Tuesday, August 23, 2022

Overall, There's Lots To Respect About America's Supreme Court


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So far in my blogs I’ve found it easy to zero in on what’s ugly and wrong about politics and politicians. 
But doing the lengthy research necessary for today’s blog, I ended up deeply impressed with and proud of the Supreme Court of the United States. In the first few years of the 1800s, men with brilliant minds and common sense began to establish the day to day operations of the Supreme Court. 
Seeking to learn the nitty gritty mechanics of how the Supreme Court of the United States (hereafter using the acronym SCOTUS) operates, I found former William H. Rehnquist’s book: The Supreme Court in a revised and updated, 2002 edition. It contains some “heavy reading” that is necessary due to the solid and detained information presented about those always interesting, and relevant nitty gritty details. And Rehnquist’s book is engaging, thorough, and very authoritative.
There are several other books I read to be sure I was getting accurate impressions of SCOTUS and the justices’ personalities, and these books are listed at the end of this blog.

It is the job of the Supreme Court of the United States (SCOTUS) to interpret and decide the law as found in the Constitution and any federal law based on the Constitution. 
It was not long after the founding of America that in 1803 the SCOTUS Chief Justice John Marshall wrote in the case of Marbury v. Madison that:
  • “It is emphatically the province and duty of the Judicial Department to say what the law is. . . The judicial power of the United States is extended to all cases arising under the Constitution.”
  • Chief Justice Marshall had to put Thomas Jefferson and the Executive Branch of Government into its place because Jefferson was ignoring the Judicial Branch of Government.
  • Marshall wrote the opinion of the Supreme Court, with all the other justices concurring. He defined the four issues at stake; he fully and clearly laid out the law governing all the issues; and he showed why the Executive Branch’s stand was inconsistent with itself logically. 
  • The opinion Marbury v. Madison in 1803 gave SCOTUS the credibility and power it needed to take its rightful place as one of the three, essential branches of government—the other two being the Executive Branch (headed by the President) and the Legislative Branch (Congress). 
  • I encourage you to read the two and one-half pages of Marshall’s brilliantly written logic. It’s well written, well worth the effort to read, and you can be proud of understanding something so important! It can be found online. Google Marbury v. Madison

There is a well-thought-out process, called certiorari, for picking the approximately 100 cases heard by the Supreme Court in any given year. I will lay out a summary of the certiorari process, but I won’t hereafter use that word. Hopefully you’ll recognize that word and know what it means if you see it in future reading about SCOTUS.
The typical reason for requesting SCOTUS to get involved is that the petitioner (the one asking their case to be heard) has lost their case in a federal court of appeals or in a state supreme court.
Each justice has three or four legal clerks, who are recently graduated attorneys; they read the background information on the case and assess whether it would be usefully considered by SCOTUS. SCOTUS mostly takes cases which are important, not to just one plaintiff, but broadly important to creating and maintaining the laws needed by all Americans. 
When a new case arrives, then a legal clerk writes a memo containing the analysis and recommendations on whether that case should be selected and heard by the justices.
  • Each justice reads his share of the clerk-written memos and indicates whether, later on in this process, he will vote to grant or deny the petition for the case to be heard and decided by SCOTUS. 
  • If four or more justices believe the petition has merit and appropriateness, then that petition will be discussed in a conference of the justices. According to Rehnquist, the cases ending up discussed at conference are those in which: (1) there have been conflicts between other courts; or (2) the legal issues are of general importance; or (3) a serious wrong decision has been made in the case. Cases with one or more of these factors would likely go to conference (Rehnquist, 2001). 
  • Importantly, the purpose of the Supreme Court is not to insure justice to every person going through the court systems—because it would not be possible. Moreover, since over a hundred years ago, there have been federal district courts and federal appeals courts in addition to state courts and state appeals courts. So, litigants do have for their case both their original court and an appeals court, which should be sufficient.
Now I will summarize and describe what happens in a case after the certiorari process has selected that case to be heard and decided by SCOTUS.
Step 1 is Justices Learning About the Upcoming Case
Any case heard by SCOTUS is A REALLY BIG DEAL. 
A tremendous amount of legal work by the parties has already produced elaborate, written plans for presenting the case to SCOTUS. And the nine justices will have read the background information on the case, including the memos from their law clerks.
Step 2 is Oral Arguments
The attorneys for each party will have 30 minutes to argue their case in front of the nine justices. Oral arguments are open to the public, but with very limited seating. Transcripts and audio recordings of the arguments are available. 
The attorneys will not talk much about evidence because the focus of SCOTUS is on the law itself. Chief Justice Rehnquist wrote, “The Supreme Court of the United States does not generally review evidentiary matters, and so the only questions before us in a given case are pure questions of law.” And Rehnquist also said, “A good lawyer should be able to make his necessary points in such a case in one half hour (Rehnquist, 2001 page 242).”
Rehnquist says that most judges come prepared for oral arguments by having read background material on the case, but he adds, “A judge who has not prepared at all for oral argument might be more “open-minded,” but it would be the open-mindedness of ignorance, not of impartiality (Rehnquist, 2001, page 242).” 
Step 3 is Conference
In the conference room, the nine justices alone, without their clerks or any other staff, share their prepared opinions on the cases they heard in oral arguments earlier in the week. During the conference the door is literal guarded so that no outside influences intrude and disrupt the very organized process of discussion.
The justices are all seated, ordered by seniority, at a long conference table. They share their opinions starting from the Chief Justice on down to the least senior justice. The justices don’t interrupt each other and there is usually not a lot of discussion about the facts of the case. The major purpose isn’t to argue about the facts, but to argue about what the law should dictate and to determine whether a majority of the justices can agree on findings. Most of the justices try to help reach a majority opinion. That is, a majority would be 5 of the 9 justices in agreement.
The Chief Justice usually takes time to summarize the main issues of the case and as each justice talks there is less and less that needs to be said. By the time the most junior justice has a chance to speak, Rehnquist wrote, “[I]t will be evident that a majority of the Court has agreed upon a basis for either affirming or reversing the decision of the lower court in the case under discussion (Rehnquist, 2001, page 254).
At the end of the conference t Chief Justice confirms with the other justices his count of how each is likely to vote. 
Step 4 is the Assignment of Which Justice Will Write the Majority Opinion
If the Chief Justice is part of the majority opinion in the case, he will choose whether or not he writes the majority opinion or assigns it to someone else in the majority; but if the Chief Justice is not in the majority then the senior justice associate justice in the majority will assign the opinion’s author.
In addition to the majority opinion there are often dissenting opinions and concurring opinions. A justice who voted with the majority might write a concurring opinion to emphasize a specific aspect of the case or to further reveal his particular concerns. A dissenting opinion is written by a justice who did not vote with the majority and who also feels strongly enough that he wants to formally wight out why he disagrees with the majority. 
When draft majority opinions and dissents or concurring opinions are written, they are circulated among the justices. Justices read and comment back and forth to clarify or modify their opinions so their sometimes very complex opinions will be clearly understood. Supreme Court opinions are part of federal law and influence American law far into the future. 
In reading Rehnquist’s book, along with majority opinions and dissents, I’ve learned that in SCOTUS the dissenting thoughts and personal and legal opinions are welcomed. Justices discuss their differing opinions and perspectives. They might invite one another to join an opinion, but most of the justices do not exert personal pressure upon one another. An example of a justice who does exert personal pressure is justice Antonin Scalia; but at the same time, when he wasn’t in his SCOTUS role, he enjoyed socializing with fellow justices—even ones he made harsh comments toward in his dissents.
When all the editing of drafts is completed, the final legal opinions are published on the SCOTUS website. Everyone can know the outcome of the case. Legal opinions from courts indicate winners and losers on serious matters. Legal opinions are necessarily much different from personal opinions. This is a foundational distinction necessary for understanding what the role of SCOTUS is and is not.

In the last two chapters of Rehnquist’s book, The Supreme Court, he displays his awareness of the ways justices can be biased and how the Court’s procedures and traditions minimize, but can’t completely eradicate bias. He discusses how SCOTUS is influenced by the people of America through the concerns of their Congressional representatives. 
In a future blog I will reveal the many pathways by which certain voting blocks insert inappropriate influences into the SCOTUS. 
Rehnquist was a highly respected Chief Justice even by persons who didn’t agree with him on the issues. I feel Rehnquist’s leadership has been a strong contribution to the many honorable qualities of SCOTUS. However, I don’t believe very many Americans know enough about SCOTUS and Rehnquist to appreciate his contributions.  
These resources and books were used for this blog and recommended for your political science reading pleasure:
The Supreme Court by William H. Rehnquist, 2002. This book is detailed both about personalities and SCOTUS procedures. I had to read through some chapters more than once to understand how the procedures fit together. Your efforts will be well worth it. 
Great Decisions of the U.S. Supreme Court edited by Maureen Harrison and Steve Gilbert, 2003. Easy reading. A lot can be learned quickly from this book. 
Out of Order: Stories from the History of the Supreme Court by former SCOTUS Justice Sandra Day O’Connor, 2013. Easy reading. She was a seriously professional justice and her woman’s perspectives have been very beneficial to our country.
Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice by Joan Biskupic, 2005. Book has 338 pages in narrative and 81 pages of notes, bibliography and index. Reader can learn lots on what made her such an important swing voter. This book could serve well as a college textbook! 
The U.S. Supreme Court: A Very Short Introduction by Linda Greenhouse (distinguished journalist and Supreme Court correspondent), 2012. I’ve read many of these Short Introduction books and highly recommend them. They’re all about 125 pages and very well written.
The Supreme Court: The Personalities And Rivalries That Defined America by Jeffrey Rosen, 2006. 
Find more information to explore at: https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States

            WORKS CITED

            For complete references, see the relevant page on the powertomyvotes.com website.

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Monday, August 8, 2022

Trump Led The Republican Attack On Critical Race Thoory (CRT)



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We are talking about Critical Race Theory (CRT) because The New York Times Organization published The 1619 Project and Trump condemned it in a scripted, televised speech. See and hear Trump speaking at:
Since Trump’s 2020 attack on CRT and The 1619 Project, 10 states have passed classroom censorship laws regulating discussion about race, racial inequality and other topics. In 2022 alone, 26 additional states have put forth similar bills. Texas republican governor Greg Abbot brought Trump’s tactics to Texas and created expensive and intimidating laws. https://www.texastribune.org/2021/12/02/texas-critical-race-theory-law/?utm_source=articleshare&utm_medium=social

One of my recent blogs reviewed and discussed the book, The 1619 Project: A New Origin Story. I read it and find it well-written, comprehensive and authoritative. Nothing I read was inconsistent with the history of slavery in other books I consulted. It’s no surprise Trump would attack Nikole Hannah-Jones, The New York Times Magazine, and by inclusion, the many other 1619 Project writers. 
In this blog you will read my opinion that Critical Race Theory (CRT) is a legitimate, college level academic tool; but it’s not appropriate for use in public schools K-12.
And, you will read my opinion that Trump and the Republicans he leads have co-opted the topic of Critical Race Theory and some of the 1619 Project’s narrative content to:
  • Suppress discussion of the history of white racism and slavery, while at the same time 
  • Asserting he stands for racial equality, and
  • Announcing he’s not going to spend any more millions of federal dollars on antiracism training for government employees.
President Biden reversed Trump’s executive on his first day in office in 2021. That’s good, but it will take more than just a few school years for the paranoia Trump stirred up to ease off.

It is:
1. a research framework for studying race related issues
2. formulated back the 1980s by college professors,
3. to help them in the study of qualitative variables such as feelings and impressions. 
A research framework is a group of concepts in a plan for how to go about studying a difficult topic. A framework is a plan for how to get some results on a topic—it is not the topic itself. 
The CRT framework was created as a research tool to study qualities of peoples’ experiences, feelings, opinions on different races. Qualities are very hard to study because, although they can be described in words, they cannot be accurately measured and expressed as numbers. For example, the weight of apples can be precisely measured by the unit of measurement called pounds. BUT, one cannot count a person’s racial anxiety or fear because feelings have no unit of measurement. And, verbal rating scales are unreliable. Feelings and opinions about experiences can be described in words but only very poorly in numbers. 
From what I’ve read, the CRT professionals wisely recognized a measurement problem and created their framework to cope with it.

The recording of and study of history produces facts; and over time a consensus emerges about objective (unbiased) facts. But much is lost to the historical record because it wasn’t recorded; or, the motivating bad motives were too obscure to document. Often bad motives are systematically hidden.
After I read the 1619 Project I realized that the combination of my high school American History class and seeing the movie Gone With The Wind as a teenager, left me without essential knowledge and ideas about the country and world I lived in. As a teen I consumed much war history, but no slavery history. War history strongly affected my adult political worries and actions. But my lack of knowledge about slavery left me having no interest or adult concerns about the institutionalization of slavery in America. 
So as an adult I gradually became aware of segregation, but remained unaware of the long history of the horrible subjugation and segregation of African Americans. In my small town Michigan schools there were actually no people of color! 
But my reading of the 1619 Project: A New Origin Story produced in me sadness for the enslaved and disgust for the gross moral failures of the enslavers. Rationally, the enslavers were business-like in their treating of the slaves as mere property. It worked for them. 
I believe that German Nazism, Stalin Communism, and American slavery are all worthy of much more study to make actual progress understanding and preventing man’s inhumanity to man. We have insufficient knowledge to explain these inhumane regimes. Instead, if we read about them, we believe we know a lot because we are familiar with these complex, lengthy stories. 
A RECIPE FOR A MESS: Mixing Critical Race Theory and Politics 
While I don’t agree with Trump’s methods of politicizing and stomping on Critical Race Theory, I do agree that racial issues are so deep and explosive that improvements will only gradually arise by carefully considered actions of leaders.
I believe that poorly led discussions of racism and exploration of racist feelings risk exploding into confusion, distrust, and fierce objection from some children, who complain to parents, resulting in angry parents, and the contentious school board meetings.
I believe most K-12 school children are too young for any form of CRT. And, because CRT is so abstract and the content (racism) so prone to negative drama that average parents may not capable or willing for their children to participate.
Why is this awful? Because anyone wanting to pick a fight and attract attention to themselves can easily exploit the awful mess of racism to attack their political or cultural enemies. The “blame game.” Anything that even feels wrong can be a motivation to blame someone else for something—even if it’s made up.
Instead, I think kids in school should learn more about government and how Congress makes laws. Kids should learn about exemplary politicians who have managed to advance the welfare of the low, middle and upper classes—not just the elites.

New York Times
“According to Professor Crenshaw, opponents of C.R.T. are using a decades-old tactic: insisting that acknowledging racism is itself racist.”
“The rhetoric allows for racial equity laws, demands and movements to be framed as aggression and discrimination against white people,” she said. That, she added, is at odds with what critical race theorists have been saying for four decades. https://www.nytimes.com/2021/07/09/podcasts/the-daily-newsletter-critical-race-theory.html
Wikipedia on Critical Race Theory
        For references, see the relevant page on the powertomyvotes.com website.
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