Category Archives: SCOTUS

Citizens United 2.0

The Corporate States of America just got itself a new jolt of freedom thanks to Chief Justice John Roberts and his Happy Conservative Warrior Quartet.

[T]he Supreme Court continued chipping away at federal campaign finance reforms with a 5-4 ruling striking down the federal cap on the total amount of money an individual donor can spend supporting candidates and political parties during a two-year election cycle.

The ruling, which split the high court along ideological lines, eliminates the aggregate the cap on the total amount of money an individual can donate to candidates and party fundraising committees during an election season, which was set at $123,200 for 2013 and 2014. That cap was so high that only…several hundred mega-rich donors reached it during the last election cycle.

Meaning that this ruling effects, at most, a mere few hundred people. Fortunately, those few hundred are the richest few hundred people in the country and who deserves a self-serving law that crews democracy more than them?

The ruling also could inflate the power of joint fundraising committees, which take large donations from donors and funnel the cash to candidates and party committees with full knowledge of who signed the original check.

“Eliminating these limits will now allow a single politician to solicit, and a single donor to give, up to $3.6 million through the use of joint fundraising committees,” said Michael Walden, president of the Brennan Center for Justice. “Following the Citizens United decision, this will further inundate a political system already flush with cash, marginalize average voters, and elevate those who can afford to buy political access.”

I don’t think Mr Walden gets it. See, money is free speech and in the CSA you only get as much FS as you can afford to buy and those few hundred have made sure you don’t get paid enough to buy hardly any so they get more than you or me and that’s the way it should be.

Get used to it. If you can’t afford to pay for an election, you don’t deserve to have one.

A Life of Sacrifice

All the great philosophers and theologians since the time of the [early] Greeks have lauded the sacrifice of one’s self and one’s possessions for the sake of the greater good of others as the most honorable action a man can take. Therefore, the great thinkers of the modern rich right wing have implemented a society which makes it not only a privilege for you to sacrifice for the greater oligarchic good but a necessity, thus insuring your entrance into, if not saintliness then at least acceptability within the servant class.

The recent Supreme Court decision allowing the Constitutionality of Obama’s health care bill can be seen as a case in point. With no effort on your part and despite whatever qualms you may have about the way the bill tends to subvert, deny or delay actual treatment, you will be required to pay health insurance corpo’s a sizable chunk of your income for advising you that your illness isn’t covered. (That’s apparently in the Constitution somewhere.)

In this way you will be allowed to sacrifice not just your income but your health for the good of insurance corpo’s whose profits are not yet obscene enough to cause riots. Which seems to be their goal.

Don’t let yourselves be taken in by the appearance of unrestricted greed. Remember, they’re doing it for you, not to you.

Troy Davis May Get New Trial

After several weeks of dicking around, the Supreme Court has sent Troy Davis’ case back to Georgia. Continue reading

Troy Davis Execution Date Set: BOYCOTT COCA COLA

As I noted elsewhere, the Bush/Reagan Supreme Court turned down Troy Davis’ appeal for a new trial and did so without comment, as if they didn’t need to explain why they’re allowing an execution to go forward in a case where the evidence was so insubstantial as to be non-existant and 4/5 of the witnesses recanted, claiming they’d been pressured by police and coached by prosecutors eager for a conviction.

Yesterday afternoon, Judge Penny Haas Freesemann rescheduled Davis’ execution date, setting it for the 27th of this month.

The State of Georgia is owed very little respect for the way this has been handled. Along with its other shameful acts – trying to bar the teaching of evolution in public school science classes, or allowing the GOP to steal both Senate seats as well as the governorship with doctored e-voting machines, slime campaigns, and vote caging, for examples – it is prepared to execute an almost certainly innocent man on skimpier evidence than would be required to make you pay a traffic fine.

The GOP has gone way too far, and killing a man to keep from embarrassing the cops who were played for suckers by Red Coles and the prosecutor who may have intimidated witnesses to get a conviction is a good place to get them to stop. We’ve had enough of this revenge crap, we’ve had enough of innocent people dying so the Pubs can claim they’re fighting crime – a bad, sick joke considering how many of them have been caught breaking the law, right up to the president.

I’ve been saying for a while that it’s time to fight back but it was TMiss who came up with a way to do it. Let Sonny Perdue and Coke know we’ll start a boycott of Coca Cola if Davis dies.

Continue reading

Troy Davis Appeal Rejected by SCOTUS

It was never much of a chance, not with the robotic law-and-order types conservatives have been able to get assigned to the US Supreme Court filling up the seats, but it was a chance. If there was enough pressure, enough noise, enough people asking uncomfortable questions, maybe even Fat Tony Scalia might have reconsidered for the sake of his almost certainly unpleasant legacy the way he did over some labor law – which he hates – when a woman got screwed. Again.

But it wasn’t much of a chance and now it’s over. The Supreme Court has refused to hear Troy Davis’ appeal for a new trial.

The U.S. Supreme Court on Tuesday cleared the way for Troy Anthony Davis’ execution, declining to enter a contentious debate as to whether the condemned inmate was the real killer of a Savannah police officer in 1989.

The court, without explanation, refused to hear his appeal even though seven of nine key prosecution witnesses have recanted their testimony since the 1991 trial. Just three weeks ago, the high court had halted Davis’ execution with less than two hours to spare.

The family of the dead officer, Mark MacPhail, is thrilled. They want Davis dead whether he’s the right guy or not, mainly because they want their part of this ordeal to be over.

Continue reading

Supreme Court Delays Decision on Troy Davis Appeal

The all-out efforts by activists from all over the country to win Troy Davis a new trial hit a stone wall in Georgia – which has done little it can be proud of throughout this episode – but may have frightened the bunnies of the Supreme Court into giving the case a harder look.

The SCOTUS promised two weeks ago that it would have a decision last week about whether it would hear the Davis appeal. It is now 2 weeks and the Court is still delaying its decision.

The U.S. Supreme Court apparently needs more time to look at an appeal from death-row inmate Troy Anthony Davis, whose claims of innocence have attracted international attention. The high court issued orders Monday addressing the appeals of numerous cases, but none as to whether it will accept or reject Davis’ appeal. Instead, the court, in a listing on its docket, said it will meet in a private conference on Friday to consider Davis’ appeal.

Continue reading

SCOTUS Score: One and One

The Roberts Court yesterday handed the Bush Administration one victory and one defeat, and the victory may turn out to be Pyrrhic.

1. Detainee Suit Rejected

The SCOTUS won’t be hearing a suit filed by almost 400 Gitmo prisoners trying to restore the legal rights taken away from them by Bush and the Republican Congress.

The court decision was a significant victory for President Bush, who has asserted for nearly six years that the fate of hundreds of detainees, held without charges as alleged terrorists at the U.S. naval base in Cuba, should be determined by secret military tribunals. The decision leaves intact, at least for now, a measure passed at the administration’s urging last year when Congress still was in Republican hands that denies Guantanamo Bay detainees the right to such habeas corpus petitions.

This despite the fact that the Court has ruled not once but twice in the last three years that the detainees have the right to petition the courts to “contest their detention”. Continue reading

Clintonite Appeals Court Judge Upholds Reaganite Judge in CIA Kidnapping Case

US District Court Judge TS Ellis III, who recently dismissed the corruption suit against Custer Battles on the fairly specious grounds that the CPA was not a “US govt entity” without explaining how it could rationally be considered anything else, last year dismissed Khaled Al-Masri’s lawsuit against the CIA for kidnapping and torture on the dubious grounds that “state secrets” might be “exposed” by a public trial. Al-Masri appealed that decision and yesterday the Fourth Circuit, led by Clinton appointee Robert B King, upheld Ellis’ ruling.

In May 2006, Judge T. S. Ellis III, of the Federal District Court in Alexandria, Va., dismissed the suit under the so-called state secrets privilege. The privilege can require courts to limit or dismiss suits that might disclose information harmful to national security. The decision yesterday, by the Court of Appeals for the Fourth Circuit, affirmed that ruling.

“We recognize the gravity of our conclusions that el-Masri must be denied a judicial forum for his complaint,” Judge Robert B. King wrote for a unanimous three-judge panel of the court. “The inquiry is a difficult one, for its pits the judiciary’s search for truth against the executive’s duty to maintain the nation’s security.”

Lawyers for the American Civil Liberties Union, which represents Mr. Masri, said there was enough public information about his ordeal to allow his suit to be adjudicated without endangering national security. The appeals court disagreed, saying that Mr. Masri could not win his case without exposing “how the C.I.A. organizes, staffs and supervises its most sensitive intelligence operations.”

Furthermore, the court continued, the defendants “could not properly defend themselves without using privileged evidence.”

King’s argument is tantamount to giving the CIA carte-blanche to do anything it wants to do anywhere in the world without either oversight or accountability and – as the Church Committee proved thirty years ago – there is no such immunity from prosecution enshrined in either US law or international law, nor was it ever the intent of Congress to give the Company such blanket immunity. Continue reading

The NYT Editorial Board on the Cheney Decision

They’re disappointed.

In its ruling yesterday, the court — with Justice Scalia in the seven-member majority — sent the case back to a lower court, instructing it to give greater consideration to Mr. Cheney’s separation-of-powers argument. Although the decision does not resolve the dispute, it makes it more likely that the task force records will remain secret. Even if they eventually become public, they are not likely to do so before this year’s election.The court is right that inquiries aimed at the executive branch must meet a higher standard, but its ruling leans too much toward secrecy. As Justice Ruth Bader Ginsburg notes in a dissent, Mr. Cheney could have asked the trial court to narrow the questions it allowed. Instead, he challenged its ability to elicit any information at all.

When Congress passed the Federal Advisory Committee Act, it wanted the public to be able to monitor the influences exerted on government policy makers. The court’s decision is likely to frustrate that important goal.

Relax guys. As soon as a Democratic Pres or Veep tries to use the same arguments, the Scalia majority will be all in favor of openness again, just as they were when Clinton used them over the Health Task Force.

This is the most politicized SCOTUS we’ve had in a hundred years and it’s a mistake to treat any decision they make that involves this Admin as if it were objective or judicial.

Pinochet Clement Defends Gitmo

Paul D Clement, Deputy Solicitor-General, is arguing the Administration’s case against applying standard judicial procedures to the Gitmo prisoners. In the process, he is proving beyond the shadow of a doubt that the BA is distinctly undemocratic in outlook and instinctively authoritarian in nature.

This conclusion doesn’t arise just because they’re defending a basically indefensible concept; what is far more damning are the arguments they’re using to do it. In a court of law–the highest court in the land, no less, Clement began by saying that it was “remarkable that we have to confront this question when our troops are still on the ground in Afghanistan,” an argument that pre-supposes the SCOTUS has no role during a war. But that was only the beginning.

A majority of the justices expressed some degree of concern over the breadth of the administration’s position. Justice Sandra Day O’Connor asked Mr. Clement why “a neutral decision maker of some kind” could not be provided to determine whether a detainee is being properly held. “Is that so extreme that it should not be required?” she asked.Mr. Clement said the potential detainees’ initial screening, sorting those to be held from those who need not be, met that requirement. “For all intents and purposes, that is a neutral decision maker,” he said.

Um, what initial screening would that be? Is Mr Clement talking about the confab on the battlefield where the detainees were picked up? Or the kangaroo court in Gitmo run by the military–oh, darn. THERE WASN’T ONE.

Wait, it gets better. When Justice Ginsberg didn’t see why the detainees shouldn’t have “a forum” during which they could “explain themselves”, Clement answered that they already had one: their interrogation. “The interrogation process itself provides an opportunity for an individual to explain that this has all been a mistake.”

Is that right? Doggone, we done been wastin’ a awful lot o’ money on lawyers an’ judges and courts iffen that’s true. Hell, why, we could just say a police interrogation gives a suspect every chance to state his case to the cops an’ iffen they don’t buy it, then he’s guilty, pure an’ simple. Wham! Off he goes to jail for the rest o’ his life, and we’re done. No damn dumb “appeals” or even a tee-rial to appeal about. We could save $Billions$. We don’t need all that junk. Screw it. We got our justice system–the police.

This argument has been the justification and rationalization of every dictator of the past 100 years; the Soviets even enshrined it in law. Pinochet, accused of executing prisoners without a trial, pointed to the secret police interrogation as the only “trial” that was needed. He even used the same excuse–that these people were dangerous “anti-social terrorists” (he was talking about journalists, students, labor leaders, playwrights, teachers, and priests, by the way) and that the State was in a war for its survival and couldn’t afford little luxuries, like, say, a judicial system that might decide that some of his political the State’s enemies were innocent. In the Soviet Union, Stalin argued that his pogroms were necessary for “the security of the people and the people’s state”, and used the fear of the late 30’s when Hitler and Europe were readying for war to dismantle what was left of the old Czarist legal system (not much) and embark on the greatest murder spree in history in 1938.

What’s going on here? The virulently anti-Communist Republican right takes control and turns out to be exactly like the Soviets they hated? Aping their policies, mimicking their rationalizations, copying their techniques? But Mr Clement doesn’t have any problem with that.

“Doesn’t the court have some business intervening at some point if it’s the Hundred Years’ War or something?” Justice Stephen G. Breyer asked.Mr. Clement replied, “I’m not quite sure what you have in mind that they would intervene on.”

Golly, Paul, I dunno. Maybe BEING RAILROADED BY AN ADMINISTRATION THAT WANTS TO MAINTAIN AN UNPOPULAR WAR BY SHOWING US HOW ENDANGERED WE ARE? How about the possibility that the Administration’s designation was just WRONG? How about that? Over 100 of the Gitmo prisoners were released after almost two years of confinement because of lack of evidence. The Gitmo authorities arrested Capt Jimmy Yee for sedition and espionage and then had to drop the charges when his lawyers proved there was NO evidence to back them up. How about that? I mean, a trial is asking too much?

Justice Anthony M. Kennedy, whose position appeared most in doubt, pressed Mr. Clement at one point for some sign of a concession. “I’m taking away from the argument the impression, and please correct me if I’m wrong, that you think there is a continuing role for the courts to examine the reasonableness of the period of detention,” he said in a hopeful tone.Mr. Clement was quick to correct him. “Well, I wouldn’t take that away, Justice Kennedy,” he said.

Translation: The Bush Admin does think that there is NO “continuing role for the courts”. As fas as they’re concerned, the Commissar-in-Chief is the one and only authority and everybody else ought to just shut up and go home like good little comrades.

Put this insane argument against the re-writing of history Seattle called our attention to, and this Admin isn’t just Orwell-like, it is Orwell brought to life. 1984 has Officially Arrived in the US, courtesy of George W Bush, First Emperor of America. Rove admires Imperial Rome? Well, Karl, your dreams have just come true. Enjoy it while you can because in November–pffffft!

The Pledge of Allegiance, Part IV–Legal Dangers

OK, this is going to get a little musty with legal mumbo-jumbo, but try to stay with it if you can because what’s going on with the Pledge is symptomatic of what I think is dangerous in the course the courts have chosen concerning the relationship of religion and govt–not dangerous because it’s necessarily the wrong moral course, it isn’t, but because it’s moving toward a legal pothole big enough to swallow a whale.

First let’s tackle the SCOTUS. The Supreme Court is the final word in US jurispridence but that doesn’t mean its decisions are final. They aren’t. The SCOTUS reverses itself fairly regularly, and so it should. How can it do that if its decisions are final? Because it isn’t the decisions that change, it’s the interpretation of the issues underlying the decision. That may seem obvious, but remember that we’re talking legally here, not logically. Legal logic and ordinary logic are two different things, often poles apart. Here’s an example from precedent around the Pledge, though not directly related to it.

In Lynch v Donnelly, the Court held that a religious Christmas display owned for many years by a city government, a creche, was allowable because it served a “secular purpose”–celebrating a national holiday.

The display is sponsored by the city to celebrate the Holiday and to depict the origins of that Holiday. These are legitimate secular purposes. The District Court’s inference, drawn from the religious nature of the creche, that the city has no secular purpose was, on this record, clearly erroneous.

In effect, the display had become over the years a community institution like a Thanksgiving Day Parade or a county fair, and city ownership was considered to be a community convenience, conferring nothing in the way of “endorsement” of the religion involved. The Court considered “the benefit to religion” to be “indirect, remote, and incidental.” Now, Phaedrus is going to say that’s BS, rationalization, and a clearly unConstitutional decision, but that’s the kind of hair-splitting legal insitutions do.

It may have been–probably was–a bad decision, but it was based on a “grandfather-clause” mentality in law that protects legal decisions from being blown by every prevailing wind of public opinion that comes along, and a fear of throwing the baby out with the bathwater. Now look at the basis of Justice O’Connor’s concurring opinion in the same case:

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions …The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.

Doesn’t sound like she “concurs” at all, does it? Yet the facts haven’t changed and she isn’t dissenting from the majority opinion, she’s supporting it. She’s saying that the city-owned creche doesn’t “send a message to nonadherents that they are outsiders”, yet it would be very easy to use her interpretation to support the dissenters rather than the majority, and in a future case that’s very likely to happen. Of such contradiction is High Law made.

Before we return to the Pledge, let’s look briefly at one more case. In Lee v Weisman, two Jews brought suit over a supposedly non-sectarian prayer given by a Rabbi at a school graduation, arguing that “the state[‘s] participation [is] co-ercive” given that it “not only determined that an invocation and benediction should be given, but also selected the religious participant and provided him with guidelines for the content of nonsectarian prayers.” In his majority opinion, Justice Kennedy wrote:

What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy. (emphasis added)

By using the word “appear” in this context, Justice Kennedy has done something the Lynch v Donnelly decision didn’t do–he has injected the amorphous, ever-changing quality of personal emotional response into a legal judgment, opening the door to arguments, for example, that removing the words “under god” from the Pledge could “appear” to a believer to be employing the machinery of the state to enforce a deliberate rejection of the public expression of religious belief, which would clearly be unConstitutional.

My point here is not that the majority opinion was morally wrong, it wasn’t. What’s significant are the grounds on which the opinion was based. Any argument that Constitutionality is dependent upon “appearances” or “offensiveness” or any other ill-defined and infinitely malleable generalization dependent entirely on a personal response–“the eye of the beholder”–can, if public opinion shifts, be used just as readily on the other side in the future. And I can promise you it will be if the opportunity arises.

This is a small example of the pitfalls inherent in law where, if you’re not very careful, you can wind up doing the opposite of what you think you’re doing. It’s also an argument for not appointing indifferent legal minds to the highest court in the land just because they happen to hold some views compatible with your political goals. Justice Kennedy’s decision was correct but the basis he used to reach it is exceedingly shaky and carries within it the seeds of its own reversal, fertile ground for an assault by religious groups who see any attempt to contravene their beliefs as “offensive” and “appearing” to make them second-class citizens because of those beliefs. It endlessly complicates and even endangers the separation-of-church-and-state doctrine with its introduction of what is at root an emotional appeal rather than a legal theory.

Look at the gay marriage issue and the arguments that have arisen against it from the religious right. What are they based on? That gay marriage “offends” their historical understanding of and religious dogma concerning what marriage is and is not according to their faith, and that it somehow impinges on their Constitutional right to worship as they see fit. It is the rationale in SCOTUS decisions like Justice Kennedy’s that could allow them to make those arguments successfully at some time in the future. And don’t think they won’t try.

Unfortunately, a number of recent Court cases involving the SOCAS doctrine contain the same flaw, including Newdow’s. He is contending that the words “under god” harmed his daughter because she was forced to “watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that our’s [sic] is ‘one nation under God.'” What harm? There is no physical injury involved so the harm has to be emotional–it makes her “feel bad”, makes her “feel like an outsider” (remember Justice O’Connor’s definition?), or it “offends” her, emotions that fundamentalist Christians claim to feel as well. They do not see themselves as the dominant religion but as a persecuted minority whose right to live by their religious values is constantly threatened by the pervasive secularism of the surrounding society. It isn’t true, of course, but the accuracy of the feeling isn’t the basis of the Court’s decisions–it is the feeling itself and the “appearance” of discrimination that mandated the rulings.

It wouldn’t take much to reverse the Lee v Weisman decision–a slightly different Court, an alternate interpretation of Justice Kennedy’s argument, and a bit more in the way of precedent that sanctions mental and/or emotional anguish as legitimate grounds for a case. The strongest way to turn back challenges to the SOCAS is to change the First Amendment so it clearly lays out the prohibition as being one against all connections between govt and religion, and forbids acknowledgement as well as establishment. Since that’s not terribly practical, the second-best way is to turn back SOCAS arguments that are based on personal emotional response. Otherwise, we could be hoisting ourselves on our own petard in the not-too-distant future.

Scary Scalia

I missed this, but on Monday Justice Antonin Scalia banned the press from an appearance to accept a Free Speech Award! Get that concept? From ABC News:

Supreme Court Justice Antonin Scalia banned broadcast media from an appearance Wednesday where he will receive an award for supporting free speech.The City Club usually tapes speakers for later broadcast on public television, but Scalia insisted on banning television and radio coverage, the club said. Scalia is being given the organization’s Citadel of Free Speech Award.

“I might wish it were otherwise, but that was one of the criteria that he had for acceptance,” said James Foster, the club’s executive director.

Well, then, maybe, James, you should have rescinded the award! There was some reaction.

The ban on broadcast media, “begs disbelief and seems to be in conflict with the award itself,” C-SPAN vice president and executive producer Terry Murphy wrote in a letter last week to the City Club. “How free is speech if there are limits to its distribution?”

I don’t know, I don’t know. No matter how hypocritical you think these people are, they can always go another step.

Thanks to Mike Hersh for the link, and here’s a taste of what he has to say about it.

According to the Associated Press, “Supreme Court Justice [sic] Antonin Scalia banned broadcast media from an appearance Wednesday where he will receive an award for supporting free speech.” This is typical 1984 Orwellian lunacy. Honoring someone who is calling for severe limits on free expression as a champion of free speech!The same article reports that the man who unconstitutionally ordered a halt to the fair, full vote count in Florida says we have too many freedoms and denies the Constitution prevents government from cracking down on dissent. As Bush drags us into war, Scalia seems overly eager to finish off what’s left of our Constitutional rights.

Scalia’s view of the Constitution is extremist, frightening and wrong: “The Constitution just sets minimums,'” Scalia said, according to the AP. “Most of the rights that you enjoy go way beyond what the Constitution requires.” This is fascistic nonsense, typical of Scalia and the extremist “Federal Society” right wingers he represents

Minimums. Oh. Um, what’s the minimum “free speech” we’re allowed, again, Tony?

The Scales of Scalia

Antonin Scalia has a reputation as a brilliant conservative jurist, but every time I delve into one of his decisions I emerge from the gloom wondering how he came by it. His decisions seem to me riddled with puerile, self-indulgent justifications and facile, even superficial argumentation based more on ideology than law. Even if his reputation was for brilliant legal twists and turns to get the law to mean what it doesn’t mean, he wouldn’t deserve it. For the most part, his wordy interpretations are little more than high-blown legal rhetoric, thin on law and thick with presumption. He’s tricky and manipulative, clever but not “brilliant” by a long shot.All these qualities are on display in a 21-page memo (pdf file) defending his refusal to recuse himself from sitting in judgment on his friend Dick Cheney’s refusal to release the records of his Energy Commission. In summary, his arguments amount to:

1. He’s been going duck hunting for a long time.
2. He was never alone with Cheney and they never talked about the case.
3. Everybody does it, so strict recusal policies would cripple the Court.
4. The SCOTUS Recusal Policy of 1993 says he doesn’t have to.
5. Tradition says he doesn’t have to.
6. It’s a “run-of-the-mill” legal case, so he doesn’t have to.
7. Cheney isn’t singled out in the complaint as the party responsible for “caus[ing] the involvement of energy executives.”
8. And anyway he ended up buying round-trip tickets to get back so the trip cost exactly what it would have cost if he hadn’t gone down with the Veep.
9. Besides, he knows the rules and we just have to trust him.

When I was a kid we used the same kind of excuses–“I wasn’t there, and even if I was there I didn’t do it, and even if I did it I didn’t mean to, and even if I meant to I wouldn’t have if somebody else hadn’t made me, and anyway it was an accident.” Yeah, right.

I’m not going to debunk all eight excuses reasons point-by-point–that would try your patience and my low tolerance for BS–but I want to take a couple of the most egregious rationalizations for a spin so we can see how the mind of the most “brilliant” jurist on the SCOTUS actually works. I think when we’re done, the 2000 Florida outcome will no longer be a mystery.

1. He’s been going duck hunting for a long time.

It was, of course, all perfectly innocent.

“For five years or so, I have been going to Louisiana during the Court ’s long December-January recess, to the duck-hunting camp of a friend…”

No biggie. It’s not like he went there specially to talk to Dick or something. By-the-by, how did Cheney wind up going along this year? Why, Tony invited him.

“I learned that Mr. Carline was an admirer of Vice President Cheney. Knowing that the Vice President, with whom I am well acquainted (from our years serving together in the Ford administration), is an enthusiastic duck-hunter, I asked whether Mr.Carline would like to invite him…” (emphasis added)

Just a couple of buddies out to bag a few birds.

2. He was never alone with Cheney and they never talked about the case.

Of course the unfortunate Veep has to fly Air Force Two on this little junket “[b]ecause of national security requirements”, so being a good buddy and all he invited Tony to fly down with him. Curiously, though Scalia makes a big point of swearing that he never talked to Cheney on the hunt itself, he says nothing about what they might or might not have talked about on the plane down. Since this is a legal mind we’re talking about, one has the right to draw a conclusion from this deliberate omission: he must have talked to Dickie during the flight. A prosecuting attorney would not only be justified in drawing that conclusion from Scalia’s deliberate lack of comment, he would be justified in going further and assuming that they talked about Cheney’s case, else why would Tony be so adamant about the hunt and so silent about the flight?

In a cross-examination, a prosecutor could run a freight-train through a gap like that, making mince-meat out of him just for leaving it out, never mind what might have been said. For a “brilliant legal mind”–hell, for a sub-par legal mind–it’s a childish mistake.

As for their host, Mr. Carline, being an “energy executive”, why that’s just nonsense.

“He is not, as some reports have described him, an ‘energy industry executive…’”

No? Then what is he?

“He runs his own company that provides services and equipment rental to oil rigs in the Gulf of Mexico.”

Ah. I see. Not an “Energy Industry Executive” but an “energy industry executive.” It’s a distinction I hadn’t thought to make. See how Scalia’s mind works? If the guy isn’t CEO of Shell, he’s hardly even in the business.

3. Everybody does it, so strict recusal policies would cripple the Court.

I’ll let La Dowd take this one. Her talent for snark is perfectly suited to the arrogance of Scalia’s point.

Res ipsa loquitur, baby. Why should the justice who put Dick Cheney in the White House stop helping him now? It’s the logrolling, stupid!”Many justices have reached this court precisely because they were friends of the incumbent president or other senior officials,” the justice sniffs.

That elite old boy network can really help in those dicey moments when you need to stop the wrong sort, like Al Gore, from getting ahead.

You don’t stop ingratiating yourself with your powerful friends and accepting “social courtesies” from them just because you get on the court. Ingratitude is a terrible vice.

Anyway, what’s the point of being in the ultimate insiders’ club if you have to fly coach, eat at IHOP and follow silly rules on conflict of interest?

Yeah, really. The one thing that comes through most clearly in this memo is the sense that Tony just doesn’t get that whole “appearance of conflict of interest” thing. What’s the big deal? he seems to be asking all the way through. So we shot some ducks, so what? We’re buddies. Buddies do stuff like shoot ducks together.

Yeah, Tony, that’s the fucking point, you bonehead! Cheney’s a buddy of yours and you’re sitting in judgment of his reputation and behaviour. Don’t you see how a buddy-buddy trip on the Veep’s private plane to a private hunting ground as guests of an “energy industry exec” looks when the case you’re going to judge examines the same Veep’s cozy relationships with “energy industry execs”? Can you, brilliant legal mind that you are, really not see that? Some actually great legal mind (Holmes? Brandeis? I forget) said that for the SCOTUS to function credibly it must be above “even the appearance” of justifiable reproach. Tony just can’t fathom that. His typical-5-year-old muling, waspish, “But I didn’t do anything!” doesn’t just miss the point entirely, it assumes that we should know he didn’t do anything.

Justice Scalia says, “The people must have confidence in the integrity of the justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, in an atmosphere where the press will be eager to find foot-faults.” He observes that it would be nonsensical for him to recuse himself simply because the press has the effrontery to point out when someone has done something wrong.We, the press, are supposed to be the handmaidens and the manservants of our rulers. If we fulfilled our duties properly, our reports would go something like this:

In an admirable spirit of uncommon objectivity, in the pursuit of truth, justice and the American way, Associate Justice Scalia made time to poke around in the marshes of Louisiana with the equally scrupulous Dick Cheney, and then, refreshed by a well-deserved plane trip at our expense, he continued to transmit his enlightenment to a grateful nation.

Yup, that’s the tone of the memo, alright: “Who do you think you are, anyway? You peasants should be grateful a brilliant legal mind such as moi‘s would deign to serve at all, and yet you dare question my motives? my purity? my incandescent genius? Shame on you!” This is the guy who parks right in the middle of the fire lane at the mall because he’s special. This is the kid who thinks he should have your seat at lunch because his Dad drives a Beemer and your Dad drives a Chevy. Rules for the rest of us don’t apply to him because, well, because they don’t, and who are you to question the way things are or deny the privileges of the privileged? Nobody, that’s who. And just to prove it:

8. And anyway he ended up buying round-trip tickets to get back so the trip cost exactly what it would have cost if he hadn’t gone down with the Veep.

Wait a minute…? Round-trip tickets? For a one-way flight? Isn’t that…illegal? Well, yeah, sort of.

Justice Scalia did not say how much he paid for his round-trip ticket, but it seems fair to assume that he bought what is known as a “throw-away ticket” — something the airlines expressly prohibit. US Airways, for example, does not allow the “use of round-trip excursion fares for one-way travel,” and reserves the right to refuse to board those who try to use them and to charge them the difference between the round-trip and one-way fare.*******************

Of course, maybe Justice Scalia plans to use the return half of his ticket later. If he does not, however, he in essence has admitted to buying a ticket under false pretenses. He made a promise without any intention of fulfilling it. Justice Scalia is no doubt familiar with the legal term for such an act: it’s called promissory fraud.

The airlines’ policy may be annoying, inconvenient and customer-unfriendly. But they can legally insist that their passengers abide by it.

Unless that passenger is very very special.

And this is “our most brilliant legal mind”? Oy, are we ever sunk.

But sophistry and adolescent rationalizations aren’t the worst of it. The worst of it is that a chunk of the memo comes within legal millimeters of an admission that Scalia has already decided Cheney is innocent. I want to quote it directly so you can see for yourself just how close it is.

Richard Cheney ’s name appears in this suit only because he was the head of a Government committee that allegedly did not comply with the Federal Advisory Committee Act (FACA), 5 U.S.C. App.§2,p.1, and because he may, by reason of his office, have custody of some or all of the Government documents that the plaintiffs seek. If some other person were to become head of that committee or to obtain custody of those documents,the plaintiffs would name that person and Cheney would be dismissed. (emphasis added)

The Sierra Club suit claims that it was Cheney, personally, who made the decisions about who his Energy Committee would listen to, and Cheney, personally, who decided not to release the documents the Appeals Court told him to release. It isn’t, as Scalia notes, just about getting the release of those documents; it’s about Cheney’s refusal to comply with the law–FACA–when ordered to do so. In the graf above, Scalia is essentially committing himself to the view that anyone who was Head of that Committee would have done the same thing–which is precisely what the case is supposed to decide. The Sierra Club is saying Cheney broke the law by doing something no other official in his position would have done, and Scalia has already decided that they’re wrong. In a self-serving attempt to justify his own questionable actions, he has let slip a strong hint that his mind is already made up even as the case is months away from being heard. His own summary of the case as he understands it admits this:

I am asked to determine what powers the District Court possessed under FACA,and whether the Court of Appeals should have asserted mandamus or appellate jurisdiction over the District Court.

So for him the question is shaded heavily in Cheney’s direction. Instead of asking, “Is VP Cheney guilty of defying a lawful order of the Appeals Court?”, Scalia is asking, “Is the Court of Appeals guilty of writing an unlawful order?” The difference may seem minor, but in fact that shading suggests quite strongly that Scalia is, at a minimum, already in Cheney’s corner and at a maximum has made up his mind that Cheney may have been the victim of an “activist” Appeals Court. This is hardly the sort of neutral language one should expect of a judge, especially a Supreme Court Justice. Re-stating the case so it favors one side over the other isn’t exactly “objective”.

Of course, any judge is allowed to approach a case from whatever angle he wishes–after the case has been heard. But before? He has as much as told the Sirra Club’s lawyers that as far as he’s concerned, they’re wasting their time.

Scalia shouldn’t recuse himself. He should be removed from the case for prejudice.