I don’t give a damn what the Supremes have said about “civic religion”

And, I believe the federal judge who refused to grant David and Shannon Croft a preimilanry injunction for their children to stop reciting the new ”under God” Texas Pledge of Allegiance got it wrong in this case. Nor do I agree with Texas AG Greg Abbott’s sophisms.

First, in the case of “voluntary” prayer in schools vs. a moment of silence, SCOTUS has found that, by the situation in which it takes place, to be inherently coercive, even if officially ‘voluntary.”

Second, despite the sneering denial of Justice Antonin Scalia, so-called “civil religion” is religious. If it weren’t, we wouldn’t give it the label of “civil religion.”

Third, the noble (albeit Deistic, not Christian) sentiments of the Declaration of Independence, aren’t the “supreme law of the land,” Mr. Texas Attorney General. The U.S. Constitution, which nowhere uses the word “god,” is.

Fourth, I believe the empirical exemplars Abbott cites of House and Senate chaplains are also unconstitutional. (Bill of Rights father James Madison had concerns about them more than 200 years ago, by the way.)

Abbott even tries to find liberal support from the late Justice William Brennan:

Even Justice William Brennan — by no means one of the high court’s most conservative members — admitted in the 1963 case School District of Abington Township v. Schempp that "the reference to divinity in the revised pledge of allegiance ... may merely recognize the historical fact that our nation was believed to have been founded ‘under God.’”

Well, Brennan was also wrong, in this case, wrong in his analysis of the 1954-revised Pledge. The “under God” was inserted as part of the McCarthyist Second Red Scare, which of course saw all communists as godless. (Strange that Christian Red-hunters never read the second chapter of Acts to see Christian communists in action.)

Abbott then gets full of BS:

Neutrality is the aim. The First Amendment does not permit government to endorse religion, but neither can it exhibit hostility toward religion. It's a delicate balance, to be sure, but including the words “under God” in the Texas Pledge successfully and constitutionally walks that line.

If neutrality really were the option, state Rep. Debbie Riddle never would have proposed this change in the state Pledge, and schools would go back to the pre-1954 U.S. Pledge.

When Religious Right nutbars got upset about a Hindu prayer for Congress in the U.S. Capitol, we clearly saw that for them, “neutrality” means “Christian-only neutrality,” with an occasional “Judeo-“ appendage as a threadbare fig leaf.

Finally, although this is just a preliminary injunction, previous Supreme Court Pledge-loser Michael Newdow is right that the Crofts don’t have a chance; since Newdow’s time, the addition of Alito and Roberts to SCOTUS guarantees that.

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Stare decisis crisis

Liars: During their Senate hearings, John Roberts and Samuel Alito portrayed themselves as committed to the principle of stare decisis. Now we know for certain, they were as dishonest as the all-time presidential prevaricator who nominated them.

Disturbingly, John Roberts's and Samuel Alito's actions on the Court now speak much louder than their words to Congress. During the past year, Roberts and Alito have repeatedly abandoned the principle of stare decisis, and they have done so in a particularly insidious manner. In a series of very important decisions, they have cynically pretended to honor precedent while actually jettisoning those precedents one after another.

In the latest ruling from the Supremes, Parents Involved in Community Schools v. Seattle School District, Chief Justice Roberts:

...held that the consideration of race by school districts in assigning students to public schools in order to promote racial diversity violates the Equal Protection Clause, even though the Court had unanimously declared more than thirty-five years ago that such a policy "is within the broad discretionary authority of school authorities."

As Justice Breyer rightly asked in dissent, "What has happened to stare decisis?" Breyer correctly observed that Roberts had distorted the Court's precedents, "written out of the law" a host of Supreme Court decisions, and disingenuously reversed the course of constitutional law. Whereas Brown v. Board of Education had held that government could not constitutionally assign black and white students to different schools in order to segregate them, Roberts had the audacity to cite Brown for the extraordinary proposition that government cannot constitutionally assign black and white students to the same school in order to integrate them.

John Roberts and Samuel Alito billed themselves as legal craftsmen who would be guided not by rank ideology, but by a respect for the rule of law. They have now proved otherwise.

CNN senior legal correspondent Jeffery Toobin reported:

Stephen Breyer, you know, who is kind of the Mr. Congeniality of the Court, was so angry, his voice was practically breaking as he read his dissenting opinion. And this isn't really just about whether school boards can consider race. This is about whether affirmative action can exist at all, whether the use of race is permissible.

It was just 2003 when Justice O'Connor wrote her famous opinion in the University of Michigan case saying, yes, race can be considered.... But today's decision may be the beginning of the end of that.

Toobin went on to say that Breyer is "suggesting that it's because of Roberts and Alito. When Stephen Breyer said that -- which is an unusually personal attack -- you could see the chief's justice's jaw muscles starting to vibrate a little. Justice Alito, who's a very kind of low key presence on the Court, sort of turned across the bench and looked at Breyer as he said that."

That's something justices don't say about each other very often. But this is the end of a term where the conservative majority reversed or cut back on a lot of precedents that the court thought were fairly stable. And Breyer was pissed.

And rightly so. As Breyer said: "Rarely in the history of the law have so few undone so much so quickly."

In a separate report, Toobin observed:

Chief Justice John Roberts saying that the students who didn't get -- the white students who didn't get the school of their choice in Louisville and Seattle were equivalent to the black students in Brown v. Board of Education who were denied access to integrated schools in Topeka, Kansas. [Justice] Stephen Breyer responding, "You have got to be kidding me, that the efforts in good faith of these schools in Louisville and Seattle to integrate their schools, to make sure that there's diversity, how dare you compare that to the discrimination of Jim Crow?"

What was all that Repub talk about impeaching activist judges? Perhaps Dems should revisit that idea. Bonus points if the prospect causes Mrs. Alito to pucker and cry indubitably on cue for the camera.

I agree with Corpus Juris' earlier remarks:

We have endured five really, really bad Supreme Court decisions, with the worst coming today. All of them pissing on precedent. So much for stare decisis. Decisions so bad that you are left wanting to ring the necks of Democratic Senators for not filibustering Alito's candidacy...

Yes, indeed.

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Mitch, Money and Manipulating Elections

You will be stunned to learn that Senate Minority Leader Mitch McConnell is doing the Snoopy Happy Dance over the decision by the Bush Judicial Commission (formerly known as the Supreme Court) to overturn the futile attempt by the McCain-Feingold Act to remove the pernicious and destructive influence of corporate money from U.S. elections.

Here's what the Louisville Courier-Journal said this morning:

U.S. Senate Republican Leader Mitch McConnell made the following statement Monday regarding the Supreme Court's decision in the case of Wisconsin Right to Life v. Federal Election Commission affirming the constitutionally protected right for grassroots lobbying groups to engage in electioneering communications in federal elections:

"Prior to this ruling, citizens were allowed to speak their minds except for just before an election - this ruling corrects that obstacle to free speech. This decision is a victory for free speech and confirmation that grassroots advocacy organizations have the same free speech rights as all Americans.

This is a step toward restoring the rights of citizens of every political affiliation to vigorously engage in political debate, whether the government agrees with them or not.

"Americans have a constitutionally protected right to hold their elected representatives accountable and, I hope, with this important decision, we can begin to undo the stranglehold that campaign finance legislation has placed on political debate."

Background

Wisconsin Right To Life (WRTL) challenged a provision that prevents organizations and corporations from mentioning candidates for federal office during the "blackout" period mandated by Bipartisan Campaign Reform Act (BCRA). WRTL and its supporters contend that the law is unconstitutional as applied to them as it outlaws advocacy on legislative issues during election season.

In an Amicus brief filed with the Court in the case in Wisconsin Right to Life v. Federal Election Commission, McConnell wrote:

"This case presents the exceptionally important question whether BCRA's restrictions on electioneering communications can be constitutionally applied to grassroots lobbying ads that do not serve an electioneering purpose. … The government has not identified a compelling interest sufficient to justify the imposition of BCRA's restrictions on grass-roots lobbying ads during the weeks immediately preceding an election, when constituents are most receptive to political ads."

Leader McConnell has been a defender of free speech rights, particularly as they relate to political debate. His beliefs on the First Amendment led him to challenge the constitutionality of the BCRA following its enactment.

Let's get a couple of things straight. This is NOT, repeat NOT, a free speech case. This is not a victory for the First Amendment. This is a catastrophe for ordinary Americans trying to make their voices heard in election campaigns.

And Mitch McConnell is about as far as anyone can get from being a defender of free speech rights. He is a defender of the ability of corporations to turn American workers into slaves and American voters into sheep.

I once had a conversation with a charming, intelligent, eloquent Libertarian. A real one, not a fake one like Newt Gingrich.

A self-made millionaire, he argued passionately for not just eliminating all limits on campaign contributions, but for establishing "one dollar, one vote." The more money you have, the more votes you get to cast for the candidate of your choice.

Granted, that system would probably not produce results much different from what we get now, but it's hardly what the Founders had in mind.

It is, however, precisely what Mitch McConnell has in mind.

He who has the gold makes the rules.

In case you forgot, Mitch is up for re-election next year, and he's more vulnerable than he's ever been. If you don't agree with Mitch that money equals speech, help defeat him at Ditch Mitch.

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Supreme Court Reverses Two Death Sentences

The United States Supreme Court has reversed and remanded a death penalty conviction in the case of ABDUL-KABIR fka COLE v. QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Case Number No. 05–11284.

Held: Because there is a reasonable likelihood that the state trial court’s instructions prevented jurors from giving meaningful consideration to constitutionally relevant mitigating evidence, the CCA’s merits adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by [this] Court,” 28 U. S. C. §2254(d)(1), and thereby warranted federal habeas relief. Pp. 10–30.

The judge's capital punishment instructions limited the jury's consideration to two questions: whether the defendant’s conduct was committed deliberately and with the reasonable expectation it would result in his victim’s death and whether it was probable he would commit future violent acts constituting a continuing threat to society. Justice Stephens writing for the 5/4 majority noted that the Court had

long recognized that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty on a particular individual, notwithstanding the severity of his crime or his potential to commit similar offenses in the future. . . . Because this would not satisfy Penry I’s requirement that the evidence be permitted its mitigating force beyond the special issues’ scope, it would have followed that those issues failed to provide the jury with a vehicle for expressing its “reasoned moral response” to (the defendant’s) mitigating evidence.

The instructions were simply too limiting.

Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, and in which Alito, J., joined as to Part I.

The court also reversed and remanded the death penalty conviction in the case of SMITH v. TEXAS, No. 05–11304 on similar but slightly different grounds. In that case

Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas, JJ., joined.

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