The Supreme Court Is Not Supposed to Have This Much Power

And Congress should claw it back.

Only after Republicans lost control of Congress in 1875 was the Court able to enforce its contrary interpretations of the Constitution—to devastating effect. In the Civil Rights Cases of 1883 and related cases, the Court refused to enforce federal civil-rights laws on the theory that the newly enacted Thirteenth and Fourteenth Amendments gave Congress no power against private racial violence or discrimination in public accommodations. For the next half century—as part of what the historian W. E. B. Du Bois called the “counter-revolution of property”—the Court condemned the Reconstruction Congress as a group of unprincipled fanatics. And it invented new doctrines that authorized the Court to invalidate federal legislation that it thought went too far toward interfering with white business interests. It was during this period that judicial supremacy took hold as a dominant ideology in the United States.


This bears repeating: Judicial supremacy is an institutional arrangement brought to cultural ascendancy by white people who wanted to undo Reconstruction and the rise of organized labor that had followed. And that makes sense, as judicial supremacy can harness the power of an entrenched minority and use that power to undermine the more democratic legislative branch. Decades after the Court in Marbury v. Madison first anticipated that it might disagree with Congress about a federal law’s constitutionality, the justices finally convinced skeptics of the need for this authority by disempowering Congress and unraveling its legislative efforts to establish political equality.


Paul Finkelman: America’s ‘Great Chief Justice’ was an unrepentant slaveholder In the nearly 150 years since Reconstruction, the thrust of judicial supremacy has continued to be revanchist. Through the 21st century, the justices overwhelmingly have exercised their claim of supremacy over Congress to insulate the wealthy and powerful from federal labor laws, federal voting laws, federal civil-rights laws, federal campaign-finance laws, and federal health-care laws. Decisions such as Citizens United and Shelby County are typical examples of how the Court has overruled Congress to make it harder for ordinary people to participate in American democracy on equal terms. But their damage goes beyond even that: Because the limits of our constitutional imagination can extend no further than the opinions of those who happen to sit on the Court, judicial supremacy has also impoverished what we think is possible through democratic politics—and through organizing for political change at the national level.


In the nearly 150 years since Reconstruction, the thrust of judicial supremacy has continued to be revanchist. Through the 21st century, the justices overwhelmingly have exercised their claim of supremacy over Congress to insulate the wealthy and powerful from federal labor laws, federal voting laws, federal civil-rights laws, federal campaign-finance laws, and federal health-care laws. Decisions such as Citizens United and Shelby County are typical examples of how the Court has overruled Congress to make it harder for ordinary people to participate in American democracy on equal terms. But their damage goes beyond even that: Because the limits of our constitutional imagination can extend no further than the opinions of those who happen to sit on the Court, judicial supremacy has also impoverished what we think is possible through democratic politics—and through organizing for political change at the national level.

Rather than look to the Court to glimpse some fundamental truth from scant constitutional text, Americans ought to demand that their elected representatives engage in the hard work of national lawmaking. Congress must act, even if it means overriding the interpretations of the Court and reshaping its jurisdiction. Encouragingly, members of the House have recently passed bills to enforce their understanding of what federal laws our nation demands and our Constitution permits—including reproductive freedom and voting rights. But the bills have all stalled in the Senate for two reasons that remain within its control. One, the filibuster, will be abolished as soon as 50 senators recognize that a permanently incapacitated Senate is far more destructive than an active Senate that But the other obstacle may be more pernicious: a fear among legislators that there is no point to legislating if the Court will simply invalidate anything Congress achieves.might one day be controlled by an opposing party.

Yet as the Reconstruction Congress recognized, everything the Court has the power to do comes from federal statutes passed by Congress—statutes that a majority of Congress always has the power to amend. Conflicts over constitutional interpretation are not really over who has the best understanding of words inscribed in an old document. They are about who—or which actors in our system of national government—can deliver on a particular, and inherently contested, meaning in the context of our current times. It is a question of political leadership, not legalism.
There is nothing unconstitutional about Congress reasserting its authority to define the nation’s highest law. The experience of Reconstruction brings into view this firmly grounded practice. In fact, a surviving remnant of the Reconstruction Congress’s work—today codified in 42 U.S.C. § 1983—has underwritten some of the most famous cases in modern constitutional law. In Section 1983, Congress instructed federal courts to stop state or local officials from depriving anyone of their “rights, privileges, or immunities secured by the Constitution.” Section 1983 is what Oliver Brown invoked when he challenged Kansas’s segregation laws in Brown v. Board of Education of Topeka, what “Jane Roe” invoked to challenge Texas’s abortion law in Roe v. Wade, and what James Obergefell invoked when he challenged Ohio’s same-sex-marriage ban in Obergefell v. Hodges. While these landmark cases invalidated state laws, the justices were following, not undermining, Congress’s orders. The decisions overruling state interpretations of the Constitution don’t represent judicial supremacy, but rather Congress’s ability to make and enforce national constitutional commitments.

It’s June again—that time of year when Americans wake up each morning and wait for the Supreme Court to resolve our deepest political disagreements. To decide what the Constitution says about our bodily autonomy, our power to avert climate change, and our ability to protect children from guns, the nation turns not to members of Congress—elected by us—but to five oracles in robes.
This annual observance of judicial supremacy—the idea that the Supreme Court has the final say about what our Constitution allows—is an odd affliction for a nation that will close the month ready to celebrate our independence from an unelected monarch. From one perspective, our acceptance of this supremacy reflects a sense that our political system is simply too broken to address the most urgent questions that we confront. But it would be a mistake to see judicial supremacy as a mere symptom of our politics and not a cause.


Contrary to what many people have come to believe, judicial supremacy is not in the Constitution, and does not date from the founding era. It took hold of American politics only after the Civil War, when the Court overruled Congress’s judgment that the Constitution demanded civil-rights and voting laws. The Court has spent the 150 years since sapping our national representatives of the power to issue national rules. These judicial decisions have destroyed guardrails that national majorities deemed vital to a functional, multiracial democracy—including protecting the right to vote and curbing the influence of money in politics. Even worse, the Court’s assertion of the power to invalidate federal laws has stripped Americans of the expectation, once widely shared, that the most important interpretations of the Constitution are expressed not by judicial decree but by the participation of “We, the People,” in enacting national legislation.


In the decades before the Civil War, when national parties violently contested the constitutionality of slavery west of the Mississippi, the center of gravity was Congress. As the historian James Oakes recounts, when a border-state senator proposed asking the Supreme Court to decide the issue in 1848, other senators ridiculed his idea as implausible. “The Constitution was interpreted as variously as the Bible,” Senator John P. Hale of New Hampshire responded. White southerners believed “the Constitution carries slavery with it,” while northerners construed the Constitution “to secure freedom.” As Hale and his contemporaries appreciated, resolving such a fundamental national disagreement could never turn on a court’s answer to which interpretation was more correct. Rather, the winning interpretation would depend on whether adherents could build sufficient political majorities to control the national government. The Supreme Court did attempt to decide the question in its infamous 1857 Dred Scott decision—interpreting the Constitution to hold that the federal government lacked the power to abolish slavery anywhere in the United States. But rather than accept this novel assertion of judicial supremacy over Congress, the Republican Party responded with defiance. Indeed, Abraham Lincoln successfully ran for president on a platform of repudiating the Court with national legislation. In his inaugural address, he remarked that “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” then “the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

Through the Civil War and the Reconstruction era that followed, the politically dominant Republicans in Congress enacted legislation to build a multiracial democracy in the United States for the first time. Some of these laws boldly overruled the Court, including statutes in 1862 and 1866 that began the abolition of slavery and recognized the citizenship of Black people. Others prevented the Court from retaliating against Congress’s interpretation of the Constitution, such as legislation stripping the Court of jurisdiction over certain matters. Still others enlisted the Court in the project of enforcing Congress’s constitutional judgments. Acts in 1870 and 1871 instructed federal courts to enforce the Thirteenth, Fourteenth, and Fifteenth Amendments against recalcitrant state officials, while acts in 1870 and 1875 tasked judges with banning voting restrictions, lynch mobs, and racial discrimination.

Congressional checks on the Supreme Court are also very different from the calls for “nullification” by slaveholders before the Civil War, their descendants during the civil-rights movement, and Texas legislators today. The Civil War itself resolved that the representatives of states must enforce their constitutional interpretations not by defying the government created by the Constitution but by participating in it. For the past two centuries, Congress has been the branch of the federal government where our democracy’s pursuit of equal justice under law has most often been realized. The question is not whether some commitments—abolition, reproductive freedom, racial equality—are worth making supreme and constitutive of a national American identity. Rather, the question is who gets to decide the content of those commitments for all Americans: the 50 states, a five-justice majority, or our national legislature.


If the Court is today eviscerating those very constitutional commitments through its case law, Congress should enact or amend federal statutes to advance a different understanding of a nation built on democratic justice. It should reshape the Court’s ability to intervene in these disputes, including by restricting the Court’s authority to set aside federal legislation. And it should conscript the Court in enforcing federal commitments when resistant state officials brazenly declare that the national government has no jurisdiction to protect Americans from their parochial rule.
The thing stopping Congress from reversing each wrongheaded decision the Court issues this month therefore isn’t the Constitution. It’s our failure to demand more from our elected representatives.


The promise of a genuinely multiracial democracy will fade if Americans are unwilling to embrace structural reforms that can make our policies and our politics more responsive to majority rule. How Congress allocates the power to interpret the Constitution should be at the heart of those reforms. We simply cannot build a better politics if we don’t reclaim the authority of Congress to resolve our most fundamental disagreements. Rather than allow a handful of us to define the Constitution’s meaning in a mystical ritual each June, the rest of us should define it with the hard, messy work of American politics year-round.

Opinion: Trump’s presidency reaches a Nixon moment, GOP must put America first Donald Trump and the D.C.swamp creatures are doing real damage to America

The enduring greatness of America is proven by our country’s endurance of dreadful presidents, from a drunken Andrew Johnson, to Warren Harding presiding over Cabinet bribes, to Richard Nixon talking to portraits of his predecessors.

None as dreadful, or as dreadfully dangerous, as the 45th President, Donald J. Trump.

This week, Trump attorney Michael Cohen pleaded guilty to illegally funneling hush money to porn star Stormy DanScreen Shot 2018-08-23 at 9.51.16 PMiels and Playboy model Karen McDougal to influence the election, while former campaign adviser Paul Manafort was found guilty on eight counts of financial fraud.

RELATED: Manafort juror says 1 holdout prevented 18-count conviction

The cesspool of Donald Trump’s government was again on full display early Thursday morning with Trump denouncing his own Attorney General for recusing himself in the Russia investigation. “What kind of man is this?” he asked.

Trump decried “flippers,” like Cohen — participants in criminal behavior who decide to cooperate with prosecutors, and suggested deals like his ought to be made illegal.

Rep. Duncan Hunter, R-Calif., the second House member to endorse Trump in 2016, appeared in court to face charges he and spouse took $250,000 in campaign funds to support a lavish personal lifestyle.

The first Trump endorser, Rep. Chris Collins, R-New York, has already been indicted on charges of tipping off his son to dump a drug stock after learning that the company’s wonder drug had failed a test. He made the call from the White House lawn.

What proverb sums up the situation? A fish rots from the head down.

Or the Turkish variation: The fish stinks first from the head.

A generation ago, we had principled Republicans who put country first.

READ MORE: https://www.sfgate.com/local/politics/article/Trump-nixon-manafort-cohen-flynn-impeach-opinion-13177648.php

Nia Wilson Had Big Plans. Then She Was Killed in a BART Station.

24stabbing5Nia Wilson was the youngest of six sisters and two brothers, but she knew how to stand out. She jumped at the chance to help others, one of her sisters said, offering pep talks to her sisters when they were down and performing the Heimlich maneuver on her aunt as she was choking at a recent family party. She loved to look pretty, even if it meant holding up everyone else until she picked out the perfect outfit for a late-night run to the grocery store.

At 18, Nia still had the bulk of her life ahead her and she had big plans — joining the Army or becoming a paramedic, or maybe a music producer would see her rap videos on YouTube and offer a record deal. But on Sunday night, Nia was attacked and killed by a man with a knife after stepping off a train with two of her sisters at an Oakland, Calif., transit station. One of her sisters, Lahtifa Wilson, 26, was also stabbed. She was taken to a hospital but later released. Three days after Nia’s death, her sister Malika Harris said that her family was struggling to process what had happened and to accept that she was gone. In any other situation, her sister said, they would be turning to Nia for comfort.

“She was always there and motivating you and telling you to stay positive,” Ms. Harris, who was not with her on the train, said in an interview on Wednesday.

As her family finalized funeral plans for Nia on Wednesday, the man accused of stabbing her, John Lee Cowell, was formally charged with murder and attempted murder. Mr. Cowell, 27, made his first appearance in an Oakland court at an arraignment hearing on Wednesday afternoon. He did not enter a plea.

Nia’s father, Ansar Muhammad, went to the courthouse to attend the hearing.

“My daughter was everything to me,” Mr. Muhammad told reporters outside a courtroom. “She was so beautiful, so inspirational, had dreams. I’m supposed to be planning her graduation, not her funeral.”

The Bay Area Rapid Transit police arrested Mr. Cowell, who they said was homeless and had a lengthy criminal record, on Monday evening after a nearly 24-hour, citywide manhunt. His family released a statement to a local TV station that said Mr. Cowell had been diagnosed with bipolar disorder and schizophrenia, and had not received recent proper mental health treatment.

Ms. Harris said she believed that the fatal attack on Nia, who was black, should be classified as a hate crime. “They are trying to say that he was sick and crazy,” she said. “It was an act of racism.”

After the arrest on Monday of Mr. Cowell, who is white, the police said that they were still searching for a motive and had not ruled out race as a factor.

SOURCE https://www.nytimes.com/2018/07/25/us/nia-wilson-bart-stabbing

Two-thirds of people banned from BART are black — and agency isn’t asking why

Two-thirds of the people BART banished from its property last year were black, and a committee the agency set up to monitor potential civil rights violations in the unique exclusion program isn’t scrutinizing the racial disparity.

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BART banned more people from the system in 2017 than in previous years in an effort to protect riders and employees. Agency officials say the use of these prohibition orders — which last from one month to a year — has paid off.The program, though, is booting black people from trains and stations at far higher rates than others, raising concerns about racial profiling.Of the 315 people barred from the Bay Area’s backbone transit system last year, 209, or 66 percent, were identified by police officers as black, according to BART data. Fifteen percent were identified as white and 12.5 percent as Latino.

A 2015 BART survey of weekday customers, the latest available, found that 12 percent were black, 44 percent were white, 23 percent were Asian or Pacific Islander, and 18 percent were Hispanic.

ESPN Is Terrified of Jemele Hill’s Honesty on Racism

EYESI’ve watched the N.F.L. on ESPN for more than 20 years in part because I grew up with the kind of father who pretty much refused to talk to me until I showed interest in the game. One Sunday when I was 12, I parked myself on the couch next to him, and because we were watching Brett Favre, I asked him what an interception was. “When you throw it to the other team,” Dad said. That quarterback would go on to set the N.F.L. record for passing interceptions.

On Monday, ESPN issued a two-week suspension to Jemele Hill, a tough, opinionated black woman who anchors “SportsCenter,” because she violated the network’s social-media guidelines. The night before, the Dallas Cowboys’ owner, Jerry Jones, had said that if any of his players were “disrespectful” of the flag, they wouldn’t play. Hill noted on Twitter that this puts his black players in a bind: “If they don’t kneel, some will see them as sellouts.”

Then she remarked that Cowboys fans could boycott the team’s sponsors if they were dissatisfied with Jones’s position, instead of relying on Cowboys players to protest. Hill clarified that she wasn’t calling for Cowboys fans to boycott the N.F.L., but rather that “an unfair burden” has been put on players. (This wasn’t the first time controversy had arisen about one of Hill’s tweets; last month, she called President Trump a white supremacist.)ESPN’s decision to suspend Hill, whom it pays to express her opinions, suggests that the network might be scared of boycotts and that the Cowboys’ sponsors, as well as the network’s own, are more important than supporting the idea that black people might be people.

Let’s be clear: The N.F.L. players who refuse to stand for the anthem aren’t protesting the flag or the anthem; they’re objecting to the obscenely high number of unarmed black people brutalized and killed by police officers in the United States. When Jerry Jones says that players can’t be “disrespectful,” what he’s really saying is that black people are not supposed to complain that we are routinely killed by the police, even when unarmed. We are supposed to embrace the idea that our lives should not be valued, because floating the opinion that maybe we shouldn’t be killed for no reason might offend advertisers.

It’s also hard to reconcile ESPN’s decision to suspend Jemele Hill for not quite calling for a boycott with the outspokenness that ESPN prizes in anchors who are not black women, who say things much more offensive and only get a slap on the wrist.

Suspending Jemele Hill is the sort of desperate move ESPN undoubtedly hopes might attract more viewers, much like the network’s sudden decision not to allow an Asian-American broadcaster named Robert Lee to call a college-football game last August. ESPN’s subscriber base dropped to 87 million households in September from a high of 100.1 million in 2011, and the network has laid off more than 100 people this year in addition to 300 workers in October 2015.

Immigrants Shouldn’t Have to Be ‘Talented’ to Be Welcome

peopleThe terms of the debate over President Trump’s decision to revoke the Deferred Action for Childhood Arrivals program are familiar, as are the terms of the larger conversation about immigration in this country: On one side are hardworking immigrants; on the other are politicians who wrongly claim that these immigrants harm the economic interests of native-born Americans. As protests broke out across the United States in response to Mr. Trump’s move, reporters and immigrant advocates stressed that the administration’s actions will hurt achievers — people who have graduated from college, people who have bought houses, people who work for high-tech companies.

There is nothing wrong with this story. It’s one that most, if not all, immigrants like to tell about themselves — even if their actual story doesn’t neatly fit the narrative. In fact, as Hannah Arendt pointed out in her essay “We Refugees,” written in 1943 at the height of the 20th century’s refugee crisis, people whose stories fit the narrative least well — the most desperate and the worst-wounded of the immigrants — are especially invested in thinking of themselves as destined for success and, of course, as future loyal citizens.

But something goes awry when this becomes the dominant story told about immigrants in America. This has been happening for a number of years: The good people of America talk about immigrants as hard workers who conscientiously contribute to the economy. (I myself have made it onto a few lists of exemplary immigrant success stories.) In fact, DACA was designed to reward achievement: to qualify for the program, an applicant had to be in school or hold a high school diploma or equivalent, or have been honorably discharged from the armed forces. Those who hadn’t been able or lucky to meet those requirements were apparently deemed unworthy of staying in the country where they had lived since they were children.

When Mr. Trump issued an executive order banning entry by citizens of predominantly Muslim countries, American technology companies responded with a lawsuit in which they stressed that immigrants have founded and run many large tech companies. The revocation of DACA has brought forth similar — and much-quoted — responses from Silicon Valley. When the president threw his support behind a reform plan that would drastically reduce immigration to this country, editorial writers argued against it by pointing out that immigrants benefit the economy.

Former Manhattan ADA Accused of Dealing to Police Former Manhattan ADA Accused of Dealing to Police

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44-year-old David Leung, who served as the assistant district attorney is Manhattan from 1993 to 2003, was busted by an informant on September 27 after sliding the undercover two bags of weed for $200. This sounds more like the explanation for a character being written off of Law & Order than real life. Following the transaction, police searched his vehicle and found seven more bags totaling over eight ounces in his trunk. The irony of Manhattan’s former ADA being arrested for selling weed in the marijuana-arrest capital of the world is sweet chin music to the criminal justice system. What’s even worse is that Leung knew some of the prosecutors when he appeared in court yesterday. How embarrassing.  After his departure from the district attorney’s office, Leung began a private practice and moved to Indiana. He was apparently unable to resist the allure of the fast life on the streets of New York City. Because that’s what all bored guys in their 40s do. Leung has not been indicted, but will return to court on January 22. Until then, he’s free without bail.

[via Gothamist]

Ethics Trouble Not Over for Jesse Jackson Jr.

Jesse Jackson Jr.’s resignation from Congress might end his once-promising political career but it doesn’t mark the end of troubles for the civil rights icon’s son. Just two weeks after voters re-elected him to a ninth full term, Jackson on Wednesday sent his resignation letter to House Speaker John Boehner, citing his ongoing treatment for bipolar disorder and admitting “my share of mistakes” while confirming publicly for the first time that he’s the subject of a federal probe and cooperating with investigators. Federal authorities are reportedly investigating Jackson’s possible misuse of campaign funds and the House Ethics Committee is investigating his dealings with imprisoned ex-Illinois Gov. Rod Blagojevich. It was unclear how the committee would proceed following Jackson’s resignation. The committee could still decide to release a final report on him but it no longer has the power to punish Jackson. Jackson, 47, was never charged with wrongdoing and in his resignation letter wrote, “they are my mistakes and mine alone.” Jackson’s attorneys offered few details of the reported probe into misuse of campaign funds. “Mr. Jackson is cooperating with the investigation. We hope to negotiate a fair resolution of the matter but the process could take several months,” according to a statement from Jackson’s attorneys, including former U.S. Attorney in Chicago Dan Webb. “During that time, we will have no further comment and urge you to give Mr. Jackson the privacy he needs to heal and handle these issues responsibly.” CONTINUE READING