,” the Court concluded, “is this: Unless Congress has authorized Michigan’s suit, our precedents demand that it be dismissed.” The Court agreed with the state that the Indian Gaming Regulatory Act “partially abrogates tribal sovereign immunity” by allowing a suit to enjoin gaming activity on Indian lands, but the Act does not come into play here because the gaming activity at issue in this case does not occur on Indian lands.

The Court acknowledged the “apparent anomaly” in the law: although states can sue tribes for illegal gaming activity on Indian lands, they cannot sue them for the same activity off Indian lands. “But,” the Court continued, “this Court does not revise legislation … just because the text as written creates an apparent anomaly as to some subject it does not address.” And – significantly – even if the state can’t sue a tribe for off-reservation illegal gaming, it still “has many other powers over tribal gaming that it does not possess (absent consent) in Indian territory.” Most state laws will apply to Indians off reservation, for example: Michigan “could, in the first instance, deny a license” for an off-reservation casino; if the tribe went ahead with the project anyway, it could sue tribal officials to stop the gaming activity and, if necessary, invoke its criminal laws. Moreover, states also could seek a waiver to allow lawsuits for off-reservation gaming activity as part of its compact with the tribe regarding on-reservation gaming.

The Court also declined the state’s invitation to revisit its earlier decision in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, holding that tribes have immunity from suit for commercial activities off Indian lands. The Court emphasized, among other things, that it “does not overturn its precedents lightly” – particularly when, as in here, “Congress exercises primary authority in this area and ‘remains free to alter what we have done.’”

Justice Sotomayor wrote a separate, eleven-page concurring opinion to “further detail why both history and comity counsel against limiting Tribes’ sovereign immunity in the manner the principal dissent advances.”

Justice Scalia wrote a separate, one-paragraph dissent to express his view that “Kiowa was wrongly decided”; Scalia also joined the principal dissent, by Justice Thomas (which was also joined by Ginsburg and Alito). In the dissent’s view, the Court in Kiowa “adopted a rule without a reason” and should have reversed course here. Justice Ginsburg also wrote a brief separate dissent to express her view that “the Court has carried beyond the pale the immunity possessed by States of the United States.”

During a 2010 “Good Morning America” interview about the appointment of Kagan and future challenges facing the Supreme Court, Justice Stephen Breyer suggested that free speech standards might need to be re-evaluated, given that the crowded theater in which it once would have been illegal to shout “fire” now encompasses the whole world. Breyer is right: In a society in which technological advances have reduced the distances between individuals to zero, we must recognize that our online communications, far from being shouted into an electronic abyss or vacuum, have the ability not merely to offend but to threaten and terrorize others.
Justices uphold broad use of anti-bank fraud law

Justices uphold broad use of anti-bank fraud law

WASHINGTON (AP) — The Supreme Court has upheld the broad application of a federal anti-bank fraud law

The justices on Monday upheld the bank fraud conviction of Kevin Loughrin, who used stolen checks as part of a scheme to take merchandise and cash from a Target store in Utah. Loughrin was sentenced to three years in prison.

Justice Elena Kagan said for the court that the law does not require…

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Supreme Court Rules Against Straw Purchases Of Firearms

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This is certainly a surprise. I suppose they’re actually starting to worry about their credibility:

WASHINGTON — The Supreme Court dealt a rare blow to the gun lobby Monday by ruling that purchasers must report when they are buying firearms for other people.

The 5-4 decision upheld two lower courts that had ruled against so-called straw purchasers, even though the justices acknowledged that Congress left loopholes in gun control laws passed in the 1960s and 1990s.

For gun purchasers to be allowed to buy from licensed dealers without reporting the actual final owners of the firearms, the justices said, would make little sense.

“Putting true numbskulls to one side, anyone purchasing a gun for criminal purposes would avoid leaving a paper trail by the simple expedient of hiring a straw,” Justice Elena Kagan wrote for the slim majority.

Kagan, a New Yorker who acknowledged during her 2010 confirmation hearings that she was not very familiar with guns, was opposed by four conservative justices, led by Justice Antonin Scalia – who famously has taken her hunting on several occasions.

“No piece of information is more important under federal firearms law than the identiry of a gun’s purchaser – the person who acquires a gun as a result of a transaction with a licensed dealer,” Kagan said.

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Supreme Court Rules Against Straw Purchases Of Firearms

External image

This is certainly a surprise. I suppose they’re actually starting to worry about their credibility:

WASHINGTON — The Supreme Court dealt a rare blow to the gun lobby Monday by ruling that purchasers must report when they are buying firearms for other people.

The 5-4 decision upheld two lower courts that had ruled against so-called straw purchasers, even though the justices acknowledged that Congress left loopholes in gun control laws passed in the 1960s and 1990s.

For gun purchasers to be allowed to buy from licensed dealers without reporting the actual final owners of the firearms, the justices said, would make little sense.

“Putting true numbskulls to one side, anyone purchasing a gun for criminal purposes would avoid leaving a paper trail by the simple expedient of hiring a straw,” Justice Elena Kagan wrote for the slim majority.

Kagan, a New Yorker who acknowledged during her 2010 confirmation hearings that she was not very familiar with guns, was opposed by four conservative justices, led by Justice Antonin Scalia – who famously has taken her hunting on several occasions.

“No piece of information is more important under federal firearms law than the identiry of a gun’s purchaser – the person who acquires a gun as a result of a transaction with a licensed dealer,” Kagan said.

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So Charles Cooper, the man defending the ban on gay marriage from Prop 8 that passed in California that has now been brought to the Supreme Court said that marriage was for a purely "procreative purposes.“  So Justice Elena Kagan tried to make him realize that people who are over the age of 55 who get married can’t have children in that marriage, so taking in to account his argument, why would we let them get married?  Now I know people are talking about this left and right.

The thing I want to mention is… did you hear this exchange of dialogue?  Did you listen to it?  Cause I did.  And it took Cooper a good 90 seconds or even a full 2 minutes to realize that it’s the WOMAN who can’t procreate.  Because he keeps talking about men, and how ”Very few men outlive their fertility“ (yes that’s a direct quote).  So he keeps talking about men, how of course men can procreate at basically any age so Cagan’s argument is obviously invalid.  And then it finally dawns on him abou 90-120 seconds in to the argument that there’s this other thing called menopause that affects women, and makes them unable to procreate and that was what Cagan was talking about.  I mean how fucking stupid can you be? When you are talking about couples reproducing after 55 and all you do is focus on the male in the relationship, and it takes you up to two minutes to realize there’s also a woman involved in a mariage, that’s when your argument becomes invalid.

Comment:

Why do you think she was put there?

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Court announcement raises recusal questions

for Kagan, Thomas

The Supreme Court’s announcement Monday that it will hear challenges to President Obama’s health care law have put the spotlight on Justice Elena Kagan, who worked in the administration while the law was being written and, conservatives argue, helped craft its legal defense.

“Before the Supreme Court case is heard we need to know if Justice Elena Kagan helped the Obama Administration prepare its defense for Obamacare when she was solicitor general. The Justice Departmentmust answer serious questions about whether Justice Kagan has an inherent conflict of interest which would demand that she recuse herself from the Obamacare case,” said Rep. John Fleming, Louisiana Republican.

At the same time, liberal groups and Democrats in Congress have been pushing for months for Justice Clarence Thomas to recuse himself, citing his wife’s work with a group that opposes the health care law as an indication he cannot rule impartially.

At stake in the case is the fate of the president’s massive health care overhaul, which passed Congress on the strength of Democratic votes last year and has seen a checkered record in lower courts.

The case will likely be argued next spring, and a recusal — if it does come — could happen any time.

Justices appear to lean in McDonnell's favor

Former Virginia Gov. Bob McDonnell had a surprisingly strong outing at the Supreme Court Wednesday, as majority of the court appeared to lean in the direction of overturning the corruption convictions a jury returned against him two years ago.

Two members of the court’s liberal wing — Justices Stephen Breyer and Elena Kagan —expressed serious concerns that the government’s stance could expose public officials to prosecution for all kinds of acts routinely performed for political donors. Breyer appeared particularly troubled that upholding the convictions would shift too much power to federal prosecutors.

“My problem is criminal law as the weapon to cure it,“ Breyer said. "This is a very basic separation of powers problem for me.”

Breyer said the government’s position would open public officials to the possibility of prosecution every time they are taken to lunch by a constituent and then make an inquiry on their behalf. “I’m not buying into that,” he said.

With three conservative justices on the shorthanded court expressing similar worries, McDonnell seemed to stand a good chance of getting a ruling in his favor and avoiding the two-year prison sentence he is facing.

Justice Anthony Kennedy said he didn’t think relying on juries to separate the cases of corruption from those that aren’t was much of a safeguard.

“You’re telling senators who are having a lunch, ‘Don’t worry. A jury has to be convinced beyond a reasonable doubt and that’s tough.’ That’s your answer?” Kennedy said skeptically.

McDonnell was convicted on 11 corruption-related counts in 2014 after he and his wife took more than $175,000 in gifts and loans from a Virginia businessman seeking state studies of a tobacco-based dietary supplement. The government said McDonnell’s largesse from businessman Jonnie Williams was part of a corrupt deal to advance the businessman’s interests.

During a five-week trial, prosecutors said McDonnell repeatedly intervened on Williams’ behalf, sending messages encouraging state university researchers to conduct trials with the product and staging a product launch at the governor’s mansion. The prosecution maintained the help was a “quid pro quo” or trade for the gifts from the businessman, while the defense insisted there was no connection and the governor would have provided similar help to any Virginia business.

A federal court jury in Richmond, Va. convicted McDonnell on 11 of 13 felony counts he faced, including “honest services” fraud, extortion and conspiracy.

Last year, a federal appeals court upheld those convictions and denied McDonnell’s request to remain free while he petitioned the Supreme Court to take the case. In an unusual move, the justices — then at their full complement of nine, before the death on Antonin Scalia — granted McDonnell’s request to stay out of jail as he pressed his Supreme Court appeal.

Many of those supporting McDonnell framed the case as an opportunity for the justices to use the First Amendment to further de-regulate political activity, much as the court did with the Citizens United decision in 2010.

That strategy may have been a good one before the death of the conservative Scalia in February, but it may have lost its luster since that time. McDonnell now needs the votes of five justices to prevail, including at least one Democratic appointee.

Picking up a justice from the court’s liberal wing required arguments less focused on the optimal functioning of the political system and more focused on due process, including the question of whether existing law gave McDonnell fair notice of what kinds of activities were illegal. That’s more of a traditional civil liberties, defense-lawyer approach, but it could have more resonance with the liberal justices McDonnell needs to win over.

If the court deadlocks 4-4, a significant possibility with the depleted, eight-member high court, no new precedent will be made for future cases and the appeals court ruling upholding McDonnell’s conviction will stand. That would leave McDonnell all but certain to be sent, within a matter of weeks or months, to serve his two-year prison sentence.

The fate of McDonnell’s wife Maureen also hangs in the balance at the high court. She was also convicted of eight felony counts at the 2014 trial and sentenced to a year in prison. Since the issues overlap, her appeal and prison term are on hold pending the outcome of her husband’s Supreme Court case.

McDonnell’s case is the last one to be argued before the justices this term. The court’s sessions next month through the end of June are expected to be devoted to releasing opinions in the cases argued earlier in the year.