Intro to the Supreme Court: I have little insight in to the current Supreme Court, after Rehnquist’s passing and O’Connor’s resignation things may change. Sometimes individuals get on the court and find they don’t HAVE to be loyal to the powers that put them there. This is what the court was looking like before these two events. The Bloc:Rehnquist led the bloc. He had two pets. One was named Antonin Scalia who was his Rottweiler. Ant would be overzealous in his assault for his owner Rehnquist in all the opinions. His other pet was named Clarence Thomas. Clarence was a lapdog he made sure that he was close to his owner Rehnquist at all times. So the chief justice had two rubber stamps that could be counted on come hell or high water. Kennedy often rolls thick with “The Bloc”.
The Swingers: O’Connor and Souter. These two will find themselves going between “The Bloc” and dissent. Ginsberg is often a swinger.
The Dissent:Breyer, Stevens, and Ginsberg. These individuals could be counted on most of the time when it came to protecting our constitutional rights. Even if it meant making sure the states do not violate them. These individuals were not as closely knit as “The Bloc” and could come down on different sides of an issue.
So this is how the Supreme Court made decisions….Rehnquist would decide and if the dissent couldn’t put together a coalition then…..............Rehnquist made the Supreme Court’s decision.
How does the judiciary work: The Supreme Court is like old Europe’s Kings. Their word is law. They do not speak it though; they write it in tightly woven opinions that use language and logic to create a justification for their decision. The justification must be according to binding precedent (stare decisis). So cases in the past with similar facts from courts in their jurisdiction must be abided by. The idea is to have the court move slowly and only have the power of making their word law in short controlled bursts. Just like all power it corrupts and just like all institutions it will become co-opted by the powerful. The check on what is referred to as “judicial tyranny” is the fact that decisions cannot be radical departures from precedent and that the “divine word” only comes in the short controlled bursts. The final check on this tyranny is that the court has no solvency mechanism/executive. They have no agent to carry out their will; instead they rely on the legislature and executive to abide by their decisions. The Supreme Court only makes decisions on constitutionality through its power of judicial review. Constitutional questions are the only jurisdiction of the Supreme Court. The constitution is “the highest law of the land”.
A short history for context: We are in the late stages of a movement which brought tremendous progress, but failed to create a lasting victory. Our era is still the “civil rights era”. The important pieces of this “highest laws of the lands” in recent times have become the “equal protection clause”, “the supremacy clause”, and the “interstate commerce clause”.The supremacy clause states that the constitution is the highest law of the land and the Supreme Court the highest court of the land. It states that federal law supersedes state law and federal courts are supreme above state courts. The “interstate commerce clause” makes it illegal for the federal government to interfere with state sovereignty unless it involves issues of interstate commerce. The framer’s intent with this was to avoid protectionist disputes by having the federal government act as mediator in issues of interstate commerce. This is the only explicit jurisdiction of the federal government as provided by the constitution regarding the issue of state sovereignty. The equal protection clause is contained in the 14th amendment to the constitution. It states that everyone should get equal protection under the law. This is the clause that allowed the 1964 civil rights act to be legislated by the federal government. It was decided that in situations where the state is not protecting the constitutional rights of the citizens the federal government can step in. During the lead up to desegregation and the 64 civil rights act the defense of tyranny lay with the “interstate commerce clause”. It was argued that if Alabama wants to segregate its’ schools and keep Jim Crow alive then that is not the jurisdiction of the federal government. Now because courts are highly politicized institutions (although many believe they are objective and noble) the court provided justification for this denial of individual’s constitutional rights. Now there is a large amount of precedent for devolution in this ongoing “federalism” debate.
If you have seen the movie ‘the rock’ you know that Sean Connery quotes Oscar Wilde: “Patriotism is the last refuge of scoundrels”. Well in this situation “federalism is the last refuge of scoundrels”. Prejudiced individuals defended “de jure” inequality under the argument that the federal government can only intervene under the “interstate commerce clause”. When individuals like grover norquist claim that they are defending federalism the truth is they are activists working for devolution. They are the individuals who would have rejected the constitution and kept the articles of confederation. These individuals call their agenda of “devolution” federalism. There are some who will call my claim radical, but the proof is in the puddin’. The court only upholds federalism when it suits the agenda of it’s’ masters.
Bush v. Gore: 1.The Opinon “On December 8, 2000, the Supreme Court of Florida ordered that the Circuit Court of Leon County tabulate by hand 9,000 ballots in Miami-Dade County…. The court further held that relief would require manual recounts in all Florida counties where so-called “undervotes” had not been subject to manual tabulation. The court ordered all manual recounts to begin at once. Governor Bush and Richard Cheney, Republican Candidates for the Presidency and Vice Presidency, filed an emergency application for a stay of this mandate. On December 9, we granted the application, treated the application as a petition for a writ of certiorari, and granted certiorari.”-The court stopped the ballot counting
“The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.Given the Court’s assessment that the recount process underway was probably being conducted in an unconstitutional manner, the Court stayed the order directing the recount so it could hear this case and render an expedited decision. The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections.”-This is arguing that the ballot counting was not uniform so therefore the equal protection clause is not satisfied.
“The Supreme Court of Florida has said that the legislature intended the State’s electors to “participat[e] fully in the federal electoral process,” as provided in 3 U.S.C. § 5. _ So. 2d, at _ (slip op. at 27); see also Palm Beach Canvassing Bd. v. Harris, 2000 WL 1725434, *13 (Fla. 2000). That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is upon us, and there is no recount procedure in place under the State Supreme Court’s order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.”The Majority opinion chooses the president not out right, but de facto. With very little time left they remand the case to Florida and ask for “constitutional review” to make sure the recount abides by the equal protection clause. This is basically saying that the Supreme Court wants it out of their hands and needs to let the state handle it to have legitimacy.
2.The dissent that doesn’t try to hide its’ logic from the light of day by coating it in innocuous rhetoric m Souter “To recount these manually would be a tall order, but before this Court stayed the effort to do that the courts of Florida were ready to do their best to get that job done. There is no justification for denying the State the opportunity to try to count all disputed ballots now.”
3.The dissent that scolds the Supreme Court, Breyer “The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.”
This case was decided because the Supreme Court didn’t feel it had the jurisdiction to create a “federal chad standard”. The Supreme Court did not decide who would be president “de jure”, but by not using its power of review to create a just and fair election the Supreme Court “de facto” decided who would be president. This is also important because it contributes to the mainstream understanding of the election. In many individuals’ minds this case actually LEANT LEGITIMACY to Bush’s election because they did not fully grasp the decision and facts of the case. The final decision rests on the fact that no constitutional (equal protection clause) means are available for counting ballots so there is no way to conduct a constitutional counting of votes. Thusly…..there won’t be a counting of votes. There it is “Federalism”, exploited to support their agenda.
What we should understand is this is the tip of the iceberg. If Alito gets confirmed, then he and Roberts stay loyal to their masters then we will see “The Bloc” become 5 votes, a majority. Coupled with the recent trend of expanding executive power creates a dangerous recipe. We may have an executive out of control who will obtain rubber stamps from a fully co-opted supreme court to justify police state actions (Patriot act, NSAgate, suspension of Habeas Corpus, etc).
So I didn’t prove that the court’s recent incarnation exploits “federalism” when it serves its’ masters ends. I did prove that they use “federalism” to justify things like “Bush v. Gore”. Well it’s too god damn easy to prove it’s exploited: UNITED STATES v. OAKLAND CANNABIS BUYERS’ COOPERATIVE
I guess there is another implicit clause in the constitution: The “States Don’t Have Sovereignty If It’s About Drugs” clause. There was also a case this year that the Supreme Court decided another medicinal marijuana case on the States Don’t Have Sovereignty If It’s About Drugs” clause. When assholes claim they are defending the framer’s intent of “the commerce clause” most of the time its another way of saying: I use “federalism” as a cover story for my agenda of devolution, I use federalism to justify any action that suits my masters’ agenda, or they are just straight racist and wish things were still “separate but equal”.