Divided high court makes Kennedy pivotal

Fractured. Splintered. Fragmented. Divided. Fissured.
Those words describe the Supreme Court in the 2005-2006 term just ended. More important, the term also confirmed the worst fears of those who opposed the appointments of John Roberts and Samuel Alito: the court grew even more reactionary.
Justice Alito voted with the archconservative Justice Thomas 84 percent of the time in non-unanimous decisions. Chief Justice Roberts sided with another arch-conservative, Justice Scalia, an amazing 88 percent of the time.
Instead of naming a court after the chief justice as is the custom, it is now the Kennedy Court. Conservative Justice Kennedy has become the swing vote. Because of him, the center sometimes held--precariously. But when Kennedy swings Right, as he often does, the Supreme Court rulings make the law of the land backward.
In its wisest and best decision this term, the court struck down military tribunals. But not much good can be said about the bulk of the rulings.
One of the worst decisions was to invalidate a Vermont statute limiting campaign contributions and spending by candidates. The ruling reaffirmed that money is speech, speech that corrupts the political process. It is nothing less than legalized bribery. It reinforces the fact that America is not the democracy it boasts about. It is a plutocracy.
As Howard Zinn, powerful critic of America past and present, puts it:
“No one can stop us from getting up on a soapbox and speaking our mind. We might reach a hundred people that way. But if we were the Proctor and Gamble Co., which made the soapbox, we could buy prime time for commercials on television, buy full page ads in newspapers and reach several million people.
“Freedom of speech is not simply a yes or no question. It is also a ‘how much’ question. And how much freedom we have depends on how much money we have.”
Another blow to this so-called democracy: the court allowed to stand a mid-decade gerrymander by Texas Republicans. The decision was highly partisan, once again proving that the nonelected justices are mere politicans pretending to be impartial jurists.
Texas had already reapportioned seats after the 2000 census but former majority leader Tom DeLay wanted Republican control of the U.S. House so he pushed through another reapportionment. The court’s rationale, partisan legerdemain so transparent that even a magician would be ashamed to use it, tore up the due process clause of the Constitution.
The reapportionment illegally reduced black and Latino voting strength. But no matter. Political appointees at the Justice Department overruled six lawyers and two analyists who called the plan invalid.
Another horrible decision decided by the Reactionary Five restricted free speech rights of 21 million public employees, declaring that the First Amendment does not protect them from complaints to their bosses about wrongdoing.
It was vicious slap at government whistle-blowers--truth-tellers--who expose corruption and fraud. Justice Souter, dissenting, said the “public interest in addressing wrongdoing and threats to health and safety” is paramount. And Justice Stevens noted in dissent the perversity of protecting whistle-blowers who go public while punishing in-house speech.
On wetlands, the fragmented court was unable to decide on the scope of the Clean Water Act. But Justice Stevens rightly pointed out that the retrograde bloc—Roberts, Scalia, Thomas and Alito—was “antagonistic to environmentalism” and “needlessly jeopardized the quality of our water.” Stevens also noted that the bloc was making law rather than interpreting it, a dig at conservatives who accuse liberal judges of judical activism.
All decisions, however, were not bad. The Supreme Court ruled that the Justice Department does not have the authority to block Oregon’s physician-assisted suicide and that federal narcotics law cannot stop a religious sect from importing a hallucinogenic tea central to its worship.
Roberts, in a unanimous opinion for the court, noted that for the past 35 years the government has permitted Native Americans to use peyote in religious rituals even though it is banned for general use.
Nevertheless, a look at Roberts’ first term reveals mostly dread news. He dissented in the death-with-dignity case. He dissented in the wetlands case, siding with developers. He voted with those who approved the money-is-speech decision. He voted with those who upheld shameful gerrymandering. He voted to deny whistle-blowing rights, declaring that he could find no First Amendment injury even when a whistle-blower was demoted for speaking out.
Reaction is firmly in the saddle. The great fear about future high court rulings: the liberating abortion decision of Roe v. Wade in 1973 will be overturned.

King Bush rebuked by Supreme Court

“I, my Lords, embody the Law.”
--“Iolanthe” by W.S. Gilbert

The Supreme Court has grown even more reactionary with the replacement of Sandra Day O’Connor by Samuel Alito. But even such a retrograde court refuses to let President Bush make the law.
The court recently struck down military commissions established by Bush to try prisoners at Guantánamo. It ruled that the tribunals were unauthorized by Congress and violated international law.
“The executive is bound to comply with the rule of law,” Justice Stevens wrote in a 5-3 plurality decision. He said military tribunals do not afford “all the judicial guarantees that are recognized as indispensable for civilized peoples.” These guarantees include prohibition of coerced testimony, torture, beatings, sexual assault and religious humiliation.
Stevens quoted James Madison, father of the Constitution, approvingly: “The accumulation of all powers, legislative, executive and judiciary, in the same hands…may justly be pronounced the very definition of tyranny.”
At Guantánamo you have such travesties of justice as: no legal counsel; testimony without oath; hearsay evidence; defendants excluded from hearings; and unsworn testimony. Above all, prisoners are held indefinitely, without charges and without trial.
Star Chamber proceedings in the 21st century.
Precedent for the tribunal ruling comes from some of the wisest opinions ever written by Supreme Court justices. Namely:
• Chief Justice John Marshall, presiding at the treason trial of Aaron Burr in 1807, ruled that the president, unlike the king of England, is not above the law.
• Justice Frank Murphy, dissenting in In Re Yamashita (1946): “We live under the Constitution, which is the embodiment of all the high hopes and aspirations of the new world. And it is applicable in war and peace.”
• Justice Robert Jackson, concurring in a court decision to block an attempt by President Truman to seize the steel mills in 1952, said the president acted unconstitutionally because Congress had refused to authorize the seizure. The court ruled 6-3 against Truman.
• Chief Justice Warren Burger, writing for a unanimous court in the Nixon tapes case (1974), cited the nation’s “historic commitment to a rule of law.” He quoted Marshall in Marbury v. Madison (1803): “ ‘it is emphatically the province and duty of the judicial department to say what the law is.’ ”
The historic Hamdan tribunal decision was a sharp rebuke to Bush, a denunciation of a kangaroo court and usurpation of power.
The Bush administration is riddled with other above-the-law practices: illegal wiretapping of Americans by the National Security Agency; kidnappings to send captives to abroad for torture; and bill-signing statements to interpret the law as Bush defines it.
The administration goes its own nefarious way, the public and Congress be damned. A year ago the Senate voted, 90-9, to ban “cruel, inhumane and degrading treatment of prisoners.” (Vice President Cheney objected strenuously. Presumably he favors summary execution.) But the Senate vote had no effect on an administration run amok.
In dissent, the rebarbative Justice Thomas said the Hamdan ruling “flouts our well-established duty to respect the executive judgment in matters of military operation and foreign affairs.”
Thomas woefully misplaces his trust. Bush is unworthy of trust. Justices have no duty to obey a lying president. It is not traitorous to disagree with a president acting like a king.
Another rebarative justice is Scalia. In dissent, he dismissed as crazy the notion that military detainees are entitled to a “full jury trial.” He scoffs at the idea that the Geneva Conventions apply to those held at Guantánimo. He despises thinking by foreign jurists even though America is increasingly out of step with international law.
Scalia uttered prejudicial comments before the Hamdan case was argued but refused to recuse himself. He is an “original intent” interpretator of the Constitution who has no truck with the dictum of Justice Holmes that the law must respond to the “felt necessities” of the day. (Oh, and Scalia says U.S. institutions come from God.)
The dissenters are rubber-stamping anything Bush does even if it is autocratic, monarchial, plenary and unitary.
Every high school student learns about the checks and balances in the U.S. political process. How the Congress passes bills, the president vetoes bills, how vetoes can be overridden and the Supreme Court determines constitutionality.
But Bush has made it clear that checks and balance are for textbooks. The law is what he says it is.

Vain search for radicals on UNR campus

Three myths will never die in America. One: the exceptionalism of the United States. Two: the media are liberal. Three: universities are overrun by leftists.
I made a pitch recently to the journalism faculty at the University of Nevada, Reno, to join the Nevada Faculty Alliance, the campus advocacy group. (Teachers, like newspaper folks, eschew the word union. Union, like liberal, is a dirty word.)
I noted that the NFA defends academic freedom, fights for higher faculty salaries and benefits, lobbies the Regents, the Legislature and the governor on behalf of the faculty, and helps with faculty appeals of evaluations and amounts of merit pay.
My plea was met by vast indifference. What, professors, who work with their minds, be contaminated by unionism? One faculty member said loftily that the NFA was not on her agenda.
NFA has about 130 members out of about 1,300 professors and staffers on the UNR campus. So much for faculty liberalism--let alone radicalism.
Then there was a seminar on campus this spring discussing the worldwide Muslim furor over the Danish cartoons that satirized Muhammad. The program, under the auspices of the UNR journalism school and the National Judicial College, featured four panelists who interacted with an audience of about 30. The title of the seminar: “Caricatures and Censorship: a Free and Responsible Press?”
Incredibly, the seminar was, in effect, censored. Not one of the cartoons that inflamed the Muslim world was shown. I can understand why the cartoons might not be shown by Establishment newspapers. They were inflammatory, offensive to Muslims.
(The Philadelphia Inquirer did run them, the only major newspaper in America with the courage and wisdom to show its readers what the Muslim demonstrations and trashing of embassies were all about.)
Journalism professor Ed Lenert, lawyer and PhD as his emails always remind recipients, moderated the panel and exchanges with the audience. He explained in an email why the Danish cartoons were not shown:
“First, the purpose of the discussion was to go ‘beyond the Danish cartoons.’ There’s been a lot of coverage about the specific cartoons themselves and I didn’t want to go over that ground again. Second, I discussed it with the presenters (panelists) and it was felt that we should focus on U.S. cartoons in the context of a free and responsible press.”
But the Danish cartoons were the impetus for the session. Why bother having a seminar if you don’t show them? Academics are so cautious, nay, even gutless. Rocking the boat is not the academic way.
Dr. Lenert, who holds the august chair of Critical Thinking and Ethical Practice, showed about eight American cartoons. Everyone one of them should have run. Yet the audience and panelists engaged in deep soul-searching and philosophical agonizing. An amazing number of the cartoons were rejected by a hefty majority of the audience. Even some panelists turned thumbs down on a few cartoons.
Finally, after an hour and one-half of this brow-furrowing, I angrily cried out over the audience microphone: “What this panel needs and this audience needs is a Justice Black or a Justice Douglas.”
Dr. Lenert ignored the comment, repeating some silly remark about “black and white.” But the session demanded the viewpoint of First Amendment absolutists like Black and Douglas.
Paul Conrad, wonderful editorial cartoonist for the Los Angeles Times, put it well: “A cartoonist should get out of bed mad and stay mad.” That anger is reflected in a comment by Douglas: the very purpose of the First Amendment “is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest…or even stirs people to anger.”
Editorial cartoonists, unlike newspaper reporters, make no effort to be fair. Good cartoonists are negative critics, sometimes even destructive.
Thomas Nast, 19th century giant of editorial cartooning, drew mordant and trenchant cartoons. One showed erditor Horace Greeley shaking hands with John Wilkes Booth over the grave of Lincoln. Grossly unfair, hyperbolic. But that’s how Nast felt about Greeley.
Cartoonists do not possess what the learned Professor Lenert calls a “moral compass.” Nor should they. They are artists, not careful, “balanced” members of the professoriat.
Political cartoonists have no duty to be “responsible.” They have no duty to be “respecters” of people’s feelings. Nor should they ever be squelched in their vision no matter how vicious.
One guy in the seminar audience was bright, philosophical and profound. He said he would not have printed most of the cartoons. Like academics, he would make a lousy editor.

Implacable Chomsky rips U.S. past, present

FAILED STATES
By Noam Chomsky.
263 pages. Metropolitan Books/Henry Holt. $24

This is indispensible Chomsky.
He is relentless in assaulting imperialistic and hypocritical United States policies past and present. He presents an ugly picture of the nation’s grievous history and parlous state today. The United States is so often so wrong--and has been as least since 1818 when General Jackson seized Florida after the Indian wars.
This is quite contrary to the view of Americans infatuated with the thought that America is the greatest nation that ever existed, that its exceptionalism is without historic parallel.
No wonder Chomsky is persona non grata in most of the Establishment media.
The Chomsky book makes clear the tragedy of the demise of the Soviet Union: no one can now challenge the world’s only superpower. America can do what it wants with impunity because there is no countervailing force to restrain its rampages through the world.
The daily outrages of the Bush administration are told in all their sordidness: imperialism, unilateralism, torture and rendition, disdain for world opinion and a go-it-alone policy that rejects rulings by international bodies.
Secretary of State Rice says that the U.S. has the right “to attack a country that it thinks could attack first,” that the international court is inappropriate for America and that America is not subject to international laws. President Bush declares the U.N. is irrelevant, a mere debating society, if doesn’t endorse its plans to invade and occupy Iraq.
But, you see, manifest destiny and manifest design are all part of “the will of God.” Thus, grab from Mexico enormous acreage. Invade Latin American countries that dare to put their people ahead of holy American capitalism. Bomb Cambodia even if it is what Chomsky calls a monstrous war crime, bordering on genocide.
America’s leaders keep talking about the wonders of democracy. Yet it has engineered the overthrow of elected governments in Iran, Guatemala and Chile. America tried to get rid of populist President Hugo Chavez in Venezuela. It wants to get rid of the freely elected Hamas in Palestine.
The truth is that the U.S. backs democracy only if it is consistent with its strategic and economic interests. Elections are just fine--but only if they turn out America’s way.
Far from being a haven of democracy, America is often undemocratic. Its leaders burst with glowing rhetoric but few good deeds. It not only acts against the world’s best interests, it acts against the best interests of the bulk of American people.
Nothing illustrates better the bogus claim of supporting democracy than the U.S. expulsion from Iraq of Al-Jazeera, the Arabic TV channel often critical of Israel.
America has backed countless dictators from Batista in Cuba and Somoza in Nicaragua, including Saddam Hussein who once was America’s pal when his troops were fighting Iran. The U.S. policy of ostracisim and sanctions against Cuba, tiny in size and tinier in military might, is one of the country’s many disgraces.
“We do not care about atrocities that contribute to our ends,” Chomsky writes. Illustration: backing Indonesia even when it slaughtered 60,000 East Timorians. Cuba? Hey, if Castro defies U.S. will, impose sanctions, engage in economic warfare, strangle the communist beast. Keep the “virus” of communism from spreading in Nicaragua, Vietnam and Cuba even though all three nations undertook social and national revolutions without thought of communism.
Chomsky makes it clear that the U.S. is an outlaw state, a rogue nation, defying international law, ignoring Geneva conventions, flouting the World Court and exempting itself from rules obeyed by other nations.
The United States always has a pretext for its countless invasions. Seize Cuba from Spain to liberate it. Take over the Philippines to educate its people, “uplift and civilize and Christianinze them.” Invade Panama to arrest Noriega, long-time CIA asset, under the pretense of fighting the drug war. And if one pretext is exposed as a lie, then come up with many others as President Bush has done constantly about Iraq.
And fear-mongering. President Reagan placed “the ferocious Nicaragua army only two days from Harlingen, Texas.” Bush wins election after election by playing the 9/11 card.
Chomsky’s book is scrupulously footnoted. His scholarship is impeccable. Although most of the truths are well-known by leftists, having been published frequently by progressive magazines, too few Americans know those truths.
A New York Times reviewer calls the Chomsky book a philippic. (Translation of Establishment speak: tirade, rant.) Nevertheless, the reviewer concludes: “It’s hard to imagine any American reading this book and not seeing his country in a new and deeply troubling light.”