Comments on: Beyond Sotomayor: Progressives And The Courts http://christyhardinsmith.firedoglake.com/2009/08/14/beyond-sotomayor-progressives-and-the-courts/ Dip your toe in the legal waters and change politics as you know it. http://christyhardinsmith.firedoglake.com Sun, 25 Oct 2009 22:06:02 -0500 hourly 1 http://wordpress.org/?v=3.1.2 By: DavidKaib http://christyhardinsmith.firedoglake.com/2009/08/14/beyond-sotomayor-progressives-and-the-courts/#comment-17902 DavidKaib Sat, 15 Aug 2009 17:12:18 +0000 http://christyhardinsmith.firedoglake.com/2009/08/14/beyond-sotomayor-progressives-and-the-courts/#comment-17902 <p>I wasn’t clear about what Nadler said - he in fact acknowledged what you said, that the Congress can overrule statutory decisions of the Court (something that I wish more people would pay more attention to.) And he’s technically correct that only judicial turnover or an amendment can directly overrule a constitutional decision. </p> <p>But the larger point is that the Court is not immune from larger political and social forces, and to be aware of this is to allow a lot more room for popular control. Conservatives haven’t spent the last few decades focused solely on judicial appointments when it comes to the Constitution - they have confidently (see Post and Siegel on Democratic Constitutionalism, <a href="http://www.constitution2020.org/chapters/3_Democratic%20Constitutionalism.pdf" rel="nofollow"><strong>pdf</strong>) advanced their views in Congress, the Executive Branch, the courts, the media, the law schools and in public. </a></p> <p>Several panelists mentioned that the Sotomayor nomination was a missed chance to make the case for progressive constitutionalism - which I think is very true. But an excessive focus on the appointments process (and amendments) distracts from democratic constitutionalism and downplays its possibilities.</p> I wasn’t clear about what Nadler said – he in fact acknowledged what you said, that the Congress can overrule statutory decisions of the Court (something that I wish more people would pay more attention to.) And he’s technically correct that only judicial turnover or an amendment can directly overrule a constitutional decision.

But the larger point is that the Court is not immune from larger political and social forces, and to be aware of this is to allow a lot more room for popular control. Conservatives haven’t spent the last few decades focused solely on judicial appointments when it comes to the Constitution – they have confidently (see Post and Siegel on Democratic Constitutionalism, pdf) advanced their views in Congress, the Executive Branch, the courts, the media, the law schools and in public.

Several panelists mentioned that the Sotomayor nomination was a missed chance to make the case for progressive constitutionalism – which I think is very true. But an excessive focus on the appointments process (and amendments) distracts from democratic constitutionalism and downplays its possibilities.

]]> By: Hugh http://christyhardinsmith.firedoglake.com/2009/08/14/beyond-sotomayor-progressives-and-the-courts/#comment-17816 Hugh Sat, 15 Aug 2009 04:03:06 +0000 http://christyhardinsmith.firedoglake.com/2009/08/14/beyond-sotomayor-progressives-and-the-courts/#comment-17816 <p>I don’t have the ability to listen to these things, but Nadler is wrong for several reasons. First, in Hamdan, the Court ruled against the Bush Administration saying that it needed Congressional input and couldn’t just set up commissions on its own. Now this resulted in the horrendous Military Commissions Act but the point is far from precluding Congressional action the Court more or less mandated it. In cases like Carhart (known by its incendiary title of partial birth abortion), or the Lily Ledbetter case (equal pay), or most recently the Ricci case (reverse discrimination), the Court decided ostensibly all three by parsing what its radical conservatives decided was the Congressional intent. I personally disagreed with all three rulings but as subsequent legislation to rectify what went wrong in Ledbetter’s decision showed, Congressional action can in fact reverse the decisions of a Court even as reactionary as this one. There are only a few cases like Boumediene (habeas corpus as a Constitutional right) and Montejo (6th Amendment access to an attorney) or Osborne (DNA evidence) where this would not hold true. In Boumediene, a real Constitutional issue was raised and this decision (with which I agree) could only be modified by amendment. Montejo and Osborne revolve in part or in whole , respectively, on issues to be decided by the states. So modification or reversal of the Court’s decision would have to take place at the state level, by amendment, or by the Court overturning this opinion. Back when Sandra Day O’Connor was on the Court there were a spate of Commerce Clause cases of this type that sided with the states. But how these cases were decided and how this attack on the Commerce Clause died out reflect exactly what you were saying that the Court is influenced by outside political conditions. Unfortunately with the present Court, there is a tendency to fly in the face of them.</p> <p>Anyway I just wanted to say that Nadler is just very wrong in what he said both in terms of the politics and also in terms of the cases themselves.</p> I don’t have the ability to listen to these things, but Nadler is wrong for several reasons. First, in Hamdan, the Court ruled against the Bush Administration saying that it needed Congressional input and couldn’t just set up commissions on its own. Now this resulted in the horrendous Military Commissions Act but the point is far from precluding Congressional action the Court more or less mandated it. In cases like Carhart (known by its incendiary title of partial birth abortion), or the Lily Ledbetter case (equal pay), or most recently the Ricci case (reverse discrimination), the Court decided ostensibly all three by parsing what its radical conservatives decided was the Congressional intent. I personally disagreed with all three rulings but as subsequent legislation to rectify what went wrong in Ledbetter’s decision showed, Congressional action can in fact reverse the decisions of a Court even as reactionary as this one. There are only a few cases like Boumediene (habeas corpus as a Constitutional right) and Montejo (6th Amendment access to an attorney) or Osborne (DNA evidence) where this would not hold true. In Boumediene, a real Constitutional issue was raised and this decision (with which I agree) could only be modified by amendment. Montejo and Osborne revolve in part or in whole , respectively, on issues to be decided by the states. So modification or reversal of the Court’s decision would have to take place at the state level, by amendment, or by the Court overturning this opinion. Back when Sandra Day O’Connor was on the Court there were a spate of Commerce Clause cases of this type that sided with the states. But how these cases were decided and how this attack on the Commerce Clause died out reflect exactly what you were saying that the Court is influenced by outside political conditions. Unfortunately with the present Court, there is a tendency to fly in the face of them.

Anyway I just wanted to say that Nadler is just very wrong in what he said both in terms of the politics and also in terms of the cases themselves.

]]> By: DavidKaib http://christyhardinsmith.firedoglake.com/2009/08/14/beyond-sotomayor-progressives-and-the-courts/#comment-17800 DavidKaib Sat, 15 Aug 2009 02:41:51 +0000 http://christyhardinsmith.firedoglake.com/2009/08/14/beyond-sotomayor-progressives-and-the-courts/#comment-17800 <p>Great job. </p> <p>I think the most disappointing part of this panel was Nadler saying that when the Court makes a constitutional ruling, the only choices are to wait until you can undo the decision through vacancies or use a constitutional amendment. I wish more people in Congress understood that the Court tends to reflect larger political forces, even aside from the appointments process. It’s true the justices may well not stand for it when challenged <strong>directly</strong> on a particular ruling. But they have generally been influenced by social movements and by the political branches - which means there is a lot more room for popular influence than Nadler suggested.</p> Great job.

I think the most disappointing part of this panel was Nadler saying that when the Court makes a constitutional ruling, the only choices are to wait until you can undo the decision through vacancies or use a constitutional amendment. I wish more people in Congress understood that the Court tends to reflect larger political forces, even aside from the appointments process. It’s true the justices may well not stand for it when challenged directly on a particular ruling. But they have generally been influenced by social movements and by the political branches – which means there is a lot more room for popular influence than Nadler suggested.

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