Tag Archives: Supreme Court

Culture, Current Events, History, Politics

Number One

The Supreme Court has certainly received a lot of attention lately: hearings, pending decisions, leaked drafts and partisan splits.  We tend to focus a lot on partisan splits, but 9-0 unanimous decisions occur more often than 5-4 and 6-3.  And those are just announced decisions.  I suspect they are also quite common on procedural things, like which cases to hear.

Shertoff proposed flag

Last week the Court announced a 9-0 decision on an interesting case, Shertleff v Boston.  Quickly: Shertoff was a free speech case in which a citizen (Shertleff) was denied flying a Christian flag (red cross on blue patch with white background) on one of three masts at the Boston city hall.  The city had never denied such a one-day request before.  But the court considers such facts not so much as the law. [1]

Regarding the law, the court has always bent over backward to protect free speech.  And the right to have that free speech heard – or, in this case, seen.  It’s not the first time Boston and the area has been so severely spanked by SCOTUS on speech.

In 1993 the Irish Gay, Lesbian, Bisexual Group of Boston (GLIB) wanted to participate in the St Patrick’s Day parade.  They were denied (although not by the city, rather by an independent organization running the parade).  GLIB sued and Hurley v Irish-GLIB, Inc went to the highest court.  These things usually take a while to wend through the court system.  The court decided again, in 1995 and unanimously 9-0, that free speech gets pole position.  Gays et al must be allowed to march in public parades.

Another unusual 9-0 decision came in 2014 in McCullen v Coakley.  A Massachusetts law was passed in 2007 mandating an anti-protest “buffer zone” around entrances to abortion clinics – even if that buffer extended to public areas like sidewalks. Protestors sued. Free speech won unanimously, again.  The whole law was stricken.

In every case above the most progressively liberal and conservative justices united to rule in favor of the most liberal interpretations of free speech, even if it went against their personal social principles in the specific cases.

This even applies to burning the flag, see Johnson v Texas, decided in 1989.  Although narrowly decided at 5-4, it’s interesting that conservative-leaning Kennedy and most-conservative Scalia voted with the majority to permit flag burning.  [Kind off odd, as the specific flag burning incident was a protest against Ronald Reagan, done just outside the Republican convention of 1984 — and by 1989, when the case was finally decided, Reagan had recently appointed Justice Anthony Kennedy].

Not long after Johnson, above, the court heard a very similar case.  In response to Johnson Congress quickly passed the Flag Protection Act, which prohibited flag desecration and mistreatment.  They basically dared the courts to take up the issue again.

This got to SCOTUS quickly, dying a 5-4 death in 1990, in United States v. Eichman.  Again, with conservatives Scalia and Kennedy concurring: flag burning is speech.  Speech is protected.

Antonin Scalia, SCOTUS Judge 1986-2016

Years later Judge Antonin Scalia stood by his votes.  “If I were king, I would not allow people to go around burning the American flag.  However, we have a First Amendment, which says that the right of free speech shall not be abridged…”

Scalia’s reference to the First Amendment to the Constitution gives us a good chance to review this very important part of the US Constitution.

“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.”

One thing that’s interesting right from the start is that this Amendment, as written, is directed at “Congress” — not to the states, or to the state legislatures, or to city governments.  Yet the Supreme Court, and lower courts by precedence, have determined for a long time that these rights (religion, speech, press, assembly) are so very important that they apply to all branches of government.

These rights are indeed important.  Let’s consider Freedom of the Press.  This points to just one reason why I personally did not really react much to the great fear-stoking regarding the tenures of, let’s say, our last two presidents: Obama and Trump.  What’s that you say?  Because they were pummeled and attacked by the press, and cartoonists, daily.  None of those publications or voices were silenced, arrested, or “disappeared” by a government response.  We can extend this to the many anti-this and pro-that demonstrations that happened during each presidency.  Free press and free speech all.  [Presidential claims of “fake news” and a bible walk to St John’s notwithstanding].

Freedom of the press is so important it should cause us to consider how contemporary events would have played out if such a valuable and cherished freedom truly existed in, say, China and Russia.

Would there be an atrocity-filled war in Ukraine right now if Russia had such a court-protected freedom?  How might the Covid pandemic have played out if China had freedom of the press?  Reporters Without Borders (RSF) rates China 175th and Russia 155th (out of 180) in the world in Press Freedom.

By way of comparison, the US gets an overall top-grade score of “Good”, and “Satisfactory”, but still comes in at only 42nd, per RSF.  Saying the “US is better than most” is not anything like saying “Russia and China are better than North Korea” (dead last). They are so very low because of authoritarian government interference and censoring. Although we (the US and much of Western Europe) can do better, we are in pretty good standing regarding press freedom.

In absolute freedom of speech, the US does rank #1 in the world (World Economic Forum rankings). [2]

“I disapprove of what you have to say, but I defend your right to say it” has long been a maxim of US law and principals. [3] Recent Rasmussen polls regularly show over 80% of Americans believe free speech is more important than offending someone, and prefer it to giving government control of speech content. [Caveat, among younger Americans this number is dwindling.]

In reviewing the RSF’s Free Press evaluation criteria the US seems to lose ground for a variety of non-government reasons:  there are far fewer jobs for investigative journalism than there used to be; many writers self-censor; much media fails to fairly present alternative views. [4] It’s all related and these conditions continue to morph.  All-in-all, these topics are very large kebabs to skewer. As is Free Speech, in the context of, say, Twitter and Elon Musk. I’ll leave those for others to tackle.

Here’s to #1.  The First Amendment, that is.

Peace,

Joe Girard © 2022

Thanks for reading. As always, you can add yourself to the notification list for newly published material by clicking here . Or emailing joe@girardmeister.com

Footnotes below.  Acknowledgements to recent articles by Jeff Jacoby (Boston Globe) and The Economist for stimulating the thoughts that led to this essay.

[1] More on recent Shetleff Case: https://www.scotusblog.com/2022/05/boston-violated-first-amendment-when-it-rejected-christian-flag-court-unanimously-rules/

[2] This is supported by a 2015 Pew Research poll, here.  By 2021, the US has dropped into a virtual tie with Norway and Denmark for #1 [link], which apparently has more to do with Americans’ perception of free speech than actual government or private censoring.

[3] This quote is often attributed to Voltaire, 18th century French philosopher and strong proponent of civil liberties.  It’s actually probably best attributed Evelyn Beatrice Hall, an early 20th century biographer of Voltaire, trying to capture Voltaire’s philosophy.

[4] Figure and scoring, ref: Reporters without Borders site:
Reporters Without Borders site

Reporters without Borders 2021 World Map, hard to believe Russia is red, not black.  But this was before Ukraine.

White (score 0-15) relates to a Good Situation.
Yellow (score 15-25) reflects a Satisfactory Situation.
Orange (score 25-35) represents a Problematic Situation.
Red (score 35-55) represents a Difficult Situation
Black (score 55-100) represents a Very Serious Situation

 

 

Current Events, History, Politics

Supreme Thoughts

Supreme: 1) Highest in rank or authority; 2) Highest in degree or quality; 3) ultimate or final
–  Merriam-Webster

I recently read a fun and interesting article by Jonah Goldberg.  (Yes, I know – that Jonah Goldberg – please don’t roll your eyes and give up on me). At once randy and riveting – sending insults in many directions –  he does cite and make some interesting points.

After starting out on the topic of the weird magic of orbs, he quotes an Annandale Public Policy survey that determined 75% of American adults cannot identify all three branches of government. (Yes, I know – shocking).  And more than one-third of Americans cannot name a single right conferred by The Bill of Rights.  (As my wife and I say at this point: “And they vote.”)

Trump touches “The Orb” in Riyyad, Saudi Arabia, with Saudi King Salman and Egyptian President al-Sissi.

It’s a good enough starting point for me, but I’ll go off into theory and conspiracy-land instead of slinging poison-dart words.

The US Constitution’s first three Articles deal with the three branches of government.  Article I – The Congress; Article II – The Executive Branch; Article III – The Judicial.

Digging into Article III, it is interesting to note that the Constitution does not – I repeat: the Constitution does NOT – set the number of Supreme Court Justices.

Seal of the Supreme Court of the United States

In fact, the number we have come to know and grow accustomed to – specifically, nine – has not always been the total number. The number is set by acts of Congress. And can be modified by acts of Congress.

When the Supremes first sat, in 1790, the odd number was six. [1].  Why is six odd? It is not, generally speaking, a good idea to have an even number of people deciding things.  Ties can result, and in the Supreme Court, ties lead to no action at all.  Whatever was law before is law after.

In 1807 they judiciously raised the number to seven.  In 1837 it was raised to our familiar nine (perhaps some sort of north-south compromise … I’ll have to look into it).  Oddly, in 1863 it was raised to an even ten.  [At this time the South had virtually no representation in Congress, they bolted to their own government, and it was pretty clear that the North would probably win the war. Not sure if that’s why a seat was added.]

Finally, in a fuss over President Andrew Johnson (Lincoln’s successor … remember, he was impeached and avoided getting removed from office by a single vote), the number was reduced back to seven.  This precluded Johnson, a Tennessee southerner, from appointing any judges.

Then in 1869, with Johnson out and Grant in office, the number was raised back to nine – I suppose to re-enforce the government position on Reconstruction. Or to spite Johnson.

And there, at a total of nine, is where the number of justices has remained for nearly 150 years.

The Supreme Court has had its own building, shown here, since 1935.

Upshot #1 is that Roosevelt’s plan to “pack the court” was not the least bit unconstitutional; although it did represent the sort of power grab that was a hallmark of the his presidency.  Roosevelt believed in “go big, or go home”; he attempted to jack up the number to fifteen, thus giving himself a slam dunk on any issue before the court. Probably no other president did more to establish the tradition of a very powerful executive branch.  [After Obama, and, especially, now Trump, it looks like people in both parties have recognized this danger].

Upshot #2 is a wild long-shot prediction – or perhaps observation of the possibility – that something supremely weird could happen, most likely in 2021: Expansion of the court to 11 members, or more.

My thought process. The backlash against the Republicans for painting themselves into a corner: first with Trump, and then with Moore. These will yoke their general popularity numbers in the ditch for years – and will almost surely result in Congressional seat losses in 2018.  Even popular presidents lose seats in off-year elections (see Obama in 2010).

Unless the Reps can bump Trump and field a Knight (or Dame [2]) in shining armor for 2020 – or the Dems run another truly “horrible” candidate, as in 2016 – there is a good chance the Dems will hold the Whitehouse and both branches of congress come 2021.

Here’s where current events come into play.

  • The Senate has gone “nuclear”. That means the good old days of needing 60% and plenty of compromise to get anything passed (used to be two-thirds) are basically gone.  No one plays nice anymore.  Could blame Harry Reid, but there’s not enough mud or ink for all the villains.  Now it takes only 50-50 (if you have the Whitehouse … the VP casts tie-breaking votes in the Senate).

[The lower house of Representatives has always been designed to go fast: only a simple majority has ever been required … except to commence the Amendment process]

  • Some Supremes are destined to retire, or pass away, soon. So, look for good odds that Trump will get to appoint at least one more judge, securing the Right’s slight advantage (currently approx. 5-4, even noting that Kennedy and – in a few cases – Roberts have swung left a few times).
  • Anthony Kennedy is 82. Although the left sees him as a hateful ideological enemy, he sides with them frequently and is always the “swing” vote in closely decided 5-4 cases.  He probably isn’t sure about Trump (who is?), and, as a relative moderate among right and left sharks, might be hanging on to see what happens in 2020.
  • Even older is Ruth Bader Ginsberg. She is 85 years old and looks 105; her energy is visibly dwindling to all court observers.  A true Progressive/Leftist believer, she is surely hanging on, hoping that Dems win the Whitehouse in 2020.  But she could pass any day, and no one would be surprised.
  • Steven Breyer, at 79-1/2 could keel over too.

If Trump gets to appoint even one more judge, look for the Left and Dems to get super energized. Even more than the hornet’s nest we are observing now. Why? This could “lock in” a perceived rightward slant for at least another decade (even though this court did uphold “Obamacare”, AKA The Affordable Care Act, and Same Sex Marriage rights).

They will seek to overturn any perceived disadvantage by adding at least two seats to the court.

That’s my Far-Out-From-the Center-Field-Peanut-Gallery prediction for now.  Call me out on it in a few years if the Dems take the elections in 2018 and 2020.

Well, the future beckons.  Let’s be careful servants out there!

Cheers and best wishes for 2018.

Joe Girard © 2018

 

[1] Actually the number was five, although Congress set the number at six.  The sixth justice was not confirmed by the Senate until a few months later.

[2] The equivalent of Knight for females is Dame. When she receives her title, she is said to be “daymed”, not “knighted.”  Link