jeffreymark

BLOGGING THE SUPREME COURT

While the Supreme Court is in session two separate blogs keep us lay folks up to par with the most recent decisions and also provide a conservative commentary. First check the Volokh Conspiracy. They provide an in depth analysis of SC decisions. Law students often rely on the VC to enhance their classroom experience. Then go to Scotusblog. Not only do they give commentary they also link students to case indexes and provide the oral arguments presented in each particular case. Lot's of fun if you're an attorney wannabe.

ET TU YOUR HONOR II

Former FBI employee and contributor to the Counter Terrorism Blog, Jeffrey Imm wants to know if the Supreme Court realizes a war is going on.

I am sending U.S. Supreme Court Justice Anthony Kennedy a framed copy of a photograph of the remains of the World Trade Center West building after the 9/11 attacks with a note "Don't You Know There's A War On?".

The Real Headline: "U.S. Supreme Court Doesn't Think We Are At War with Jihad"

On June 12, 2008, the majority on the Supreme Court ruled in "Boumediene v. Bush," that habeas corpus rights guaranteed to American citizens under the Constitution will be extended to foreign Jihadist enemy combatants currently held at the Guantanamo Bay detention center. Justice Anthony Kennedy wrote for the majority of the Supreme Court stating that "[i]t is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution." (Justice Kennedy Majority Opinion, page 41).

Justice Anthony Kennedy delivered the majority opinion of the Court, in which Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, with Justice Souter providing a concurring opinion. Chief Justice John Roberts and Justice Antonin Scalia both filed dissenting opinions; the other two dissenting judges were Justices Clarence Thomas and Samuel Alito.

In this decision, the Supreme Court majority tells the American people to ignore that, in no time in American history have habeas corpus rights been granted to unlawful foreign enemy combatants, to ignore that during WWII the Supreme Court ruled that unlawful combatant saboteurs could be denied habeas corpus, to ignore that during the Civil War that habeas corpus was suspended for American citizens, to ignore that the Supreme Court ruling seeks to give foreign enemy combatants more rights than illegal aliens. Supreme Court Justice Kennedy ignores the reality that the U.S. Constitution was for American citizens, not foreign enemy combatants during wartime, by arrogantly demanding that "[t]he laws and Constitution are designed to survive, and remain in force, in extraordinary times."(Justice Kennedy Majority Opinion, page 70).
Perhaps Justice Kennedy might actually read the U.S. Constitution. It states that "We the People of the United States...secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." Where does that call for extending such rights of American citizens to enemy foreign combatants during war? Where does Article I, Section. 9. Clause 2 of the Constitution say enemy combatant Jihadists at Guantanamo Bay have a "Get Out of Jail Free" pass from the Constitutional clause that allows the government to suspend habeas corpus when "the public Safety may require it"?

Read more Jeffrey Imm here.

ET TU YOUR HONOR?

Have the Supreme Court justices allowed fear and pandering to steal their principles? One might thinks so after reading Hugh Hewitt's recent analysis of the Supreme Court awarding the privilege of habeas corpus to terrorists.

What is more alarming than the prospect of ignorance on the part of the majority [of justices] is their collective seduction by hard left elites, particularly those in the Academy. Supreme Court justices don’t get out much. When they do it is typically to the nation’s law schools and to judicial and ABA conferences, where they are no doubt surrounded by thousands of elites who have as much experience with the war as the justices, but are perhaps even less well read on the nature of the jihadists’ ideology and tactics. Andrew McCarthy’s brilliant new book, Willful Blindness, A Memoir of the Jihad, recounts how unprepared the American legal system was for the assault by the fanatics when it first crashed into the World trade center in 1993 and how even after 9/11 it could not adjust to cope with the war in which we are engulfed. Obviously the highest rank of our legal elite have not yet come to grip with the nature of the enemy.

THE ON GOING SAGA OF JUDGE ROBERT BORK

The Borking of America may have faded from the American public's memory, but Gary L. McDowell, professor at the Jepson School of Leadership Studies at the University of Richmond, seeks to resurrect the issue declaring:

In this sense, the Bork vote is not just a matter of quaint historical interest, but the first great battle in the contemporary war for the Constitution -- a continuing war that must be won if true self-government is to prevail.

McDowell explains that Bork's ordeal revealed an ideological battle at play over the means of constitutional interpretation with implications for our moral future:

At its deepest level, Mr. Bork's defeat was the result of the very public affirmation by the Senate of a dangerous theory of ideological judging that had been developing for quite some time. It was the idea of a so-called "living" Constitution, one that various scholars have said means there need be "no theoretical gulf between law and morality," and that ordinary judges are empowered to interpret the fundamental law in light of their own "fresh moral insight" in order to effect a judicially mandated "moral evolution" of the nation.

The aim of this new approach to judging that was used to pillory Mr. Bork was not a matter of mere metaphysical speculation. It was the concrete political reality of Roe v. Wade and its judicially created right to abortion -- and behind that, Griswold v. Connecticut and its even more amorphous right to privacy. Mr. Bork's originalism denied the constitutional legitimacy of such contrived decisions and would have left such issues to be resolved by the people in their legislatures.

Thus, his nomination threatened not only all that had been gained by judicial fiat, such as abortion rights, but all that might be gained, such as constitutional protections for same-sex marriages. That was why, to his critics, he had to be stopped at all costs.

Presidential elections do count for more than the old proverbial "it's the economy stupid."
Continue reading here.

SCHUMER SAYS NO MORE STACKING THE SUPREME COURT

Politico reports:

New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.” “We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”

Interpretation-Those rascally Republicans are moving ever so close to overturning our sacred Roe v. Wade.