The Protection Of Our Voting Rights Are Far More Important than the Reactionary Politics Of a Right Wing Dominated Supreme Court!

http://www.nytimes.com/2013/02/28/us/politics/conservative-justices-voice-skepticism-on-voting-law.html?_r=0

All,

To anyone who stupidly thinks even for a nanosecond that these virulently racist judicial tyrants masquerading as legal protectors of our constitutional rights cannot and will not blithely take away and destroy our rights as both citizens and human beings if we simply sit idly by and allow it to happen in this modern racist cesspool we call "civilization", guess again...Remember Dred Scott and what happened not only to him but to far too many of his historical forebears and descendants...Stay tuned and pass the word...

Kofi

THE PAST IS PROLOGUE:

Dred Scott v. Sanford case:
The Supreme Court decision of
1857

Click here for the text of this historical document:
http://www.pbs.org/wgbh/aia/part4/4h2933t.html

In March of 1857, the United States Supreme Court, led by Chief Justice Roger B. Taney, declared that all blacks -- slaves as well as free -- were not and could never become citizens of the United States. The court also declared the 1820 Missouri Compromise unconstitutional, thus permiting slavery in all of the country's territories.

The case before the court was that of Dred Scott v. Sanford. Dred Scott, a slave who had lived in the free state of Illinois and the free territory of Wisconsin before moving back to the slave state of Missouri, had appealed to the Supreme Court in hopes of being granted his freedom.

Taney -- a staunch supporter of slavery and intent on protecting southerners from northern aggression -- wrote in the Court's majority opinion that, because Scott was black, he was not a citizen and therefore had no right to sue. The framers of the Constitution, he wrote, believed that blacks "had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it."

Referring to the language in the Declaration of Independence that includes the phrase, "all men are created equal," Taney reasoned that "it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration. . "

Voting Rights Law Draws Skepticism From Justices

Voting Procedures: A lawyer for the NAACP Legal Defense and Educational Fund talks about arguing in favor of the Voting Rights Act at the Supreme Court.

By ADAM LIPTAK 

February 27, 2013

New York Times


WASHINGTON — A central provision of the Voting Rights Act of 1965 may be in peril, judging from tough questioning on Wednesday from the Supreme Court’s more conservative members.

Related

Voting Act Challenge Hinges on a Formula (February 27, 2013)
Statue of Rosa Parks Is Unveiled at the Capitol (February 28, 2013)
Times Topic: Voting Rights Act (1965)
Brief Supporting Same-Sex Marriage Gets More Republican Support (February 28, 2013) 

Related in Opinion

Charles M. Blow: Vulnerability of the Vote (February 28, 2013)
Editorial: Congress’s Power to Protect the Vote (February 28, 2013)

Christopher Gregory/The New York Times
Representative Sheila Jackson Lee, Democrat of Texas, spoke at a rally outside the Supreme Court on Wednesday as the justices heard arguments over a central provision of the Voting Rights Act of 1965. The provision was challenged by Shelby County, Ala.

Christopher Gregory/The New York Times
Protesters gathered outside the Supreme Court on Wednesday.

Readers’ Comments:

"Ironic that this comes to the Supreme Court after the 2012 election, which witnessed the most aggressively racist voting laws and policies in certain states since the Civil Rights era."

--Look Ahead, WA

If the court overturns the provision, nine states, mostly in the South, would become free to change voting procedures without first getting permission from federal officials.

In a vivid argument in which the lawyers and justices drew varying lessons from the legacies of slavery, the Civil War and the civil rights movement, the court’s conservative wing suggested that the modern South had outgrown its troubled past and that the legal burdens on the nine states were no longer justified.
Chief Justice John G. Roberts Jr. asked skeptically whether “the citizens in the South are more racist than citizens in the North.” Justice Anthony M. Kennedy, whose vote is probably crucial, asked whether Alabama today is an “independent sovereign” or whether it must live “under the trusteeship of the United States government.”

Justice Antonin Scalia said the law, once a civil rights landmark, now amounted to a “perpetuation of racial entitlement.”

That remark created the sharpest exchange of the morning, with Justice Sonia Sotomayor on the other end. “Do you think that the right to vote is a racial entitlement?” she later asked a lawyer challenging the law, with an edge in her voice that left little doubt she was responding to Justice Scalia’s statement. “Do you think that racial discrimination in voting has ended, that there is none anywhere?”

The outcome of the case will most likely remain in doubt until the end of the court’s current term, in June. Many legal observers predicted that the justices would overturn part of the voting law in 2009, when the court had the same conservative-leaning majority, only to be proven wrong.

One important change, however, is that Chief Justice Roberts suggested in the 2009 ruling that Congress update its formula to determine which parts of the country should remain subject to the law. Congress has not done so.

The question at the heart of Wednesday’s argument was whether Congress, in reauthorizing the provision for 25 years in 2006, was entitled to use a formula based on historic practices and voting data from elections held decades ago.

Should the court strike down the law’s central provision, it would be easier for lawmakers in the nine states to enact the kind of laws Republicans in several states have recently advocated, including tighter identification standards. It would also give those states more flexibility to move polling places and redraw legislative districts.

The four members of the court’s liberal wing, citing data and history, argued that Congress remained entitled to make the judgment that the provision was still needed in the covered jurisdictions. The law passed the Senate unanimously and House overwhelmingly, by a vote of 390 to 33 in 2006.

“It’s an old disease,” Justice Stephen G. Breyer said of efforts to thwart minority voting. “It’s gotten a lot better. A lot better. But it’s still there.”

Justice Kennedy said that history taught a different lesson, referring to the reconstruction of Europe after World War II. “The Marshall Plan was very good, too,” he said. “But times change.”

Justice Breyer looked to a different conflict.

“What do you think the Civil War was about?” he asked. “Of course it was aimed at treating some states differently than others.” He also said that the nation lived through 200 years of slavery and 80 years of racial segregation.

Debo P. Adegbile, a lawyer with the NAACP Legal Defense and Educational Fund, which joined the government in defending the law, echoed that point. “This statute is in part about our march through history to keep promises that our Constitution says for too long were unmet,” he said.

The law was challenged by Shelby County, Ala., which said that its federal preclearance requirement, in Section 5 of the law, had outlived its usefulness and that it imposed an unwarranted badge of shame on the affected jurisdictions.

The county’s lawyer, Bert W. Rein, said that “the problem to which the Voting Rights Act was addressed is solved.”

In any event, he added, the unusual requirement that a sovereign state’s law did not count until blessed by the federal government required substantial justification. The law, he said, was “an unusual remedy, never before and never after invoked by the Congress, putting states into a prior restraint in the exercise of their core sovereign functions.”

It was common ground among the advocates and justices that the act was important and necessary when it was first enacted.

“There is no question that the Voting Rights Act has done enormous good,” Justice Samuel A. Alito Jr. said. “It’s one of the most successful statutes that Congress passed in the 20th century and one could probably go farther than that.”

There was agreement, too, that the nation and the South in particular have taken great strides toward equality.

“There isn’t anybody on any side of this issue who doesn’t admit that huge progress has been made,” Justice Ruth Bader Ginsburg said.

Most of the argument instead concerned the formula for determining which states the law covered.

Chief Justice Roberts reeled off statistics to suggest that the coverage formula no longer made sense. Massachusetts, which is not covered, “has the worst ratio of white voter turnout to African-American voter turnout,” he said. Mississippi, which is covered, has the best ratio, he said, with African-American turnout exceeding that of whites.

The more liberal justices responded that the nine states were responsible for a sharply disproportionate share of federal voting-rights violations, adding that Alabama was in a poor position to challenge the choices Congress made in deciding which parts of the country to cover.

“Under any formula that Congress could devise,” Justice Elena Kagan said, citing data about voting rights suits, “it would capture Alabama.”

The point seemed to interest Justice Kennedy, in one of his few questions skeptical of the law’s challenger. “If you could be covered under most suggested formulas for this kind of statute,” he asked Mr. Rein, “why are you injured by this one?”

Should the court strike down the coverage formula when it decides the case, Shelby County v. Holder, No. 12-96, Congress would be free to take a fresh look at what jurisdictions should be covered. But Congress seems unlikely to be able to agree on a new set of criteria, given the current partisan divide, meaning the part of the law requiring federal pre-approval of election changes would effectively disappear.

Justice Kennedy asked whether it would be proper to make the entire country subject to the provision. Solicitor General Donald B. Verrilli Jr. said no, at least based on the information compiled by Congress in connection with the 2006 extension of the law.

Justice Kennedy seemed to view the response as a concession. “And that,” he said, “is because that there is a federalism interest in each state being responsible to ensure that it has a political system that acts in a democratic and a civil and a decent and a proper and a constitutional way.”

Congress has repeatedly extended the preclearance requirement: for 5 years in 1970, 7 years in 1975, and for 25 years in both 1982 and 2006.

But it made no changes after 1975 to the list of jurisdictions covered by Section 5, relying instead on a formula based on historical practices and voting data from elections held decades ago.

It applies to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states, including the boroughs of Brooklyn, Manhattan and the Bronx.


http://www.thenation.com/blog/173126/congress-honors-rosa-parks-while-supreme-court-targets-voting-rights-act#

On American politics and policy:

Congress Honors Rosa Parks While the Supreme Court Targets the Voting Rights Act
by Ari Berman
February 27, 2013
The Nation

President Lyndon B. Johnson signs the Voting Rights Act at US Capitol alongside Martin Luther King Jr. and Rosa Parks. Photo: Yoichi R. Okamoto, courtesy Lyndon Baines Johnson Library and Museum

At 11 am, as Congress unveiled a statue honoring Rosa Parks, the civil rights leaders of today (Including Rep. John Lewis, who nearly died in Selma during "Bloody Sunday") were gathered inside the Supreme Court, listening to a challenge to the centerpiece of the Voting Rights Act. The stark contrast illustrated the profound contradictions of American democracy when it comes to race and political power—the progress we’ve made has always been met by equally intense efforts to roll back that progress. And that remains true today, especially on February 27, 2013.
 
“To honor Rosa Parks in the fullest manner, each of us must do our part to protect that which has been gained, defend the great documents upon which those gains were obtained and continue our pursuit of a more perfect union,” Congressman James Clyburn, who grew up in segregated South Carolina in the 1940s and ’50s, said at the statue unveiling. Parks herself was present when Lyndon Johnson signed the Voting Rights Act in the Capitol rotunda on August 6, 1965. Twelve years before famously refusing to move to the back of a segregated bus in Montgomery, Parks attempted to register to vote. She was denied three times, and had to pass a literacy test and pay a poll tax in 1945 just to exercise what should have been her fundamental right. That’s the way America was before the passage of the Voting Rights Act.

Inside the courtroom, five conservative Justices made the case for why Section 5 of the Voting Rights Act—which compels parts or all of sixteen states with a history of racial discrimination in voting to clear election-related changes with the federal government—is no longer necessary. (See my recent Nation article, “Why Are Conservative Trying to Destroy the Voting Rights Act?” for a definitive account of the Shelby County v. Holder case and the conservative organization and money behind the challenge.)

Section 5 is the most effective section of the most effective civil rights law ever passed by Congress and has been called the “keystone of our voting rights” by Attorney General Eric Holder. But to the conservative majority on the court, Section 5 is an antiquated infringement on state sovereignty, treating some states differently than others based on outdated data from the 1960s and ’70s. Justice Scalia mocked the entirety of the Voting Rights, calling congressional support for the legislation (which has been overwhelmingly reauthorized four times, most recently in 2006, and signed by four Republican presidents) a “perpetuation of racial entitlement.”

It quickly became clear inside the courtroom that there are four votes to uphold Section 5 and four votes to strike it down. Justice Kennedy, as is so often the case, appears to be the swing vote, although he certainly leaned toward the conservatives. Justice Kennedy seemed preoccupied by two questions: number one, does Section 5 still cover the states and localities where discrimination is most concentrated in order to justify its federalism constraints? And number two, are other parts of the Voting Rights Act, most notably Section 2, an adequate replacement for Section 5?
 
Section 2 applies nationwide, permanently, and puts the burden of proof on plaintiffs to show that a voting change is discriminatory after it has gone into effect, whereas Section 5 must be reauthorized by Congress and is targeted only at those with the worst history of voting discrimination, who must pre-clear any voting change with the Department of Justice or a federal court in DC. Section 2 has often been described as the “sword” to Section 5’s “shield.”

Solicitor General Donald Verrilli and NAACP Legal Defend Fund counsel Debo Adegbile did their best to assuage Kennedy’s concerns. Adegbile noted that jurisdictions covered by Section 5 accounted for a quarter of the US population but made up 81 percent of successful published and unpublished lawsuits that reached a favorable verdict for minority plaintiffs under Section 2, proving that discrimination remained localized in Section 5 states. Kennedy seemed unpersuaded:
 
JUSTICE KENNEDY: if Congress is going to single out separate States by name, it should do it by name. If not, it should use criteria that are relevant to the existing [problem] — and Congress just didn’t have the time or the energy to do this; it just reenacted it.

VERRILLI: I think it was rational and effective in 1965. The Court upheld it then, it upheld it three more times after that.

JUSTICE KENNEDY: Well, the Marshall Plan was very good, too, the Morale Act, the Northwest Ordinance, but times change.

VERRILLI: But the question is whether times had changed enough and whether the differential between the covered jurisdictions and the rest of the country had changed enough that Congress could confidently make the judgment that this was no longer needed.

Verrilli and Adegbile described Section 2 as a poor substitute for Section 5. As Kennedy himself noted in 2009, “Section 2 cases are very expensive. They are very long. They are very inefficient.” Section 2 lawsuits are incredibly complex, can take years to adjudicate and often cost millions of dollars, which few victims of voting discrimination can afford. Congress included Section 5 in the Voting Rights Act precisely because case-by-case litigation had failed to stop voting discrimination prior to 1965. “The reason Section 5 was created was because States were moving faster than litigation permitted to catch the new forms of discriminatory practices that were being developed,” said Justice Sotomayor. The genius of Section 5 was to “shift the advantage of time and inertia from the perpetrators of the evil to its victims,” Chief Justice Earl Warren wrote in the 1966 case South Carolina v. Katzenbach, the first of five unsuccessful challenges to Section 5.

In last year’s election cycle, the Justice Department under Section 5 opposed voter ID laws in Texas and South Carolina, early-voting cutbacks in Florida and redistricting maps in Texas. The federal courts in Washington sided with the DOJ in three of four cases, finding evidence of discriminatory effect and/or purpose, while also blocking South Carolina’s voter ID law for 2012. If Section 5 was gone and Section 2 was the only recourse, these major changes would’ve been in effect during the last election, and could only be challenged after years of costly and difficult litigation. The voters disenfranchised in the meantime would have no recourse, other than the hopes of a preliminary injunction from the courts, which is an increasingly rare prospect in a judiciary dominated by conservatives, especially in the South.

Amazingly, the voter suppression attempts that spread nationwide during the last election never came up during the oral arguments. The justices did not hear, for example, that six of the nine fully covered states under Section 5 passed new voting restrictions since 2010, including voter ID laws (Alabama, Mississippi, South Carolina, Texas and Virginia), limits on early voting (Georgia) and restrictions on voter registration (Alabama and Texas), compared to only one-third of noncovered jurisdictions during the same period. The insularity of the Supreme Court was particularly evident today. Opponents of Section 5 pointed to the fact that minority voter registration and turnout rates in places like Alabama are equal to or exceed states not covered by Section 5, but that hardly covers the scope of voting discrimination that exists in the South today.

CHIEF JUSTICE ROBERTS: General, is it the government’s submission that the citizens in the South are more racist than citizens in the North?

GENERAL VERRILLI: It is not, and I do not know the answer to that, Your Honor, but I do think it was reasonable for Congress—

CHIEF JUSTICE ROBERTS: Well, once you said it is not, and you don’t know the answer to it.

GENERAL VERRILLI: It’s not our submission. As an objective matter, I don’t know the answer to that question. But what I do know is that Congress had before it evidence that there was a continuing need based on Section 5 objections, based on the purpose-based character of those objections, based on the disparate Section 2 rate, based on the persistence of polarized voting, and based on a gigantic wealth of jurisdiction-specific and anecdotal evidence, that there was a continuing need.

CHIEF JUSTICE ROBERTS: A need to do what?

GENERAL VERRILLI: To maintain the deterrent and constraining effect of the Section 5 preclearance process in the covered jurisdictions

CHIEF JUSTICE ROBERTS: And not impose it on everyone else?

GENERAL VERRILLI: And—that’s right, given the differential in Section 2 litigation, there was a basis for Congress to do that.

One of the main tensions inside the courtroom was whether Congress or the Court gets to determine what is and isn’t valid under the Voting Rights Act. After all, the act has been overwhelmingly reauthorized four times by Congress, most recently in 2006. To Justice Scalia, that means it must be unconstitutional. “Even the name of it is wonderful: The Voting Rights Act,” Scalia said sarcastically. “Who is going to vote against that in the future?”

Yet both conservative and liberal members of Congress are urging the Court to respect both the original and recent findings of the legislative body. Notes an amicus brief filed by bipartisan members of Congress, including recent chairs of the House Judiciary Committee: “This Court has recognized that Congress acts at the height of its powers when it legislates to regulate the concerns at which the VRA is aimed: racial discrimination, infringement of fundamental rights, and elections. When Congress exercises its powers at the intersection of these three concerns—as it did here—this Court should defer to Congress’s considered judgment.”

Justice Kagan brought this up in an exchange with Shelby County’s lawyer, Bert Rein:

JUSTICE KAGAN: You said the problem [of voting discrimination in the South] has been solved. But who gets to make that judgment really? Is it you, is it the Court, or is it Congress?

MR. REIN: Well, it is certainly not me.

(Laughter.)

JUSTICE SCALIA: That’s a good answer. I was hoping you would say that.

MR. REIN: But I think the question is Congress can examine it, Congress makes a record; it is up to the Court to determine whether the problem indeed has been solved and whether the new problem, if there is one.

JUSTICE KAGAN: Well, that’s a big, new power that you are giving us, that we have the power now to decide whether racial discrimination has been solved? I did not think that that fell within our bailiwick.

It would be a truly radical step for the Court to dismiss the repeated and overwhelming judgment of Congress by striking down Section 5. The disappearance of Section 5 would be a devastating setback for voting rights—akin to the way the Citizens United decision eviscerated campaign finance regulation—and would greenlight the kind of voter suppression attempts that proved so unpopular in 2012.

It’s particularly ironic that Shelby County, Alabama, of all places, would bring this challenge to Section 5, given the recent history of discrimination in the county and state. Before local elections in 2008, the city of Calera redrew its city boundaries, eliminating the City Council’s lone majority-black district, represented by Ernest Montgomery since 2004. The city decreased the black voting-age population in Montgomery’s district from 71 percent to 30 percent by adding three overwhelmingly white subdivisions while failing to include a large surrounding black neighborhood. A day before the election, the Justice Department objected to the change. Calera could have preserved the majority-black district, the city’s demographer told Washington, but the City Council chose not to. Calera held the election in defiance of Justice Department orders, and Montgomery lost by two votes.

The Justice Department negated the election results and, after a year of negotiations, Calera moved from single-member districts to an at-large election system for the City Council. Montgomery was easily elected under the new system, winning the largest number of votes of any candidate, while his opponent from 2008 received the second-fewest. After the two elections, “I realized how important Section 5 is,” Montgomery said.

If it hadn’t been for Section 5, there would be no black members of the city council in Calera. “Assuming I accept your premise…that some portions of the South have changed, your county pretty much hasn’t,” Justice Sotomayor told Rein.

Mr. Montgomery and a large delegation of voting rights activists from Alabama attended the arguments. “Things have gotten a lot better and the reason it has gotten better is because of legislation like Section 5,” he told me after. “We definitely feel it’s still needed. We don’t claim the playing field has leveled. It’s leveling. Eventually maybe we’ll get to the point where Section 5 is not needed, but we’re not there yet.”

   See more at: http://www.thenation.com/blog/173126/congress-honors-rosa-parks-while-supreme-court-targets-voting-rights-act#sthash.F3e7dzSf.dpuf

The Rightwing Corruption of The Supreme Court

Mel Evans/Associated Press
Albert W. Florence was strip-searched twice after being wrongly detained over a fine.

http://www.nytimes.com/2012/04/03/us/justices-approve-strip-searches-for-any-offense.html


THE PAST IS PROLOGUE..

Historical Document
Dred Scott case:
The Supreme Court decision of
1857

Click here for the text of this historical document:
http://www.pbs.org/wgbh/aia/part4/4h2933t.html


In March of 1857, the United States Supreme Court, led by Chief Justice Roger B. Taney, declared that all blacks -- slaves as well as free -- were not and could never become citizens of the United States. The court also declared the 1820 Missouri Compromise unconstitutional, thus permiting slavery in all of the country's territories.

The case before the court was that of Dred Scott v. Sanford. Dred Scott, a slave who had lived in the free state of Illinois and the free territory of Wisconsin before moving back to the slave state of Missouri, had appealed to the Supreme Court in hopes of being granted his freedom.

Taney -- a staunch supporter of slavery and intent on protecting southerners from northern aggression -- wrote in the Court's majority opinion that, because Scott was black, he was not a citizen and therefore had no right to sue. The framers of the Constitution, he wrote, believed that blacks "had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it."

Referring to the language in the Declaration of Independence that includes the phrase, "all men are created equal," Taney reasoned that "it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration. . . ."

http://truth-out.org/news/item/8261-justices-approve-strip-searches-for-any-offense

All,

The sheer rightwing madness of the Supreme Court strikes again! For example: I tried in vain to tell people over 20 years ago that Clarence Thomas was nothing but a vicious reactionary scumbag (like the elder Bushwhacker who appointed him) and was also one of the most venal, servile, and rancid UNCLE TOMS in African American history but far too many of our people made the deadly and simpleminded mistake of thinking that his mere skin color alone was a more important factor in assessing who he was than his actual vile and demented legal record. Now, in contending with what is probably the most backward and reactionary Supreme Court in over a hundred years (I would even strongly suggest that this rightwing Republican judicial junta of Roberts, Alito, Scalia, Thomas, and Kennedy is nearly as bad as the infamous 1857 Court led by the virulently racist and contemptible Chief Justice named Roger Taney who ruled in the historically pivotal Dred Scott v. Sandford case that "the black man has no rights that the white man is bound to respect.") we must now look for still more criminally oppressive decisions to be made by this ruthless judicial junta very soon--including ones on healthcare and affirmative action. The more things change, the more they remain the same indeed...

Kofi


Supreme Court Ruling Allows Strip-Searches for Any Arrest
By ADAM LIPTAK
April 2, 2012
NEW YORK TIMES

WASHINGTON — The Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations.

“Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed,” Justice Kennedy wrote, adding that about 13 million people are admitted each year to the nation’s jails.

The procedures endorsed by the majority are forbidden by statute in at least 10 states and are at odds with the policies of federal authorities. According to a supporting brief filed by the American Bar Association, international human rights treaties also ban the procedures.

The federal appeals courts had been split on the question, though most of them prohibited strip-searches unless they were based on a reasonable suspicion that contraband was present. The Supreme Court did not say that strip-searches of every new arrestee were required; it ruled, rather, that the Fourth Amendment’s prohibition of unreasonable searches did not forbid them.

Daron Hall, the president of the American Correctional Association and sheriff of Davidson County, Tenn., said the association welcomed the flexibility offered by the decision. The association’s current standards discourage blanket strip-search policies.

Monday’s sharply divided decision came from a court whose ideological differences are under intense scrutiny after last week’s arguments on President Obama’s health care law. The ruling came less than two weeks after a pair of major 5-to-4 decisions on the right to counsel in plea negotiations, though there Justice Kennedy had joined the court’s liberal wing. The majority and dissenting opinions on Monday agreed that the search procedures the decision allowed — close visual inspection by a guard while naked — were more intrusive than being observed while showering, but did not involve bodily contact.

Justice Stephen G. Breyer, writing for the four dissenters, said the strip-searches the majority allowed were “a serious affront to human dignity and to individual privacy” and should be used only when there was good reason to do so.

Justice Breyer said that the Fourth Amendment should be understood to bar strip-searches of people arrested for minor offenses not involving drugs or violence, unless officials had a reasonable suspicion that they were carrying contraband.

Monday’s decision endorsed a recent trend, from appeals courts in Atlanta, San Francisco and Philadelphia, allowing strip-searches of everyone admitted to a jail’s general population. At least seven other appeals courts, on the other hand, had ruled that such searches were proper only if there was a reasonable suspicion that the arrested person had contraband.

According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.

Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.

The case decided Monday, Florence v. County of Burlington, No. 10-945, arose from the arrest of Albert W. Florence in New Jersey in 2005. Mr. Florence was in the passenger seat of his BMW when a state trooper pulled his wife, April, over for speeding. A records search revealed an outstanding warrant for Mr. Florence’s arrest based on an unpaid fine. (The information was wrong; the fine had been paid.)

Mr. Florence was held for a week in jails in Burlington and Essex Counties, and he was strip-searched in each. There is some dispute about the details, but general agreement that he was made to stand naked in front of a guard who required him to move intimate parts of his body. The guards did not touch him.

“Turn around,” Mr. Florence, in an interview last year, recalled being told by jail officials. “Squat and cough. Spread your cheeks.”

“I consider myself a man’s man,” said Mr. Florence, a finance executive for a car dealership. “Six-three. Big guy. It was humiliating. It made me feel less than a man.”

Justice Kennedy said the most relevant precedent was Bell v. Wolfish, which was decided by a 5-to-4 vote in 1979. It allowed strip-searches of people held at the Metropolitan Correctional Center in New York after “contact visits” with outsiders.

As in the Bell case, Justice Kennedy wrote, the “undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband.”

The majority and dissenting opinions drew differing conclusions from the available information about the amount of contraband introduced into jails and how much strip-searches add to pat-downs and metal detectors.

Justice Kennedy said one person arrested for disorderly conduct in Washington State “managed to hide a lighter, tobacco, tattoo needles and other prohibited items in his rectal cavity.” Officials in San Francisco, he added, “have discovered contraband hidden in body cavities of people arrested for trespassing, public nuisance and shoplifting.”

Justice Breyer wrote that there was very little empirical support for the idea that strip-searches detect contraband that would not have been found had jail officials used less intrusive means, particularly if strip-searches were allowed when officials had a reasonable suspicion that they would find something.

For instance, in a study of 23,000 people admitted to a correctional facility in Orange County, N.Y., using that standard, there was at most one instance of contraband detected that would not otherwise have been found, Judge Breyer wrote.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Breyer’s dissent.

Justice Kennedy said that strict policies deter people entering jails from even trying to smuggle contraband.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. joined all of Justice Kennedy’s majority opinion, and Justice Clarence Thomas joined most of it.

In a concurrence, Chief Justice Roberts, quoting from an earlier decision, said that exceptions to Monday’s ruling were still possible “to ensure that we ‘not embarrass the future.’ ”

Justice Alito wrote that different rules might apply for people arrested but not held with the general population or whose detentions had “not been reviewed by a judicial officer.”

U.S. Supreme Court Rules in Favor of Gender, Racial, and Labor Discrimination in Landmark Class Action Case Against Wal-Mart

Larry Downing/Reuters
Betty Dukes, a plaintiff in the case against Wal-Mart, at the Supreme Court on March 29.

http://www.nytimes.com/2011/06/21/business/21bizcourt.html?_r=1&nl=todaysheadlines&emc=tha2

All,

This vicious and heinously sexist, racist, and anti-labor decision handed down by the most egregiously corporate and reactionary rightwing Supreme Court of the past 100 years is yet another howling public example of just how quickly and brutally this country is actually moving toward fascism. From "Bush v. Gore" which stole the presidential election for George W. Bush in 2000 to the brazenly pro-corporate and thoroughly anti-democratic vote in the infamous "Citizens United" case of 2009 (yet another ideologically driven 5-4 vote for the Scalia-Thomas-Alito-Roberts wing of openly rightwing legal gangsters!), this decision means that there is now absolutely NO LEGAL RECOURSE WHATSOEVER left for anyone from the poor, working, and middle class (and this goes especially for all people of color and women generally) to receive even a modicum of real justice against blatant sexual, racial, and labor discrimination and exploitation in the U. S. legal system. NONE! Revolution, anyone?...

Kofi


Justices Rule for Wal-Mart in Class-Action Bias Case
By ADAM LIPTAK
Published: June 20, 2011
New York Times

WASHINGTON — The Supreme Court on Monday threw out an enormous employment discrimination class-action suit against Wal-Mart that had sought billions of dollars on behalf of as many as 1.5 million female workers.

A Death Blow to Class Action?

By siding with Wal-Mart, the Supreme Court has signaled that it wants job bias disputes handled in the workplace, not the courts.

The suit claimed that Wal-Mart’s policies and practices had led to countless discriminatory decisions over pay and promotions.

The court divided 5 to 4 along ideological lines on the basic question in the case — whether the suit satisfied a requirement of the class-action rules that “there are questions of law or fact common to the class” of female employees. The court’s five more conservative justices said no, shutting down the suit and limiting the ability of other plaintiffs to band together in large class actions.

The court was unanimous, however, in saying that the plaintiffs’ lawyers had improperly sued under a part of the class-action rules that was not primarily concerned with monetary claims.

Business groups welcomed the decision, and labor and consumer groups strongly criticized it. But all agreed it was momentous.

“This is without a doubt the most important class-action case in more than a decade,” said Robin S. Conrad, a lawyer with the litigation unit of the United States Chamber of Commerce, the business advocacy group.

The court did not decide whether Wal-Mart had, in fact, discriminated against the women, only that they could not proceed as a class. The court’s decision on that issue will almost certainly affect all sorts of other class-action suits, including ones brought by investors and consumers, because it tightened the definition of what constituted a common issue for a class action and said that judges must often consider the merits of plaintiffs’ claims in deciding whether they may proceed as a class.

“You will have people invoking the decision in lots of different cases,” said Brian T. Fitzpatrick, a law professor at Vanderbilt University specializing in class-action law. “The Supreme Court has said that it’s O.K. to look at the merits of the lawsuit to decide whether to allow it to go forward at the earliest possible moment.”

Justice Antonin Scalia, writing for the majority, said the women suing Wal-Mart could not show that they would receive “a common answer to the crucial question, why was I disfavored?” He noted that the company, the nation’s largest private employer, operated some 3,400 stores, had an expressed policy forbidding discrimination and granted local managers substantial discretion.

“On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action,” Justice Scalia wrote. “It is a policy against having uniform employment practices.”

The case involved “literally millions of employment decisions,” Justice Scalia wrote, and the plaintiffs were required to point to “some glue holding the alleged reasons for all those decisions together.”

The plaintiffs sought to make that case with testimony from William T. Bielby, a sociologist specializing in social framework analysis.

Professor Bielby told a lower court that he had collected general “scientific evidence about gender bias, stereotypes and the structure and dynamics of gender inequality in organizations.” He said he also had reviewed extensive litigation materials gathered by the lawyers in the case.

He concluded that Wal-Mart’s culture might foster pay and other disparities through a centralized personnel policy that allowed for subjective decisions by local managers. Such practices, he argued, allowed stereotypes to sway personnel choices, making “decisions about compensation and promotion vulnerable to gender bias.”

Justice Scalia rejected the testimony, which he called crucial to the plaintiffs’ case.

“It is worlds away,” he wrote, “from ‘significant proof’ that Wal-Mart ‘operated under a general policy of discrimination.’ ”

Nor was Justice Scalia impressed with the anecdotal and statistical evidence offered.

One of the plaintiffs named in the suit, Christine Kwapnoski, had testified, for instance, that a male manager yelled at female employees but not male ones, and had instructed her to “doll up.” Justice Scalia said that scattered anecdotes — “about 1 for every 12,500 class members,” he wrote — were insignificant.

He added that statistics showing pay and promotion gaps between male and female workers were insufficient to show common issues among the plaintiffs, because discrimination was not the only possible explanation. “Some managers will claim that the availability of women, or qualified women, or interested women, in their stores’ area does not mirror the national or regional statistics,” Justice Scalia wrote. “And almost all of them will claim to have been applying some sex-neutral, performance-based criteria — whose nature and effects will differ from store to store.” Joseph M. Sellers, a lawyer for the plaintiffs, said the majority had “reversed about 40 years of jurisprudence that has in the past allowed for companywide cases to be brought challenging common practices that have a disparate effect, that have adversely affected women and other workers.”

A lawyer for Wal-Mart, Theodore J. Boutrous Jr., said the decision was “an extremely important victory not just for Wal-Mart but for all companies who do business in the United States, large and small, and their employees, too.”

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined Justice Scalia’s majority opinion on the broader point. But the court unanimously rejected the plaintiffs’ effort to proceed under a part of the class-action rules concerned mainly with court declarations and orders as opposed to money, one that did not require notice to the class or provide the ability to opt out of it.

Justice Ruth Bader Ginsburg, joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, dissented in part. Justice Ginsburg said the court had gone too far in its broader ruling in the case, Wal-Mart Stores v. Dukes, No. 10-277.

She would have allowed the plaintiffs to try to make their case under another part of the class-action rules. “The court, however, disqualifies the class at the starting gate” by ruling that there are no common issues, she wrote.

She added that both the statistics presented by the plaintiffs and their individual accounts were evidence that “gender bias suffused Wal-Mart’s corporate culture.” She said, for instance, that women filled 70 percent of the hourly jobs but only 33 percent of management positions and that “senior management often refer to female associates as ‘little Janie Qs.’ ”

“The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects,” she wrote. “Managers, like all humankind, may be prey to biases of which they are unaware.”

Stephanie Clifford contributed reporting.

The New York Times Attacks the Supreme Court's Anti-Democratic Decision to Allow Corporations Control Over American Politics

http://www.nytimes.com/2010/01/22/opinion/22fri1.html?em

All,

The New York Times excoriating editorial take on the disgraceful Supreme Court sellout of the American people and the political system to super wealthy corporations...

Kofi


January 22, 2010

EDITORIAL

The Court’s Blow to Democracy

New York Times

With a single, disastrous 5-to-4 ruling, the Supreme Court has thrust politics back to the robber-baron era of the 19th century. Disingenuously waving the flag of the First Amendment, the court’s conservative majority has paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding.

Congress must act immediately to limit the damage of this radical decision, which strikes at the heart of democracy.

As a result of Thursday’s ruling, corporations have been unleashed from the longstanding ban against their spending directly on political campaigns and will be free to spend as much money as they want to elect and defeat candidates. If a member of Congress tries to stand up to a wealthy special interest, its lobbyists can credibly threaten: We’ll spend whatever it takes to defeat you.

The ruling in Citizens United v. Federal Election Commission radically reverses well-established law and erodes a wall that has stood for a century between corporations and electoral politics. (The ruling also frees up labor unions to spend, though they have far less money at their disposal.)

The founders of this nation warned about the dangers of corporate influence. The Constitution they wrote mentions many things and assigns them rights and protections — the people, militias, the press, religions. But it does not mention corporations.

In 1907, as corporations reached new heights of wealth and power, Congress made its views of the relationship between corporations and campaigning clear: It banned them from contributing to candidates. At midcentury, it enacted the broader ban on spending that was repeatedly reaffirmed over the decades until it was struck down on Thursday.

This issue should never have been before the court. The justices overreached and seized on a case involving a narrower, technical question involving the broadcast of a movie that attacked Hillary Rodham Clinton during the 2008 campaign. The court elevated that case to a forum for striking down the entire ban on corporate spending and then rushed the process of hearing the case at breakneck speed. It gave lawyers a month to prepare briefs on an issue of enormous complexity, and it scheduled arguments during its vacation.

Chief Justice John Roberts Jr., no doubt aware of how sharply these actions clash with his confirmation-time vow to be judicially modest and simply “call balls and strikes,” wrote a separate opinion trying to excuse the shameless judicial overreaching.

The majority is deeply wrong on the law. Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights. It is an odd claim since companies are creations of the state that exist to make money. They are given special privileges, including different tax rates, to do just that. It was a fundamental misreading of the Constitution to say that these artificial legal constructs have the same right to spend money on politics as ordinary Americans have to speak out in support of a candidate.

The majority also makes the nonsensical claim that, unlike campaign contributions, which are still prohibited, independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” If Wall Street bankers told members of Congress that they would spend millions of dollars to defeat anyone who opposed their bailout, and then did so, it would certainly look corrupt.

After the court heard the case, Senator John McCain told reporters that he was troubled by the “extreme naïveté” some of the justices showed about the role of special-interest money in Congressional lawmaking.

In dissent, Justice John Paul Stevens warned that the ruling not only threatens democracy but “will, I fear, do damage to this institution.” History is, indeed, likely to look harshly not only on the decision but the court that delivered it. The Citizens United ruling is likely to be viewed as a shameful bookend to Bush v. Gore. With one 5-to-4 decision, the court’s conservative majority stopped valid votes from being counted to ensure the election of a conservative president. Now a similar conservative majority has distorted the political system to ensure that Republican candidates will be at an enormous advantage in future elections.

Congress and members of the public who care about fair elections and clean government need to mobilize right away, a cause President Obama has said he would join. Congress should repair the presidential public finance system and create another one for Congressional elections to help ordinary Americans contribute to campaigns. It should also enact a law requiring publicly traded corporations to get the approval of their shareholders before spending on political campaigns.

These would be important steps, but they would not be enough. The real solution lies in getting the court’s ruling overturned. The four dissenters made an eloquent case for why the decision was wrong on the law and dangerous. With one more vote, they could rescue democracy.


Copyright 2010 The New York Times Company