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'Uncertain Justice' And The Roberts Court

Laurence Tribe on the U.S. Constitution, the Roberts Court and what he calls “uncertain justice.”

Supreme Court Chief Justice John Roberts arrives for President Barack Obama's State of Union address before a joint session of Congress in the House chamber Tuesday, Jan. 28, 2014.  (AP)

Supreme Court Chief Justice John Roberts arrives for President Barack Obama’s State of Union address before a joint session of Congress in the House chamber Tuesday, Jan. 28, 2014. (AP)

We are a nation of law.  Change the law, change the country.  The ultimate arbiter is the Supreme Court.  Under Chief Justice John Roberts, the country is changing.  On campaign finance.  Money politics.  Corporate power.  Unions.  Guns. Health care.  Gay marriage.  Race.  In 5-4 decision after decision, the Roberts court is changing the country.  Critics call it a politicized high court, not above polarization but part of it.  My guest today, constitutional scholar Laurence Tribe, says it’s more subtle than that.  More interesting.  This hour On Point:  the Roberts court, and where it is taking the country.

– Tom Ashbrook

Guests

Laurence Tribe, constitutional law professor at Harvard University. Co-author of “Uncertain Justice: The Roberts Court and The Constitution.”

Neomi Rao, professor of constitutional law at George Mason University.  Former counsel for President George W. Bush.

From Tom’s Reading List

The Atlantic: Scalia v. Scalia – “The problem of engaging religion openly at the high court extends beyond the unspoken agreement not to talk about the justices’ religions. The Court itself has opted not to probe the intensity or validity of a plaintiff’s religious conviction, in part thanks to Scalia’s reasoning. Get too deep into second-guessing matters of spiritual belief, he noted in his landmark 1990 opinion denying peyote-using Native Americans an exemption from everyday drug laws, and there’s no getting out.”

NPR: Chemical Weapons Law Doesn’t Apply To Jilted Lover, Supreme Court Rules –”Federal laws that were meant to prevent the international use of chemical weapons can’t be applied to a woman who tried to poison her husband’s mistress, the Supreme Court has ruled. Carol Anne Bond had smeared toxic chemicals in the hopes that the other woman would develop a rash. The Supreme Court ruled that the federal law shouldn’t have been used to prosecute Bond, as her actions were forbidden under state or local laws. The opinion was written by Chief Justice John Roberts.”

Washington Post: Uncertain Justice: Understanding the Roberts Court — “While there is plainly a role for such work, most of the purported “certainties” about the Roberts Court that currently stalk the land are misleading. The justices are too diverse, the Constitution too capacious, and the Court’s role too complex to yield to such reductionism. The story of the Roberts Court is a lot more interesting and more fraught with surprise, treachery and internal disagreement than such too-tidy plot lines suggest.”

Read An Excerpt Of ‘Uncertain Justice” By Laurence Tribe and Joshua Matz

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  • Michiganjf

    Just amazing that ANY American would even CONSIDER allowing any Republican to appoint anyone to the SCOTUS ever again.

    The Roberts’ court will be laughed out of the history books as the most retrograde, sophistic (sometimes outright bogus) court in the modern era.

    • MOFYC

      You mean like Antonin Scalia? Not appointed by a Democrat but approved UNANIMOUSLY by a Dem-controlled Senate. Thanks for that watchdog-ism, corporate-owned Democratic Party.

  • MadMarkTheCodeWarrior

    This court is a joke. Case in point is Judge Thomas who’s has asked two or three questions in TWENTY FOUR YEARS. I’m sorry but an unquestioning judge is as bad a sign as an unquestioning electorate or unquestioning party membership, or prrhaps worse. When the electorate fails to question their thought leaders, the are no better than cattle being led to the slaughter. I never imagined a day when the court cpuld rule that corporations are people. Well if they are, why aren’t any if them on trial for murder?

    • John Cedar

      There are certainly some lame punchlines on the SCOTUS but Thomas is not one of them. You people are never good at hiding your racism.

      We have one dolt who refused to allow our military on her campus to ask the brightest students in the country if they would like to serve in the armed forces. We have another misandrist racists who stated that as a female Latino she would make better decisions than a white male.

      But the weakest link is the liberal Roberts who doesn’t know enough about basic tax laws to understand there is a difference between a penalty and a tax (taxes are deductible and penalties are not). Nor does he care to draw a distinction between taxing a behavior verses taxing a non behavior.

      • MOFYC

        Yup, criticizing a black person is automatically racist. That’s exactly what some liberals say about Obama critics.

      • J__o__h__n

        John Roberts is an evil genius. His ruling in Obamacare was a long game to reduce the power of the Commerce clause under a veneer of reasonableness. Scalia and Thomas have delivered very little other than stirring up the base.

      • MadMarkTheCodeWarrior

        I love it. Just because Judge Thomas is black, and I criticize him, you call me a racist? And if I told you that facts indicate strongly that Anita Hill was telling the truth, would that matter? Would that make me not a mysogynist? Would having black friends make me the worst kind of racist… a twisted undercover racist? Do facts even matter at all when you are blinded by rage?

  • toc1234

    always room on Tom’s show for someone looking to bash the Roberts Court. Tom, do try to at least keep the overt fawning at a minimum…

  • MOFYC

    It’ll be an interesting listen. Because the primary reason a case
    gets heard by the Supreme Court is precisely because there is uncertainty at lower levels, with different appeals courts rendering different verdicts.

  • Yar

    John Roberts is the Apostle Paul before his conversion on the road to Damascus. We can pray for his conversion.

  • Coastghost

    Or is it the case that American culture has become so thoroughly politicized that the USSC is merely riding herd over a politically rancorous and disputatious society? (Professor Tribe has never contributed to any political rancor or political disputation, surely.)

  • brian copeland

    I would like to see a new rule that any borderline 5-4 Supreme Court decision be required to get re-reviewed 10 years down the road. With only a single justice deciding such critical issues, often on issues which are continuing to evolve in the public’s mind, it seems only logical. Maybe its some other time frame than 10 years, and maybe you just give the court the option to re-review the case (similar to how they decide to hear cases in the first place), but you get my point.

    • Jeff

      That does already happen, another similar case is brought before the court when the make up of that court changes over time…how do you think FDR got his New Deal laws to be come “constitutional”? Do some research on “The Switch in Time that Saved Nine”…FDR threatened the court to do his bidding and amazingly they did buckle under those threats. Which is why we have a bankrupt Social Security system today!

      • jimino

        Without the new perspective brought by personnel changes, cases like Plessy v. Ferguson and Pace v. Alabama wouldn’t have been overturned. You don’t lament that, do you? And of course, the most recent example is the Citizen’s United ruling which overruled decades of precedent. So it goes both ways.

        As the Citizen United case illustrates it is the self-proclaimed conservatives on this Court who are by far the most activist justices as measured by the overruling of the will of the people as expressed in legislation.

        As far as your Social Security aside, only in the right-wing nutoshpere is having almost $3 trillion in reserve considered “bankrupt”

        • Jeff

          Precedent cannot violate the 1st Amendment, Citizen’s United was a clear statement that money spent on speech means that money is speech. How large will that SS reserve fund be after 2034? Zero dollars is the correct answer.

          • jimino

            So the fist amendment didn’t exist at the time of the prior decisions? Your view of how this court really operates is naively foolish. Nothing is the Constitution means anything except what the Supreme Court at the time says it means. Period.

            And SS won’t be broke if funded like it has been from the same portion of overall income.

          • Jeff

            I’m saying those laws violated free speech rights, just like Adams did when he wrote the sedition acts during his presidency…it happens and has happened before…we have to stand up against those types of laws.

  • toc1234

    its out there today Tom b/c the current SC lineup doesn’t appeal to the liberal elites… and members of the media like you…

  • http://www.google.com Big Brother

    will the Liar in Chief wag his finger at the next State of the Union?

    • MrNutso

      Don’t know about the finger, but Bush has not been President for over 5 years.

  • Jeff

    I always find the Supreme Court decisions quite interesting and the logical games of twister that the justices use to come to a conclusion are very telling. Odd how the “conservative” branch of the court take into consideration all the issues and come to different conclusions on many different cases…while the “liberal” side of the court vote in lock step on nearly every controversial issue, ignoring the facts, laws and actual issues at hand to give their favored political party the exact decision they desire. Kennedy is probably the best justice on the court since he tends to switch his vote based on the facts of each and every case.

    • J__o__h__n

      nonsense

      • Jeff

        Wow, what a wonderful retort, I love how you collected your facts and made a very interesting counterpoint to my comment. If only all liberals could debate like you we might have a world where we could understand each other and have a really constructive conversation. Oh wait, no I just got a 1 word insult and nothing to support it…I suppose that is the standard liberal response to everything in this world.

        • Jill122

          Feel lucky you got that. John hit the nail on the head. TSTR (too silly to respond)

        • J__o__h__n

          Are you listening to the show? The liberals and conservatives don’t simply vote together on all issues.

          • Jeff

            You’re half right, conservatives on the court tend to switch back and forth on issues all the time…the liberal block votes almost always on the sides on Democrats…the issues (like free speech or government making laws [not judges]) are the only ones where they might convince Breyer to switch sides and even then it should be 9-0 decision not 6-3.

          • J__o__h__n

            Scalia is occasionally correct on speech and privacy issues. Kennedy can be a swing vote as can Roberts. Alito rarely departs from the conservatives. Thomas is to the right of the conservatives when he doesn’t share their opinions. Your myth of the free thinking independent conservatives contrasted to a liberal monolith doesn’t fit the record.

          • Jeff

            What record? You didn’t back up your statement with specific court decisions…would you mind backing up a thought with facts?

    • NrthOfTheBorder

      Jeff, the same can be said of the conservative side of the court. Going in to almost any case and one can predict how Scalia will decide….and Thomas will surely follow. Now add Roberts & Alito.

      Overall however, with the nation divided as it is no decisions by any court will please most.

      • Jeff

        Roberts allowed Obamacare…Kennedy killed DOMA, clear examples of conservatives deviating from pack on very MAJOR issues.

  • Jill122

    Tom, please ask him about Citizens United and McCutcheon.

  • OnPointComments

    It’s interesting that we’re discussing the Supreme Court today, while Senate Democrats are on CSpan proposing to amend the Constitution so that Congress will have the power to abridge the freedom of speech of all Americans. For the first time since 1791, Democrats want to change the Bill of Rights.

    • Jill122

      You must have turned on the Faux version of C-Span. That’s not what is happening right now at all. Unless you believe that $1.00 equals one vote. There are many who do not. It’s a legitimate difference of opinion. We must do something about campaign finance law. This is the beginning. Those men and women on the hill lose credibility daily because of the sense and knowledge that the wealthy have a bigger megaphone and are able to push through legislation that the rest of us don’t want.

      • OnPointComments

        The proposed amendment would give the Congress the power to regulate campaign speech. Can you honestly say that you believe this is a good idea?

        If these Democratic Senators really wanted to lessen the impact of money in government, they’d propose a constitutional amendment for term limits. If a senator was limited to one term, and representatives limited to three terms, there’d be much less incentive for anyone to invest huge sums of money in a member of Congress.

        • Jill122

          I believe that campaign contributions should be limited; I believe that lobbying efforts should be limited; I believe that terms should be limited. I’d like nothing better than to see the legislators limited to two terms. I also believe that “dark money” should be gotten rid of entirely. Whether it’s a direct contribution to a specific candidate or money to be used for “educational” purposes, all gifts above $500 should be transparent.

    • http://neilblanchard.blogspot.com/ Neil Blanchard

      Money |=| Speech

      Money = Property

      • OnPointComments

        Suppose the amendment passes, and Congress, in its seemingly infinite stupidity says “Money does not equal speech. Therefore, from this point forward, only verbal speech will be allowed. No person or group will be allowed to expend money to promote its point of view.” Would you say that freedom of speech has been abridged? Surely the answer from those who say “money does not equal speech” must be that prohibiting the spending of money doesn’t limit speech.

        If money doesn’t equal speech, then how can the argument be made that those who spend more money have more speech than those who don’t?

      • Jeff

        If money is used to purchase speech then that money is speech, pretty simple.

        • http://neilblanchard.blogspot.com/ Neil Blanchard

          Nope, try again. Giving money is an act – handing property to someone else is not speech.

          • Jeff

            Using it to purchase speech is speech. Where’s your limit on commercial business spending on ads? Where’s your limit on spending for churches to get out their message? Where’s your limit on spending for an individual to purchase air time to sell something? If those cannot be limited due to free speech rights then by all means it’s the same thing in the political arena. Please, please, please….go ahead and say something like “political speech is different” because that’s the first part of a false assumption…please go ahead.

          • http://neilblanchard.blogspot.com/ Neil Blanchard

            You’re wrong. Rights are things that all people have equally. By your logic, the rich are “more equal” than others.

            Purchasing a bigger megaphone is not speech. Buying access to an audience is not speech.

            Saying you support a person is speech. Giving that person money is an act – giving your property to them is not speech.

          • Jeff

            Sure it is, every time someone gives their property to NPR they are making a statement…how can suggest that they aren’t?

          • Jeff

            That’s a form of speech too, how can you suggest it’s not when NPR takes your dollars you are making a statement.

          • http://neilblanchard.blogspot.com/ Neil Blanchard

            Now, you’re grasping at straws.

            Money is not speech.

          • http://neilblanchard.blogspot.com/ Neil Blanchard

            You’re still wrong.

  • X Y & Z

    Jeffrey Toobin: Obama ‘Clearly Broke the Law’ on Bergdahl

    http://www.mediaite.com/tv/jeffrey-toobin-obama-clearly-broke-the-law-on-bergdahl/

    “Uncertain Justice?”

    I want to see On Point produce a program about the “Broken Justice” coming out of Obama’s Taliban friendly White House.

    • Jill122

      The law is unconstitutional. Let them take it to the court. Even the republicans will agree that Congress cannot tie the hands of the president when it comes to negotiating for the sake of someone who has been kidnapped.

      Jeffrey should take it to the SCOTUS.

      • X Y & Z

        “Kidnapped?” Don’t make me laugh.

        Bergdahl is a deserter. Six US soldiers were killed searching for him.

        Bergdahl should be in Gitmo.

  • tarryfaster

    I find it disconcerning that there are NO protestants OR atheist sitting on this court!

    • Jill122

      Read Town of Greece — Thomas’ opinion. I would hope that would satisfy any religionist.

      • tarryfaster

        What’s your point?

  • J__o__h__n

    Of course it is an oversimplification, but overall the Roberts Court is right leaning.

    • NrthOfTheBorder

      Nice turn of phase John. Conservative thinking tends to be oversimplified – or, simply ignores issues with more than one answer. Blindness to their own duplicity is rampant and telling.

  • Coastghost

    Prof. Tribe might do well to devote a book to the numerous challenges and complications that contemporary technology (commercial and private use both) is posing to contemporary jurisprudence.

  • geraldfnord

    When he was being confirmed, one wag claimed that the future Justice Roberts’ decisions were remarkably consistent: he always favoured the more powerful side. I think this explains his votes on the D.o.M.A. and Citizens United both.

  • X Y & Z

    It’s scary to think what of what will happen to the country if Obama can appoint one more Justice to the Supreme Court, giving the court a liberal majority.

    Say hello to judicial dictatorship and goodbye to free speech, as well as the Second Amendment, privacy, property rights etc etc.

    • MrNutso

      Conversely, some would have said the same thing 8 or 10 years ago about the then current President.

    • Yar

      Case in point, say Ruth Bader Ginsburg decided to retire this year. Who would be able to get through the Senate? Elisabeth Warren? No way, why because the conservatives fear her too much. Not because she is not qualified or would serve honestly. But because she is not conservative.

  • Davesix6

    Don’t see how anyone could see the Roberts court as conservative after it upheld obamacare

  • Jeff

    The DOMA case, Kennedy voted with the liberals to allow gay marriage in California. In the Obamacare case Roberts supported Obamacare. Two very clear cases where liberals won…now name one major case where liberals voted with the conservative majority.

    • J__o__h__n

      Justice Breyer was the swing vote that allowed the state display of a religious statue under certain circumstances.

      • Jeff

        Yeah, I think Breyer is the most moderate of all the liberals…once in a while he is forced to reflect upon the issues at hand, I mean that was a free speech issue the fact that case wasn’t 9-0 was very disturbing. “Congress shall make no law”, was very clear at the founding and prayer was part of public life (including government). The fact that 3 liberal justices were trying to silence free speech AND prayer because it took place at a town meeting is more telling about the 3 justices who can’t see a clear issue like that.

        • J__o__h__n

          I think he was wrong in that case. And a prayer offered by a public institution should not be constitutional.

          • MrNutso

            It is clear to me that the town council was trying to promote a specific religion through prayer.

          • Jeff

            Okay, if that’s the majority in that town…and it happens before and/or after the meeting why do you think you can silence their speech?

          • J__o__h__n

            Before or after is fine. Not as part of it. Why should the majority have more rights to promote their superstitions?

          • Jeff

            Because it’s protected in the 1st Amendment…the majority always does that through passing laws and speech in general.

          • J__o__h__n

            The majority does not have the right to violate the constitutional rights of a minority.

          • Jeff

            The right to free speech is a universal right and no one can write a law to limit it…how can you not see that? Just because 1 person is praying doesn’t stop another person from doing so…if another person wanted to offer up a different type of prayer they were more than welcome to.

          • J__o__h__n

            A prayer at a government event is not individual speech but an institutional endorsement of religion. Other religions are occasionally given token representation although things like the reaction to the proposed Satan statue tend to show this as the fraud that it is.

          • Jeff

            So a prayer before a football game or school is a establishment of a religion? Nope it’s not, SCOTUS decided the case many times…these are just people speaking in a public arena…get over it. If you don’t like it then request to give a Muslim prayer before those same events…I personally don’t really care and I’ll ignore it if it does happen. Why do you think you impose your viewpoint upon others? Violating their free speech rights?

          • http://neilblanchard.blogspot.com/ Neil Blanchard

            Yes, just as is prayer in schools.

          • Jeff

            We’re talking about BEFORE and AFTER, that’s all we’ve ever talked about. I remember every morning there were students who would pray before school…did that violate some law? Go to any state house before session and they’re always started with a prayer…you do realize that, don’t you?

          • http://neilblanchard.blogspot.com/ Neil Blanchard

            Prayer in schools is unconstitutional. It probably is in legislative bodies, as well.

          • Jeff

            Please go out and arrest every child who stand in a circle outside of a school and pray before school starts, it’s your duty as a liberal.

          • http://neilblanchard.blogspot.com/ Neil Blanchard

            Yup, whatever you say, Jeff.

          • camco50

            Not all of us grew up or live in rural Iowa or a southern state

          • Jeff

            I grew up in a suburb of Minneapolis, it’s about as liberal as you can get out here.

          • camco50

            Which your representative, Michele Bachmann will proudly confirm

          • J__o__h__n

            I’m not advocating that the government impose a religious view before a public meeting. All should be equally removed and all should be equally permitted at a private event. I’m not requiring the government to declare there is no god and expect a captive audience to sit there.

          • anne sweeney

            The Supreme Court is a Liberal leaning Court, now and over the past few years.

          • J__o__h__n

            It is not currently liberal leaning.

          • camco50

            Now I can see why Harvard gave you that honorary law degree. What an immense intellect you have.

        • Jill122

          Because it’s not clear. I don’t like the idea that legislators begin with a prayer, particularly when it can be proved that most of those prayers are Christian. No prayer or all prayers is much more appropriate in my way of thinking. We are a diverse society. I would hope that most people celebrate that fact rather than an attempt to proselytize or if not that, to put people on their back foot.

          • Jeff

            The whole point of the 1st Amendment is to protect speech that you “don’t like”…especially prayer which has an additional religious protection. All prayers were allowed, no one was willing to go up and give that prayer in the meetings…you do realize that, don’t you?

        • camco50

          The Mullahs have called and they want to thank you for the support you’ve given their cause. For a while, they thought this country was against theocracies. That is, until you affirmed their belief that prayers should be forced on a population. Nice job!

    • camco50

      Maybe he’s a conservative but not as whacko as you John Birch adherents. Do you really believe that discrimination of gays is justifiable? Got a soft spot in your heart for Dredd Scott?

  • James

    I like Mr. Tribe, we could use a few more of him and few less of “why isn’t the Supreme court giving me more welfare” types.

    • Pleiades

      You can tell by Mr. Ashbrook’s questioning that this conversation with Mr. Tribe is not going the way Mr. Ashbrook had hoped for when On Point booked Mr. Tribe.

      • James

        No kidding

  • Potter

    I like Lawrence Tribe a lot and wish he were on the SCOTUS but the problem and the good thing about liberals is that they are VERY TOLERANT whereas the conservatives of today are NOT TOLERANT and very partisan as though they are in a war with liberals. Liberals are not at war with conservatives this way- certainly not Lawrence Tribe. I am not okay with Tribe’s description of the current court…

    • Jeff

      That’s not true at all…the liberals are much more intolerant and they’ll shout you down before you can even send a point back…I’ve literally been told to SHUT UP with no other counterpoint by liberals many times…I was just making a comment.

      • Potter

        maybe you are talking about intolerance of intolerance. I am for that.

        • Jeff

          That’s double-talk and you know it, intolerance is intolerance…just because you feel justified doesn’t make it right to treat another person like dirt.

          • Potter

            no it implies that there is a form of intolerance that should be intolerant because it’s harmful and divisive and obviously so. We are talking about within our system. That dictators and autocrats use this same logic does not apply here. We are talking about liberalism HERE, not about phony arguments that dictators give.

  • Davesix6

    It’s very sad that this nation is being ruled more and more by judges and bureaucrats.

  • geraldfnord

    Money in politics can’t be solved because it is of a piece with the rest of the way things are set up: if we accept that wealthy, including their children, get policing, housing, education, and food (if they want it), and fundamentally get more protection from the government (people with a million-fold less property have it protected a million-fold less…at least), why shouldn’t we expect that they will have much more influence on government?

    And there is an additional factor: in anthropoid hierarchies, good treatment is both a good in itself and also a _marker_ of closeness to the top…so people who have been treated _very_ wield more influence even just by their arguments seeming better. (Or, as Sheldon Harnick had Tevye put it, ‘When you’re rich they think you really know.’) This isn’t entirely unreasonable: those who prosper _might_ well have a better understanding of how things work…but likely not in all domains, at all times, and not necessarily at all times…and the net result is a courtier industry of people allowed near the Money River in exchange tot heir continual reassurance of its banks natives that their place were guarantied (by God, by The Market, genetics, the Stars…whatever).

  • Potter

    The definition, main quality, of liberalism is tolerance.

    • OnPointComments

      Tell that to Chik-Fil-A and Duck Dynasty.

      • http://neilblanchard.blogspot.com/ Neil Blanchard

        … and to slave owners?

        Protected speech means you can say anything you want to – but you are not protected from the effects of what you said.

      • James

        tolerance of intolerance?

        • OnPointComments

          I doubt that Condoleezza Rice and Brendan Eich would agree that liberals are tolerant.

        • Jeff

          Ah, the common logic of dictators, same logic used to exterminate many people. It’s okay to be intolerant if the other people are the bad ones…great point.

          • camco50

            Oh, you with the dictators again? Boycotts have been used by both sides over the years, don’t ya think? Most of the times, companies ignore them unless they really are embarrassing to the company. Eich was against LGBT rights. Do you think that’s justifiable guys? Stand up and tell us how much you want to discriminate against gay men and woman so we can set the record straight. Makes you proud, doesn’t it. That’s what that was about. With Rice, I’m amazed anyone wants to hear what she has to say. Didn’t she and her Bush Wrecking Company lie to the world about WMD? Yellowcake anyone? And I’m pretty sure she was complicit in torture or whatever you call it. And that surveillance you guys complain about today, wasn’t she a pioneer in the field? Let it go…..

          • Jeff

            I support gay rights in my own state, but I would never be in favor of a federal mandate to force that upon every state…this is an issue for federalism and let each state decide. Eich donated to a political movement in 2008 and 6 years later the news got out and he lost his own company he started from scratch…see why we have a secret ballot? Maybe we need secret donations too. Curveball lied, now just tell us who lied in the Benghazi situation and we can fire them and move on.

          • camco50

            Now that’s a strong position to take. I’m for gay rights except when Washington says we should be for it. What conviction! You are either for gay rights or against them. Does it matter where the right position originates? You would be a staunch defender of slavery today with that line of reasoning.

            As for Eich, he didn’t lose his company, just his CEO position. His shares don’t magically disappear and he was CEO for only a couple weeks anyway. If you detail the story a bit, you find that his contribution to the hate campaign in 2008 was revealed in 2012 but the event was a non-starter, low-grade event. The problem was resurrected when he was elevated to CEO and now the head of a progressive Silicon Valley company. Mozilla prides itself on principle and apparently Eich’s position on gay rights is the antithesis of progressive. Seems like demoting him was a smart corporate decision to me.

            Ahh, Benghazi. What is it that you think happened and who lied? A CIA station was rebadged as a diplomatic mission for the express pupose of arms movement to Syria. Four people die at the hands of a manic terrorist crowd. What more is there to know? Someone died in a war zone? Alert the media.

            good reading if you choose:

            http://www.washingtonsblog.com/2014/04/real-benghazi-story.html

      • geraldfnord

        Yes, our parading around with guns around their doors and spouting on ‘Free’Republic how much love to use their faces for target practice was quite rude and intimidating.

        Tolerance does not extend to giving custom—note that it does extend to providing services if you are a public accommodation (so every liberal should hope that the homophobic photographers and florists are allowed their silly business practices, but not the managers of halls, hotels, trains, &cetera that are generally open to whomever will pay).

        And: maybe we would think differently of it were it not certain that these worthies would well survive the lack of our custom—all were rich (and quite unbearded) before, during, and after the kerfuffle.

    • notafeminista

      Tolerance of what precisely?

      • Potter

        Tolerance of many different viewpoints but at the same time not tolerant of viewpoints that are intolerant. The liberal position tolerates different views other than those that impose on others except liberals impose where the general good of all trumps those views.

  • jimino

    I find it supremely ironic that the most “origanalist” justices are precisely the type of people our founding fathers would NEVER have envisioned being on the Supreme Court.

    • J__o__h__n

      Catholics and Blacks?

    • notafeminista

      Not ironic at all – in fact, perhaps exactly in keeping with the notion that these “truths are self-evident”. I’m glad I live in such a place. Aren’t you?

      • jimino

        Apparently not so self-evident to those who, to name a few, institutionalized slavery, denied women the right to vote, and left it up to the States to decide whether those unalienable rights actually had to be honored, which you wouldn’t think would be an issue if they truly were “rights”.

        I’m happy to be living in a place where we can correct these obvious flaws by interpreting a living document in determining and enforcing protection of those rights in the context of evolving human experience and knowledge Aren’t you?

        • Jeff

          Actually there were specific amendments passed to address those previous injustices…there was no living document theory back then…besides the amendment process.

          • jimino

            So racial and gender equality before the law in every State are not self-evident unalienable rights, but ones created by mankind in its developing insight into what is right then enshrined into our governing document. Of course, those words were of little value through a century of Jim Crow/separate-but-equal laws, ultimately dependent on being interpreted to mean that racial segregation in public facilities was unconstitutional. An interpretation you must surely agree with.

            So it sounds like you mostly agree with me.

        • notafeminista

          Well. A little historical perspective wouldn’t hurt. A flaw today wasn’t isn’t a flaw 200 years ago. If the founders truly meant just the men or just the white men or just the rich white men, they would have said as much. Nothing of the sort appears in the Declaration or the Constitution. Just for example if you think the US is responsible for instutionalized slavery, you need to read a little more.
          As for correcting flaws in the name of human knowledge, I would be careful. Think of what we didn’t “know” yesterday.

          • jimino

            So the answer to my question to you is “yes”.

          • red_donn

            Politicians and power brokers did not learn how to propagandize with the invention of television and radio. They were, by and large, self-interested men with far too great a sense of history and subtlety to speak in blunt terms. Madison’s 10th Federalist Paper, along with the notes of debates from the Consitutional Convention, tell an awful lot about what the Founding Fathers actually intended when they set up the government.

            To pretend that the Founders did not envision a government comprised of and ruled by men is as ridiculous as Bachmann’s assertion that the Founders “worked tirelessly until slavery was ended.” The only feminist I know of among the founding fathers was Aaron Burr, hence the eventual need for a 19th Amendment. Not for nothing did Susan B Anthony “invoke the Revolutionary spirit” of no taxation without representation – for she had little recourse in the laws provided by the Founders.

  • X Y & Z

    Mr. Ashbrook,
    Please ask your guest Laurence Tribe, about the legal ramifications of some of the Obama Administration’s well documented actions:

    -Illegal drone strikes which have killed hundreds of innocent people
    -shipping guns to Mexican drug cartels
    -IRS harassment of conservative groups
    -Spying on Americans as well as world leaders
    -releasing Taliban commanders without first consulting Congress

    What kind of justice is that?

    • Jill122

      He’s talking about decisions the court has made, not those that you are planning to bring. How is he supposed to know what they will rule? He’s a professor not a psychic.

      • X Y & Z

        Excuses don’t excuse Obama for breaking the law.

        • Jill122

          I’m not excusing Obama. Take it to the court. Be sure you are on solid legal ground. Even Bush couldn’t be prosecuted. He made sure he was on solid legal ground when he tortured the prisoners of war. Sure we had never done it before, but that doesn’t mean he couldn’t find some attorneys who could and would justify it. You don’t recall how men went to the Ashcroft’s hospital bed while he was still drugged up to seek his signature?

          • X Y & Z

            If I’m not mistaken, Bush has been indicted in Indonesia.

          • J__o__h__n

            The fact that Bush’s lawyer signed off on it doesn’t make it not illegal.

    • Davesix6

      All excellent questions, each confirms the fact that this President and all left wing progressive politicians believe they are above the law.

  • anne sweeney

    Police Cameras, License Plate Scanners, 4th amendment violations to privacy. Concern me.

    • hennorama

      anne sweeney — re: License Plate Scanners –

      What’s the worry?

      Per a recent Los Angeles Times article, Use of license plate photo databases is raising privacy concerns:

      A growing number of cameras — hundreds around Los Angeles, thousands nationwide — are engaged in a simple pursuit: Taking pictures of license plates.

      The digital photos, automatically snapped by cameras mounted on cars and street poles and then tagged with time and location, are transmitted to massive databases running on remote computer servers. Cops can then search those databases to track the past whereabouts of drivers.

      Law enforcement officials say the data collection is invaluable for tracking down stolen cars and catching fugitives.

      But such databases are also being built by private firms, which can sell access to anyone willing to pay, such as lenders, repo workers and private investigators. That is raising worries among privacy advocates and lawmakers, who say the fast-growing industry is not only ripe for conflicts of interest but downright invasive.

      . . . . (mind the gap) . . . .

      The industry is growing rapidly. A 2010 study showed a third of large police departments using plate readers. In 2012, the most recent data available, a survey found more than 70% of the nation’s police departments had the scanners.

      Vigilant [Solutions, one of the private database companies,] in particular has seen its appeal among law enforcement officers grow because it can offer police departments access to a trove of more than 2 billion scans, maintained by an affiliated company, Digital Recognition Network. That database is fed by cameras attached to vehicles driven by repossession agents roving the nation’s roadways.

      C’mon now, 2 billion scan hardly merits concern, right?

      (Tongue firmly in cheek as to the above)

      See:
      http://www.latimes.com/business/la-fi-law-enforcement-contractors-20140518-story.html#page=1

      http://vigilantsolutions.com/products/license-plate-recognition

  • S Mack Mangion

    Liberal “justice(s)”
    I can help but think of the eminent domain case that allowed a CT city to take the homes of some low-income people that lived in a beautiful water-side location. In that decision Breyer and Souter were in the majority that allowed the “taking” from the lower income people.
    To me it speaks of how the court, even its liberal side, protects the well off.

    • Jill122

      The vote was to determine whether a city had the right to take, by eminent domain, property for which it had a higher purpose, including higher property taxes.

      • Davesix6

        Either way Jill the vote amounts to an attack on citizens private property rights.
        And the type of thinking behind it is definitely “progressive”, not typically conservative and definitely not a libertarian point of view.

        • Jill122

          Not either way. It was a slum that needed an upgrade and the citizens there did not have the money to do it. You might argue that the city should have done this or that for the people there so that they might stay. But what they chose to do was join with big developers to create a plan to get rid of the slum and use the property at it’s “highest and best value.” You can also argue that we have defined “highest and best” to the advantage of those with money. That’s a problem as well. Why don’t those words include the human potential? I’d like to know that too. Maybe it’s too difficult to measure.

          But the case was highest and best — and there was really no argument for the other side and so it was decided the way it was.

          The conservatives were reaching far outside any definition that had been used before and far outside the meaning of the CT law as it was written.

          • hennorama

            Jill122 — The Kelo decision was an ultimate disaster for the city of New London, and its mayor actually apologized to those whose property was taken.

            Pfizer left, and the hoped-for development was never built.

            ‘Kelo’ Revisited

            Properties were seized and a neighborhood razed in the name of ‘economic development’ that never came

            Sources:
            http://www.bostonglobe.com/opinion/2014/03/12/the-devastation-caused-eminent-domain-abuse/yWsy0MNEZ91TM94PYQIh0L/story.htmlhttp://www.weeklystandard.com/print/articles/kelo-revisited_776021.html

          • red_donn

            An absolute disgrace, and one perpetrated on a regular basis. If this had been perpetrated by entities outside of state corporatism, we’d rightly refer to it as a union of extortion, fraud, and theft.

            Eminent domain should be illegal without a contractual and set plan, and those who enter into it (namely big business and their political cronies) should not have the right to reverse course at will when it is done. Seizing private property via the state gives up the pretense of market enterprise and enters the business into a nominally public project, which entails certain duties. Invoking the threat of state force to acquire property should not be employed in a manner that makes it support and subject to a private interest’s profit motive after the act.

        • geraldfnord

          Shorter: don’t call it ‘progressive’, as many non-progressives still aren’t that Libertarian, much less libertarian.

          No, it’s Statist, not just ‘progressive’, and labelling as such were deceptive, as there is a long history of self-identified conservatives and other non-progressives’ deciding whose property rights were more important…see icon Wm Buckley’s editorials about the possible rightness of denying suffrage to Southern blacks if such threatened white peoples’ property rights, completely ignoring that in a at-least-somewhat democratic system the victims of such a denial will not have the political power necessary to _their_ property rights’ security.

          Historically, conservative parties have tended to attend to the rights of some institutions’ retaining rights above and beyond those conferred by the power owning property engenders (the Church, the gentry, the Monarch)…this was considered so great a threat to liberty that Britain’s Liberal Party formed precisely to chip away at those rights, and property rights absolutism was the chisel used. Later, when much of those old privileges had been chipped away, it was decided over time that absolutist propertarianism _itself_ supported an accumulation of privilege that threatened liberty.

          (Libertarians complain that modern ‘liberals’ ‘stole’ the term from their Spencerian ancestors; the anarcho-communists to which the term ‘libertarian’ used to refer get a good laugh out of that…but we know that property, beside being the fundament of liberty, also _is_ theft…and is impossible, besides.)

          This is of a piece with pointing out how Progressivism was riddled with eugenics thinking while ignoring that such thinking was common throughout most of the political spectrum, being opposed only by Communists and the very religious; many who demanded absolutely free markets had no problem with State sterilisation of the ‘unfit’.

          Though things are different now in the U.S., and many conservatives have adopted libertarian positions or glamours, there is still a strong non-libertarian bent, as any libertarian conservative inveighing against the Statist distinction between ‘American workers’ and ‘illegal immigrants’ will learn. Many use it, as I indicate above, as mere glamour because they’re quite willing to drop the seeming when government power works for Their Favourite People, whomever they might be….

      • S Mack Mangion

        Hi Jill – as I recall the “project” which precipitated the taking, was not built. But the people are gone and corporate ownership remains. . . .

  • Potter

    Tribe should define conservatism. I think he has a definition of conservative that does not reflect my perception of that group today… a group that is divided as well.

    • AnnaMae

      Excellent point.

  • anne sweeney

    We can see that change in the Social Arena has divided and polarized the United States. The FTC favors Big Business, Big Banks, Big Retail entities along with Manufacturers, Sherman Anti-Trust needs a re-write. Obviously, too big to fail needs to go. Allowing businesses to grow unimpeded, fueled by the Stock Market, will further push competition and free markets from the equation. To encourage growth within Small Business, there needs to be more regulation of Huge Corporate Entities.

  • http://alchemicalreaction.blogspot.com/ Alchemical Reaction

    The legal system itself… IS FRAUD… Look up admiralty law. “Admiralty law also covers many commercial activities, although land based or occurring wholly on land, that are maritime in character.”

    BIRTH through the birth “canal”.

    FRAUD.

    Maritime Law: The Jones Act

    There are two different kinds of law on the planet. The first is known as COMMON LAW, which is law of the land. The other is maritime admiralty, which is also known as the law of water, it can also be referred to as banking law.

    Maritime admiralty law considers you a maritime admiralty product, simply because you were birthed out of your mother’s water. A ship sits in its birth until the captain gives a certificate of manifest to the port authorities.

    The reason you are required to have a Birth Certificate is because at the time of your birth there is an exchange of money to cover hospital costs. The dock signs your birth certificate simply because that is what the ship is tied to, you will need a dock to sign your birth certificate.

    It still does not make sense, more clarification please?

    Let’s go over this again, when you came down your mother’s birth canal you came out of her water, making YOU a maritime admiralty PRODUCT. That is right you became a PRODUCT of commerce at the time of your birth. Your mother also needs to sign your birth certificate. If you notice on your birth certificate where your mother signed, she is not listed as parent, nor is she listed as mother. Where your mother signed your birth certificate she is known as informant!

    The United States Court system operates under Admiralty law!

    Source: Google
    What or who did my mother inform?

    Your mother informed the banks that she had just produced another product to be used in commerce. Your actual physical body is owned by England, actually to be more precise, your body is owned by the British Crown. That is the LAW!

    It all comes down to this; YOU ARE A MARITIME ADMIRALITY PRODUCT!

    YOUR BODY IS OWNED BY THE BANKS!

    If you look at your social security card, you will see numbers in red on the back of the card. The front of the card will be printed in either blue or black, but the numbers on the back will be in RED.

    What are these numbers on the back of my Social security card?

    These numbers which appear in red on the back of your social security card represent your body. Your body is bought and sold on stock markets. The numbers In red on the back of the card is the serial number of your stock. Poor people are considered common stock and the wealthy is known as preferred stock.

    Just like any other stock, your body is traded on open markets though the use of your birth certificate. If you could see your original certificate of birth, you would see on the back of the certificate marks from banks from all over the globe. World banks trade your body just as they do every other commodity. This is because you are stock in a maritime admiralty banking scheme where you are used to return profits to the bank.

    I still do not believe it. Why wasn’t this taught in school?

    I know it sounds insane but please be patient.

    Be aware of your surroundings and do not take things for granted. Just because you were not taught it in school does not mean it is not real!

    Look at your bills, check out your drivers license, your social security card, utility bills, anything with your name on it.

    What do you see?

    Any form that is used for business purposes will have YOUR NAME in capital letters.

    I notice but why is it printed like that ?

    Anytime you are involved in business transactions, you will always see YOUR NAME in CAPITAL LETTERS. Only in this form are you able to deal with either banks or the government. Whenever Your name is spelled with a combination of capital and lower case letters it refers directly to you as a natural person.

    Since the banks and government have no control over natural born people, they will not deal with you as a person. Only your straw man is able to engage in commerce.

    Once you sign a contract which uses YOUR NAME in capital letters you have given your consent to this artificial entity. Now you can be brought into a Court.

    When you find yourself in a Court you will be asked to stand before the bench. In Latin the term for bench is banco, or more simply put bank. So a judge sits on a bench, they also rule from the bench. In other words the judge rules for the bank. Words have meaning!

  • AnnaMae

    The Roberts Court has been a disaster for democracy. Mr. Tribe should be talking more about the direct negative impact of Citizens United, instead of brushing it off as a minor change. That ruling has greatly undermined the power ordinary citizens have to influence elections; in fact, our votes barely (if at all) count anymore, against the millions wealthy agencies can pour into influencing elections. (Advertising does work, and they have the money to pay for it, and now–no limits.)
    What about the Court’s striking down of a significant part of the Voting Rights Act? These two actions alone have weakened our democracy!
    What about their selection of GW Bush, who was not elected? The result for our country has been catastrophic (if you consider illegally invading another nation & not even funding that war catastrophic; I do).
    The Roberts Court is shamefully partisan on the side of the wealthy, against the concept of “one person one vote,” against the rights of minority voters in states with a demonstrably racist history to even be allowed to vote.
    The Roberts Court is moving us directly to rule by the wealthy, the few. How can anyone argue that this is what the founders envisioned? As a lower middle-class American, I feel my right to have a voice in democracy is about gone. The middle class, in fact, is disappearing–apparently a good thing to Roberts and his cronies who always vote with him.

    • ExcellentNews

      Well said. Actually, the most catastrophic aspect of the GW Bush presidency was the creation of a Ponzi economy. A policy of ignorance and of “privatizing the gains, socializing the losses” led to the transfer of ~10 TRILLION from the middle class into the offshore accounts of a handful of oligarchs and hedge funds.

      Our nation can easily survive an ill-conceived military adventure against a third-world nation. Our nation CANNOT survive a banana-republic economic policy of “small” government funded by billionaires. Our nation cannot survive tax cuts for predatory bankers and for CEOs who outsource jobs to slave-labor dictatorships.

      • AnnaMae

        I agree and could not have explained it as well. It’s not that I’m partisan, either… I’ve long admired some Republican presidents… Eisenhower, Lincoln, others. Even Bush Sr. was ok. But “W”–and our present Roberts Court–I can’t think of as other than a dismantling of the nation.

        • notafeminista

          You can always hope.

    • slayerhippy

      This (as usual) is a very interesting show and conversation. I have long had a contempt for the idea that money = free speech. However, it is still, by and large, one person-one vote (Please spare me the inevitable argument about disenfranchising the poor/minorities/etc. I KNOW this occurs.) But I was struck by Mr. Tribe’s argument regarding constitutionality and constitutional amendments that a wiser, more practical, and even more honest path to an end would be a constitutional amendment or a law that would mandate a clear, concise, and accessible means of following the money train. Spend all you want on free speech, just show me your face, don’t do it from the back of a dark theater…
      And to ExcellentNews, below, please note that Obama had EVERY chance to extract “justice”, or at least concessions, from the banking industry. He simply chose to go soft on them and push through a health care plan will only serve to further feather the nest of the industry (I HAVE to buy their product, subsidized by the taxpayer vs. a single payer type plan, or any other plan that I would view as constitutional–I don’t buy the power to tax argument.)

  • LeonieLingekym

    my Aunty
    Allison recently got a nice 6 month old Jaguar by working from a macbook.this website C­a­s­h­d­u­t­i­e­s­.­C­O­M­

  • ExcellentNews

    Citizens United. Rubber-stamp for seizure of private property by large corporate interests. Need we say more?

    Yes we need. In most cases, the Court is just applying the law. And the law, since the 90s, has been written by the oligarchy for the oligarchy. The tool for doing so is a gerrymandered Republican Congress, which virtually guarantees that our public policy is set by few hundred billionaires, hedge funds, and private corporations. Rupert Murdoch and King Abdullah exert much more influence on your life than you do. That is THE problem.

  • PaulD

    I haven’t had a chance to listen to this show, but I will.

    I will say this, the politicization cuts both ways. Heller was a 5-4 decision. So be it. However, stare decisis should have dictated that, based on the 14th, the McDonald decision should have been a slam dunk, 9-0 decision. The 14th dictates that the individual rights enumerated in BoR *do* apply to the states. Once the 2nd was determined to be an individual right, there should have been no question about McDonald. But no, 4 of the justices decided to politicize it.

  • Michele Briere

    Why are the Supreme Justices not lawyers? Wouldn’t lawyers be in a better position to interpret law?

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