john paul stevens

Japanese American Groups Supporting American Muslims in Fight Against Discrimination

The Washington Post today reports on the work some Japanese American groups are doing to support American Muslims, who are increasingly the objects of widespread fear and suspicion because of their faith. These groups see echoes of the persecution Japanese Americans faced during World War II in the scapegoating and vilification of American Muslims, exemplified by the congressional hearings Rep. Peter King is beginning this week:

Spurred by memories of the World War II-era roundup and internment of 110,000 of their own people, Japanese Americans - especially those on the West Coast - have been among the most vocal and passionate supporters of embattled Muslims. They've rallied public support against hate crimes at mosques, signed on to legal briefs opposing the government's indefinite detention of Muslims, organized cross-cultural trips to the Manzanar internment camp memorial near the Sierra Nevada mountains in California, and held "Bridging Communities" workshops in Islamic schools and on college campuses.

Last week, Rep. Michael M. Honda (D-Calif.), who as a child spent several wartime years living behind barbed wire at Camp Amache in southeastern Colorado, denounced King's hearings as "something similarly sinister."

"Rep. King's intent seems clear: To cast suspicion upon all Muslim Americans and to stoke the fires of anti-Muslim prejudice and Islamophobia," Honda wrote in an op-ed published by the San Francisco Chronicle.

Last November, in the heat of the debate over the Park51 Islamic community center in lower Manhattan (aka the “Ground Zero Mosque”), former Supreme Court Justice John Paul Stevens spoke [pdf] about the parallel between the prejudice Japanese Americans faced during World War II the demonization that American Muslims are facing today. Stevens, a WWII veteran, recalled a visit to Pearl Harbor in 1994, when he spotted a group of Japanese tourists and had to fight his first reaction, which was that “those people really don’t belong here”:

But then, after a period of reflection, some of those New Yorkers may have had second thoughts, just as I did at the Arizona. The Japanese tourists were not responsible for what some of their countrymen did decades ago; the Muslims planning to build the mosque are not responsible for what an entirely different group of Muslims did on 9/11. Indeed, terrorists like those who killed over 3, 000 Americans -including Catholics , Jews , Protestants, atheists and some of the 600 ,000 Muslims who live in New York -have also killed many more Muslims who disagree with their radical views in other parts of the world. Many of the Muslims who pray in New York mosques may well have come to America to escape the intolerance of radicals like those who dominate the Taliban. Descendants of pilgrims who came to America in the 17th century to escape religious persecutions -as well as those who thereafter joined the American political experiment that those people of faith helped launch -should understand why American Muslims should enjoy the freedom to build their places of worship wherever permitted by local zoning laws.

Our Constitution protects everyone of us from being found guilty of wrongdoing based on the conduct of our associates. Guilt by association is unfair. The monument teaches us that it is also profoundly unwise to draw inferences based on a person's membership in any association or group without first learning something about the group. Its message is a powerful reminder of the fact that ignorance -that is to say, fear of the unknown -is the source of most invidious prejudice.


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2008’s Court

David Savage of the Los Angeles Times and Adam Liptak of the New York Times both examined this week how president Obama’s two Supreme Court picks are changing the dynamic of the high court. “Sonia Sotomayor and Elena Kagan,” writes Savage, “have joined the fray and reenergized the liberal wing.”

Gone are the mismatches where the Scalia wing overshadowed reserved and soft-spoken liberals like now-retired Justices David H. Souter and John Paul Stevens. Instead, the liberals often take the lead and press attorneys defending the states or corporations.

"They're clearly on a roll," said Washington attorney Lisa S. Blatt, who has argued regularly before the high court. "They are engaged and really active. It just feels like a different place."

That dynamic was on display this fall, when a court that leans conservative on cases of crime and punishment heard California's appeal in a case where a panel of three federal judges had ordered the release of about 40,000 prisoners. The state's lawyer stepped to the lectern with reason to expect a friendly reception.

The order is "extraordinary and unprecedented," Carter G. Phillips began, and "extraordinarily premature" because the state was not given enough time to solve its prison problems.

But Sotomayor soon cut him off.

"Slow down from the rhetoric," she said, launching into a withering discussion of the state's 20-year history of severe prison overcrowding and "the needless deaths" from poor medical care.

Kagan picked up the theme, contending that the state had spent years fighting with the judges but not solving the problem. It's too late now for "us to re-find the facts," Kagan said. The California judges had delved into the details for 20 years, and it was time now to decide whether the remedy was right, she said.

While Kagan, due to her recent role as the administration’s Solicitor General, has had to sit out many of the most contentious cases since she took her seat on the court, Sotomayor has clearly shown herself “alert to the humanity of the people whose cases make their way to the Supreme Court,” writes Liptak. He looks at the three opinions Sotomayor has written commenting on the court’s decision not to hear particular cases:

Justice Sotomayor wrote three of the opinions, more than any other justice, and all concerned the rights of criminal defendants or prisoners. The most telling one involved a Louisiana prisoner infected with H.I.V. No other justice chose to join it.

The prisoner, Anthony C. Pitre, had stopped taking his H.I.V. medicine to protest his transfer from one facility to another. Prison officials responded by forcing him to perform hard labor in 100-degree heat. That punishment twice sent Mr. Pitre to the emergency room.

The lower courts had no sympathy for Mr. Pitre’s complaints, saying he had brought his troubles on himself.

Justice Sotomayor saw things differently.

“Pitre’s decision to refuse medication may have been foolish and likely caused a significant part of his pain,” she wrote. “But that decision does not give prison officials license to exacerbate Pitre’s condition further as a means of punishing or coercing him — just as a prisoner’s disruptive conduct does not permit prison officials to punish the prisoner by handcuffing him to a hitching post.”

In the courtroom, she was no less outraged at the argument in a case concerning prison conditions in California, peppering a lawyer for the state with heated questions.

“When are you going to avoid the needless deaths that were reported in this record?” she asked. “When are you going to avoid or get around people sitting in their feces for days in a dazed state?”

In her confirmation hearings before the Senate Judiciary Committee, Kagan praised her former employer and mentor Justice Thurgood Marshall, saying his “whole life was about seeing the courts take seriously claims that were not taken seriously anyplace else.” Obama’s appointment of two justices who follow vocally in his path may be one of the most profound and lasting results of the 2008 elections.
 

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Stevens: Campaign money is “simply not speech”

In a wide-ranging interview with NPR’s Nina Totenberg this week, former Justice John Paul Stevens touched on his strong opposition to the Supreme Court’s decision in Citizens United v. FEC, to which he wrote an adamant dissenting opinion.

As for the court's recent ruling allowing corporations and unions to spend unlimited amounts on candidate elections, Stevens thinks it was dead wrong — and, indeed, still doesn't think that money is the same thing as speech. "Can you hear it talk? Can you read it? [Money is] simply not speech," he says. "And I have to confess that my own views are that there is an interest in trying to have any debate conducted according to fair rules that treat both sides with an adequate opportunity to express their view. We certainly wouldn't, in our arguments in this court, give one side a little more time because they could pay higher fees to hire their lawyers, or something like that."

Stevens is hardly alone among legal luminaries in thinking that the decision in Citizens United was flat-out wrong. On Monday, People For and the fair elections group Free Speech For People sent a letter signed by over 50 prominent lawyers and law professors urging Congress to consider amending the Constitution to undo Citizens United.

Corporate political expenditure regulations do not infringe any speech rights of the American people whatsoever. Rather, such regulations reflect the power of the American people to regulate corporations and the rules that govern such entities as the people and our representatives see fit. Justice John Paul Stevens’ dissent rightly calls the majority opinion a “radical departure from what has been settled First Amendment law.”


You can read the full letter here.
 

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Judicial Activism?

In response to the GOP’s repeated accusations of Elena Kagan’s so-called judicial activism, Senator Dick Durbin (D-IL) fired back with a quote from Justice John Paul Stevens’ sharp dissent in Citizens United: “Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

As Senator Durbin pointedly noted, the Court’s reversal of decades of precedent was “espoused by men who swore they would never engage in judicial activism” – men like Chief Justice John Roberts, who during his own confirmation hearings spoke about how judges are like umpires because they “don’t make the rules, they apply them” and must have “the humility to recognize that they operate within a system of precedent”…and then went on to author the majority opinion in Citizens United. “If that isn’t judicial activism,” said Durbin, “then I don’t know what is.”

And as for the “well-known activist judges” with whom Ms. Kagan has been “associating”, Sen. Durbin spoke out against Republicans’ criticism that Kagan might be a judge in the mold of Thurgood Marshall, for whom she clerked. He instead praised the former justice, citing his critical role in successfully arguing the landmark case of Brown v. Board of Education, and saying that Marshall had changed America for the better. “If that is an activist mind at work, we should be grateful as a nation.”

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GOP Strategy Call: Obstruct Supreme Court Nomination to Delay Policy Debates

The day Justice John Paul Stevens announced his retirement, Senate Republican leadership vowed to obstruct the confirmation of whoever was nominated to replace him. Today, Republican Senators who had previously praised nominee Elena Kagan’s intellect and qualifications have become strikingly less supportive.

And now we have evidence that the obstruction of Obama’s Supreme Court pick, as a way of delaying progress on policy initiatives like climate change regulation and immigration reform, has been the GOP’s explicit strategy all along.

Talking Points Memo’s Brian Beutler obtained a recording of an April 22 RNC strategy call led by right-wing activist Curt Levey:

The crux of the GOP's strategy is to use Obama's nominee to wedge vulnerable Democratic senators away from the party, and drag the confirmation fight out until the August congressional recess, to eat up precious time Democrats need to round out their agenda.

"[I]t wouldn't take much GOP resistance to push a final vote into early August," Levey advised. "And, look, the closer we could get it to the election, frankly, the better. It would be great if we could push it past the August recess because that forces the red and purple state Democrats to have to go home and face their constituents."

Levey acknowledged that a filibuster likely won't last--that Obama's nominee, now known to be Solicitor General Elana Kagan, will almost certainly be confirmed. But he hammered home the point to Republicans that there's value in mischaracterizing any nominee, and dragging the fight out as long as possible, whether or not Obama's choice is particularly liberal.

This is frustrating, but not surprising, from a party that has recently displayed an unparalleled mastery of the Senate’s rules for delay. If they’re willing to stall the confirmation of one of their own party’s most prominent spokespeople, why would they not draw out the confirmation process for an obviously qualified Supreme Court nominee?
 

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Kyl disagrees with 69% of Americans on SCOTUS nominee

In his remarks on the retirement of Justice John Paul Stevens, President Obama alluded to his displeasure (which he hasn’t exactly been keeping secret) with the Supreme Court’s ruling in Citizens United v. FEC. Now the GOP is crying “litmus test”:

Senate Minority Whip Jon Kyl (R-Ariz.) invoked Supreme Court Chief Justice John Roberts’s name in a Senate floor speech Tuesday warning Obama not to nominate someone who would be an automatic vote against corporate interests. He made it clear such a nomination could provoke a GOP filibuster.

“The big corporation might have the right law and facts in a particular case,” said Kyl, who noted that Roberts in his own confirmation hearing said that in a dispute between a “big guy and little guy” he would vote for whoever had the law behind him.

“You don’t go on to the bench [saying], ‘I’m always going to be against the big guy,’ ” said Kyl.

Kyl’s straw man argument not only misconstrues Obama’s words, but shows how out of touch his party has become with the American people. A People For poll in February found that a full 78% of Americans—from across the political spectrum— believe that corporations should be limited in how much they can spend to influence elections, with 70% believing that corporations already have too much influence. And asked whether President Obama should nominate a Supreme Court justice who supports limiting corporate spending in elections, 69% said yes.

And just this week, a candidate running on a platform that included a Constitutional Amendment to overturn Citizens United won a resounding victory in a congressional special election in Florida.

Given that kind of evidence, Senator Kyl might want to rethink his decision to make himself a champion of corporate interests over the rights of ordinary Americans.
 

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Sessions revives the empty “judicial activism” argument

Justice Stevens only announced his resignation a few days ago, and already the far right is throwing around the familiar Republican talking point about a potential “activist” Supreme Court nominee:

Several days after Supreme Court Justice John Paul Stevens announced his decision to retire, Republican leaders are already making it clear they'll put up a fight if President Obama nominates a left-leaning judicial activist.

Sen. Jeff Sessions, R-Ala., said if the president wishes to avoid a filibuster, he should choose someone with "mainstream" judicial views as Steven's successor.

"If it's somebody like that, clearly outside of the mainstream, then I think every power should be utilized to protect the Constitution," Sessions, the top Republican on the Senate Judiciary Committee, told NBC's Meet the Press.

Sessions elaborated:

It's when an unelected lifetime-appointed judge, or five of them use their power, unaccountable power, to redefine the meaning of the Constitution to effectuate some policy agenda, some empathy, some ideology that they have, that's what threatens the average American.

The “judicial activism” argument, which we’re sure to be hearing repeatedly in the coming weeks, rings hollow in the wake of this conservative-dominated Court’s decision in Citizens United v. FEC. That decision, which overturned over a century of judicial precedent to hand corporations an outsized amount of influence in the electoral process, is exactly the kind of judicial act that, in Sessions’ words, “threatens the average American.”

And it’s worth noting the multiple studies that have shown that the more conservative justices on the Supreme Court are the ones most likely to vote to strike down laws passed by Congress and decisions by federal regulators.

It’s time for conservatives to either retire the “judicial activism” argument, or start applying it to their own nominees.
 

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Republicans Already Vowing to Obstruct Supreme Court Nomination

We don’t know who the next Supreme Court nominee will be, but Senate Republicans are already vowing to put up a fight.

Senate minority leader Mitch McConnell issued a statement this morning wishing retiring Justice John Paul Stevens well and warning that whoever is nominated to replace him won’t get off easy:

As we await the President’s nominee to replace Justice Stevens at the end of his term, Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an even-handed reading of the law.

We respect the judicial confirmation process, but shouldn’t Republicans see who they’ll be considering before they promise “sustained and vigorous” opposition? Or are they having so much fun holding up nominations that it doesn’t really matter?
 

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Continuing Stevens’ Legacy

Justice John Paul Stevens’ announcement that he will retire this summer marks the end of an era for the Supreme Court and a crucial opportunity for President Obama and the Senate to shape the Court’s direction.

Stevens—the last survivor of the era before Supreme Court nominations became televised partisan battlegrounds—has been a bulwark against a Court that has been moving aggressively to the right. His adamant dissent to this year’s decision in Citizens United v. FEC, like his dissent in Bush v. Gore, were strong defenses of democracy and indictments of an increasingly politicized Court.

President Obama now has the chance to nominate another Justice who will prioritize the rights of ordinary Americans. People for the American Way President Michael B. Keegan said today:

“His retirement will give President Obama his second opportunity to nominate a jurist for our nation’s Highest Court. I hope he will select someone who will continue Justice Stevens’s tradition of working to ensure that individuals receive the fair treatment that our Constitution guarantees. In recent years, the Court has given extraordinary preference to powerful interests at the expense of ordinary Americans. Justice Stevens was a bulwark against that trend. Our country’s next Justice must play a similar role.”

Let’s hope that Republicans in the U.S. Senate will put aside their habits of obstructionism and support the nomination of a Justice who will continue Stevens’ strong, even-handed legacy.
 

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Don’t Believe the Right’s Propaganda on the Supreme Court

With everyone talking about the retirement of Justice David Souter, the Radical Right’s propaganda machine is set to max.

Right Wing Watch is reporting on the Right’s reaction.  One of the more laughable claims comes from Wendy Long of the Judicial Confirmation Network:

The current Supreme Court is a liberal, judicial activist court.  Obama could make it even more of a far-left judicial activist court, for a long time to come …

Calling the current Court liberal is like calling Mitt Romney consistent – you can’t say it with a straight face.  In fact, no less an authority than Justice John Paul Stevens has pointed out that “every judge who’s been appointed to the court since Lewis Powell has been more conservative than his or her predecessor,” with the possible exception of Justice Ginsburg.

But, for the sake of argument, let’s review some of the highlights of the current “liberal” Supreme Court.

In order to achieve their desired ideological results, the Far Right justices have recklessly toppled precedents, or even ignored them while pretending not to, with alarming frequency.  For example, the restrictive federal abortion ban upheld by the Roberts Court was essentially identical to one the Court had struck down before Roberts and Alito joined the bench.  Unfortunately, extreme Right Wing ideology trumped the rule of law.

Voting rights have also come under attack.  The Roberts Court upheld the constitutionality of the most restrictive voter ID law in the country, an Indiana law requiring people to present a currently valid, government-issued photo ID in order to vote.  This imposes a substantial burden on the elderly who don’t drive, college students, and the poor who don’t own cars.  Indiana was unable to identify a single case of in-person voter fraud occurring in its history.  That didn’t stop the Roberts Court from upholding a restriction that kept many Americans from being able to go to the polls on Election Day and cast a vote.

Even our very access to the courts has come under attack from the “liberal” Supreme Court.

Lilly Ledbetter was a victim of sex discrimination effectively barred from the courthouse.  Late in her career, she learned that she had, over the years, been subjected to salary discrimination on the basis of her sex, and she sued.  A jury found that she had been illegally discriminated against.  Yet a 5-4 Right Wing majority held that she should have sued within 180 days of the initial discriminatory conduct—even though she didn’t learn that she was being discriminated against for more than a decade.

The Court also closed the courthouse door in Riegel v. Medtronic, holding that patients injured by a defective medical device cannot sue for damages for violations of state common law if it was approved for marketing by the Food and Drug Administration and made to the agency’s specifications.  To reach this result, the Court had to interpret a federal law in a manner directly contrary to how its Senate sponsor said it was intended.

Keith Bowles was yet another victim denied his day in court.  After Bowles was denied relief in federal district court, the judge informed him that he had 17 days to file an appeal.  Unbeknownst to him, the rules really gave him only 14 days.  So when Bowles, relying on the federal judge, filed on day 16, a narrow 5-4 Supreme Court majority said that he had filed too late.  In so doing, the Court majority overruled clear and principled precedent that protected people in his situation.  In dissent, Justice Souter correctly wrote that “it is intolerable for the judicial system to treat people this way, and there is not even a technical justification for this bait and switch.”

The danger from right-wing justices was clear in Boumediene v. Bush, a case related to the then-President’s claim of virtually unlimited executive powers to conduct the war on terror.  The case involved the constitutionality of the Military Commissions Act of 2006, which eliminated federal court jurisdiction over habeas corpus claims by certain foreign detainees.  The Court rebuked President Bush’s vision of the presidency as an office of limitless power and declared that the president of a free nation cannot simply lock people up and throw away the key like some third-world dictator.  Chillingly, with Chief Justice Roberts and Justices Alito, Scalia, and Thomas dissenting, the case was decided by a single vote, 5-4.  One more hard-right justice on the Court, and the decision would likely have gone the other way.

That’s why it’s crucial to have justices who are committed to our core constitutional values of justice and equality under the law.

It is of the utmost importance that Justice Souter be replaced by a powerful advocate for our Constitution—a justice in the mold of great jurists like Thurgood Marshall and William Brennan.  Our nation cannot afford anything less.

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Justice Stevens moderates panel on Marbury v. Madison

Today, at an event sponsored by the First Amendment Center and the Supreme Court Fellows Program Alumni Association, Justice John Paul Stevens, the Senior Associate on the Supreme Court, moderated a discussion with the authors of a new book, The Great Decision: Jefferson, Adams, Marshall and the Battle for the Supreme Court, Clifford Sloan and David McKean. The Justice gave only a brief introduction before the authors spoke about the book and answered questions. Justice Stevens first spoke about his initial exposure to Marbury v. Madison in law school. He jokingly reminisced about the length of time spent on the case, stating that his teacher spent the first six weeks of a constitutional law class devoted solely to the intricacies of the case. He voiced his admiration for the case, calling it fascinating, and agreeing with the assertions by the panelists that the case is “the cornerstone of the Constitutional system.

He then moved on to an issue that, while he admitted was not directly on topic, was very important, the separation of powers. Marbury solidified the independence of the judiciary as a separate branch of government with its own powers. Stevens strongly believes in this and voiced concern that the wall between the executive and the judiciary is weakening. He recalled that when he was sworn in as a justice, his ceremony was performed in the Supreme Court which he viewed to be strongly symbolic of the separation between the political appointment process and his judicial post. Since that time, however, the practice changed and is now performed in the White House. He has boycotted the past four swearing in ceremonies, as he believes that the judiciary should be strongly separated from the political branches, beginning with the swearing in. Stressing the symbolism of the place and manner of the oath, he voiced hope for a change in this process with the next appointee.

Again focusing on the importance of separating the judicial branch from the political process, Stevens questioned the authors about the impeachment of Justice Chase from the Supreme Court shortly after Marbury was decided. Essentially, the opposition party in the House of Representatives sought to impeach Chase because they did not agree with his decisions politically, and used the impeachment as a retaliation against the Court. Chase was eventually acquitted, establishing the doctrine that judges may not be removed due to a dispute over their political preferences or political disagreement with their decisions.

Those looking to for a discussion focused on Stevens's thoughts on the issue might have been disappointed.  Through out the event Stevens was largely content to listen to the panelists. When he spoke he showed his vast knowledge on the subject area, but remained in the role of moderator and gave much of the spot light to the panelists.

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