A month ago, ThinkProgress published an essay by Ian Millhiser with the title “Clarence Thomas Is the Most Important Legal Thinker in America.” I did a double take. How could the estimable Mr. Millhiser sign his name to such an exaggerated claim? But his argument was not that Justice Thomas, who recently turned 70, is winning victories today, but that he is paving the way for victories down the road — and perhaps not all that far down the road. Observing that 20 percent of Trump-appointed appeals court judges are Justice Thomas’s former law clerks, Mr. Millhiser wrote, “Thomas lost the war for the present, but he is the future of legal conservatism.”So no, the court’s future is not already here, not yet. Those of us on the progressive side of the street are unlikely to look back on Justice Kennedy’s final term with nostalgia. But soon enough, we may decide that it was the best we’re going to see for a long time.Follow The New York Times Opinion section on Facebook and Twitter (@NYTopinion), and sign up for the Opinion Today newsletter.Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The Times from 1978 to 2008, and is the author of several books.
“Here’s a possible solution to the most commented-upon mystery growing out of the Supreme Court’s argument this week in a case of crucial importance to the future of public employee unions: Why did the normally loquacious Justice Neil M. Gorsuch stay silent? Could the junior justice have caught something from Justice Clarence Thomas, who famously went a decade without asking a single question? Was Justice Gorsuch overcome by the knowledge that with his eight colleagues tied four to four — as revealed by the vote two terms ago in a nearly identical case that was argued but not yet decided by the time of Justice Antonin Scalia’s death — he holds the fate of organized labor in his hands?
No, nothing as tantalizing as that. I think the answer is probably a good deal more pedestrian. The lawyer representing the labor union, David C. Frederick, is Justice Gorsuch’s former law partner. When President Trump nominated Judge Gorsuch to the Supreme Court a year ago, Mr. Frederick published an opinion essay in The Washington Post under the headline: “There Is No Principled Reason to Vote Against Gorsuch.” Identifying himself as “a longtime supporter of Democratic candidates and progressive causes,” Mr. Frederick called Judge Gorsuch “a longtime friend” and described him as “brilliant, diligent, open-minded and thoughtful.” So why would Justice Gorsuch beat up on his old friend when Justices Samuel A. Alito Jr. and Anthony M. Kennedy were doing an enthusiastic job of it?”
“The challengers, supported by the Trump administration, maintain that this longstanding distinction between chargeable and nonchargeable expenses is unsupportable because everything a public employee union does is inherently political. Thus, they argue, it violates the First Amendment for the objectors to have to support the union in any way, and therefore the precedent, Abood v. Detroit Board of Education, must be overruled.
In support of this argument, Justices Alito and Kennedy were obsessively focused on unions as political actors that could, in Justice Alito’s words, “push a city to the brink and perhaps over the brink into bankruptcy.” Their goal was to show that public employee unions are political to their very core.
“Do you think that this case affects the political influence of the unions?” Justice Kennedy asked Mr. Frederick. When the lawyer began his answer with a No, Justice Kennedy went on, with evident sarcasm:
“So you’ve — I can try to find a union newsletter which says don’t worry about the Supreme Court, our political influence will be exactly the same as it was before, if this case comes out against us?”
“That’s not a chargeable expense, Justice Kennedy,” Mr. Frederick began. “We’re talking about —” “
Unions and Collective Bargaining power. This is a difficult subject. In Hamden and the State of CT, we have a too much power in the public employee unions, or, for complex reasons, they negotiated for overly generous, and unsustainable pension and work benefits, that now endanger the economies of the state and local governments. Meanwhile, we have workers at places like Walmart, Subway, and home nursing aides, who are so poorly paid, that they remain in poverty after working full time. How will this extreme haircut affect these two problems? On the one hand, we have unionized public service labor that is overpowerful, and needs a haircut, and poorly paid service workers in the private sector, who desperately need more collective bargaining power, and better wages and benefits. The benefit of this right wing hair cut it that it might bring some support to Hamden and Connecticut against the unsustainable benefits agreed to in the last 40 years or so. Will this haircut throw out many babies with the bathwater? Or will it curb the the excesses of big labor, while allowing for a new growth in unionization in the private sector where collective bargaining is so desperately needed. The answer probably lies in the practices of counties like Germany, and the Scandinavian countries, where the social net is stronger, which allows for more risk taking. David Lindsay Jr. is the author of “The Tay Son Rebellion,” and blogs at TheTaySonRebellion.com and InconvenientNews.wordpress.com
“Even though Doug Jones won a famous statewide victory in last month’s Alabama Senate race, he actually lost — less famously — to Roy Moore in six of the state’s seven congressional districts. That’s right: He carried only the heavily black Seventh Congressional District, into which the Alabama Legislature has jammed almost a third of the state’s African-American population while making sure that the rest of the districts remain safely white and Republican.
That’s gerrymandering in the raw. Something equally raw, although less overtly racial, happened in Maryland back in 2011, when the overwhelmingly Democratic State Legislature decided that one Republican out of Maryland’s eight-member congressional delegation was one Republican too many. The 2010 census required the state to shrink the majority-Republican Sixth District by 10,000 people in order to restore one-person, one-vote equality among the districts. Seeing its opportunity for some major new line-drawing, the Legislature conducted a population transfer. It moved 66,417 Republican voters out of the district while moving into it 24,460 Democratic voters from safely Democratic adjoining districts, a swing of more than 90,000 votes. And guess what? The 20-year Republican incumbent, Roscoe Bartlett, lost the 2012 election to the Democratic candidate, John Delaney, who has won re-election ever since.”
Yes. Here is the top comment I endorsed:
Every time I read about the problem of gerrymandering and how districts are drawn to favor one party or another I keep thinking about conversations with Europeans about how they deal with gerrymandering.
One approach is not to have small electoral districts but rather have multiple seats open in a single state. A parliamentary style election in which party has a list of candidates allows proportional representation. If 40% of voters vote for a Republican, 35% for a Democrat, 15% for Libertarians and 10% for the Greens, those percentages determine the allocation of seats.
Alternatively is to have non-partisan “boundary commissions” as they are called in Great Britain. A similar approach is used in California and Arizona.
Gerrymandering – combined with corporate funding of candidates – has corroded American political system.
“Support for the environment has deep bipartisan roots, going back to the 1970s, when the architecture of today’s environmental regulation was created by such measures as the Clean Air and Water Acts and the establishment of the Environmental Protection Agency, all signed into law by President Richard Nixon. Public support remains strong and growing. A Gallup Poll this spring found that 71 percent favor alternative energy sources, rather than continuing to develop fossil fuel resources. But President Trump, in love with coal and the country’s dwindling population of miners, has placed in charge of his environmental program a man who has spent his adult life committed to the destruction of environment-friendly policies and who is running the Environmental Protection Agency by secrecy and fear. What are they thinking?”
Thank you Linda Greenhouse.
Here is a comment I particularly liked.
The gerrymandered state legislatures and Congress, the brainstorm of the Koch Bottles (who bankroll ALEC), are the breeding ground(s) for “what are they thinking?” The clear answer is “nothing.”
One of the great evils of 21st Century American life is the 2010 Citizens United decision which, Ms. Greenhouse, you know well. What the uncapping of spending on political campaigns and the shielding of donors did was to cast not a veil but heavy, thick drapes across the divide between public inspection and private interests in the outcome of political races. And with Neil Gorsuch illegally installed as Antonin Scalia’s replacement on the SCOTUS, the Right’s steady march towards an oligarchy based on wealth and racial animosity progresses without any impediment, none certainly from the president and the Congress as we now have them.
Few too many Americans took fright when Donald Trump announced for the presidency. Right up until the late night of November 8, 2016, many (including those who stayed home or voted for third party candidates) believed that an imminent destruction of sensible national priorities was to be our portion, an enduring hangover.
Not only Roe v. Wade; voter suppression commissions; the quiet rollback of regulations designed to protect Americans from the predations of commerce and industry; the would-be imposition of citizenship tests based on religious persuasion. Donald Trump’s down escalator is a steep, lurching, dizzying ride. There’s no bottom in sight.
“The Senate Judiciary Committee’s confirmation hearing for Judge Neil M. Gorsuch was just plain embarrassing, and not only for the nominee. But let’s begin with him, skipping over his Republican enablers, who had nothing to do but lob softball questions and praise his answers. If Judge Gorsuch wasn’t the least forthcoming Supreme Court nominee ever to appear at a confirmation hearing, it’s hard to imagine one who could be less forthcoming while still breathing. More interesting and less predictable answers could have come from Siri on an iPhone.
The previous contender for the title of least forthcoming was Justice Antonin Scalia, who died in February 2016 and whom Judge Gorsuch would replace. Nominated by President Ronald Reagan in 1986 and confirmed unanimously, then-Judge Scalia wouldn’t even tell the Judiciary Committee whether he supported Marbury v. Madison, the landmark 1803 decision in which the court under Chief Justice John Marshall established the principle that federal courts can invalidate unconstitutional statutes.”
Thank you Linda Greenhouse. I especially liked your defense of Ruth Ginsberg, who did actally answer many questions.
Here is a comment I reluctantly agree with. I say reluctantly, because I watched most of the hearing, and liked Gorsuch. He was warm, appealing and impenetrable.
The only way to judge a nominee is by his/her lower court rulings. Stealth jurists such as David Souter are exceedingly rare; most judges are consistent in their decisions, and leave a law library filled with past cases that reveal their judicial philosophies. Gorsuch, on that evidence, is a staunch conservative who, if past is prologue, will do great damage to church-state separation, support the disgrace of campaign finance as free speech, and limit the options of women under the law.
It is the Republican Senate, not Gorsuch, that have brought the nation to this miserable juncture. Their refusal to even consider Merrick Garland will stand as precedent for many years as the quintessential example of the legislative branch’s usurpation of the judiciary.
“……Lloyd Gaines was a graduate of Lincoln University, Missouri’s state university for black students, who were excluded from the University of Missouri. He wanted to become a lawyer, but Lincoln University had no law school. He applied to the University of Missouri’s law school, for which his academic record qualified him, but his race did not. His application was rejected, and he was advised to apply for the scholarship that a state law made available to black students forced to leave the state in order to pursue their educational goals. In the language of the statute, university officials “shall have the authority to arrange for the attendance of negro residents of the state of Missouri at the university of any adjacent state to take any course or to study any subjects provided for at the state university of Missouri, and which are not taught at the Lincoln university, and to pay the reasonable tuition fees for such attendance.”
Mr. Gaines declined the offer. Represented by Charles Hamilton Houston, a pioneering lawyer for the N.A.A.C.P., he went to court. He lost in the Missouri Supreme Court, which noted that he could attend law school with full tuition paid and with only minor inconvenience at the state law schools of Kansas, Nebraska, Iowa or Illinois, all of which accepted black students.
“We think that these matters are beside the point,” Chief Justice Charles Evans Hughes wrote for the United States Supreme Court, overturning the state court’s ruling. “The basic consideration is not as to what sort of opportunities other states provide, or whether they are as good as those in Missouri, but as to what opportunities Missouri itself furnishes to white students and denies to Negroes solely upon the ground of color.” The chief justice went on to say that each state was “responsible for its own laws establishing the rights and duties of persons within its borders,” and that “it is an obligation the burden of which cannot be cast by one state upon another, and no state can be excused from performance by what another state may do or fail to do.” ”
“The Gaines case is not well known today outside of Missouri, where the state university has a scholarship in his name and 10 years ago awarded him a posthumous honorary degree. But it has been rediscovered in the recent litigation over state restrictions on abortion. Two years ago, a federal district judge in Alabama, Myron Thompson, invoked the case in striking down the state’s requirement that doctors who perform abortions have admitting privileges at local hospitals.
Because most hospitals in Alabama refused to give admitting privileges to doctors who performed abortions, the requirement would have closed three of the state’s five abortion clinics. The state argued that women could go elsewhere. But “the state could identify no precedent for a court to consider conduct outside the political boundaries of a jurisdiction in order to justify the constitutionality of actions by that jurisdiction,” Judge Thompson wrote, citing the Gaines case.”
“So Bill Clinton appears well on his way back to the White House (albeit in a different capacity) while Kenneth W. Starr, the independent counsel who pursued him and his sexual indiscretions all the way to his impeachment, is out of a job. Anyone who imagined such a reciprocal reversal of fortune belongs in a Hollywood writers’ room — although probably not even “The West Wing” would have offered up such a plot twist.
Mr. Starr resigned two weeks ago from his tenured position as a law professor at Baylor University. He had served the Baptist university as president for six years until May, when the trustees fired him for failing to respond adequately to, of all things, a sex scandal involving assaults and criminal behavior by members of the university’s super-lucrative Big 12 football team. Originally, Mr. Starr, a former federal judge and United States solicitor general, was going to stay on as chancellor. But he resigned from that position on June 1, saying that “the captain goes down with the ship.” Evidently, the original plan to retain his position on the law faculty proved untenable as well.”